EXHIBIT 4.33
MODIFICATION NOTE
[Mortgage Loan)
$4,425,219.37 Effective Date: December 1, 2001
Execution Date: January __, 2002
FOR VALUE RECEIVED, SUN HYDRAULICS CORPORATION, a Florida corporation
("Maker"), hereby promises, jointly and severally, to pay to the order of
NORTHERN TRUST BANK OF FLORIDA, N.A. ("Lender") at 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, XX 00000, or at such other place as the holder hereof may from time to
time designate in writing, the principal sum of Four Million Four Hundred Twenty
Five Thousand Two Hundred Nineteen and 37/100 Dollars ($4,425,219.37), or so
much thereof as may be disbursed by Lender to Maker or for Maker's account from
time to time, together with interest at the rate hereinafter specified on such
indebtedness as shall from time to time remain unpaid, until paid in full, such
principal and interest being payable in lawful money of the United States which
shall be legal tender in payment of all debts at the time of payment. Interest
will be calculated on the basis of a 365/360 method, which computes a daily
amount of interest for a hypothetical year of 360 days, then multiplies such
amount by the actual number of days elapsed in an interest calculating period.
Interest on the unpaid principal sum outstanding from time to time
shall accrue from the Effective Date through November 30, 2006, at six and
one-half percent (6.50%) per annum. The interest rate shall be adjusted on
December 1, 2006, (being an "Interest Adjustment Date"), to equal the weekly
average yield on United States Treasury securities, adjusted to a constant
maturity of five years, as made available by the Federal Reserve Board, plus two
percent (2.0%). The figures so used to compute the change in interest rate shall
be those figures made most recently available prior to the Interest Adjustment
Date. In the event said index ceases to be available, Lender shall have the
right to substitute another comparable index selected in Xxxxxx's discretion.
Beginning January 1, 2002, principal and interest on the loan shall be
due and payable in consecutive monthly installments. Until the Interest
Adjustment Date, the monthly installments hereunder shall equal $33,239.02. On
the Interest Adjustment Date, the amount of the monthly installments shall be
increased or decreased so as to maintain an amortization of the loan evidenced
by this Note over a twenty year period, which period shall be deemed to have
commenced on December 1, 2001. The entire unpaid principal balance, together
with accrued interest, shall be due and payable December 1, 2011.
All payments made hereunder shall be applied first to accrued interest
then due and owing; next to amounts expended by Lender to cure any default under
this Note, the Mortgage (as hereinafter defined), or any other loan documents
executed in connection herewith; next to charges, costs, expenses, or attorneys'
fees then due and payable to Lender under this Note, the Mortgage, or any other
loan documents; and the balance, if any, to principal.
This Note may be prepaid, in whole or in part, at any time without
penalty. All prepayments made hereunder shall be applied in the same manner as
other payments made hereunder, as set forth above. The making of any prepayment
shall not relieve Maker from the obligation to make the payments next due
hereunder on a timely basis.
If any payment is more than fifteen (15) days late, Maker agrees to pay
to Lender a late charge equal to five percent (5%) of the payment.
This Note is secured by a mortgage and security agreement (the
"Mortgage") dated June 14, 1996, as amended, made by Maker in favor of Lender
encumbering real property and personal property described therein (the
"Mortgaged Property") located in Manatee County, Florida.
The entire unpaid principal balance hereof together with all accrued
interest due shall, at Xxxxxx's sole option, become immediately due and payable
in the event of the sale or transfer of all or any part of the Mortgaged
Property, or any interest therein.
Each and every party to this Note, whether as Maker, endorser, surety,
guarantor, or otherwise ("Obligor"), hereby waives all rights of homestead and
other exemptions granted by the constitution or laws of Florida, and further
waives presentment, demand, protest, notice of dishonor, notice of nonpayment,
notice of protest, and diligence in collection, and assents to the terms hereof
and to any extension or postponement of the time for payment or any other
indulgence. It is further specifically agreed that this Note or any part of the
principal or interest due hereon may be renewed, modified or extended, in whole
or in part, such modification to include but not be limited to changes in
payment schedules and interest rates, from time to time by the holder of this
Note, at the request of the then owners of all or part of the Mortgaged
Property, or at the request of any party bound hereon or who has assumed or may
hereafter assume payment hereof, without the consent of or notice to other
parties bound hereon and without releasing them from any liabilities then
existing.
Each and every Obligor hereby consents that the real or personal
property securing this Note, or any part of such security, may be released,
exchanged, added to or substituted for by Xxxxxx, without in any way modifying,
altering, releasing, affecting or limiting their respective liabilities or the
lien of the Mortgage, and further agrees that Lender shall not be required first
to institute any suit, or to exhaust any of its remedies against Maker or any
other person or party liable or to become liable hereunder, in order to enforce
payment of this Note, and further agrees that Maker or any other party liable
hereunder may be released by Xxxxxx from any or all liability under this Note
and such release shall in no way affect or modify the liability of the remaining
parties hereto.
Each and every Obligor hereby consents and agrees that he is bound,
jointly and severally, under the terms hereof and is subject to all of the
provisions set forth herein as fully as though each was an undersigned hereof,
and further consents and agrees that any Obligor may be sued by Xxxxxx without
joining any other Obligor, whether primarily or secondarily liable.
Notwithstanding anything contained herein to the contrary or in the
Mortgage, or other loan documents executed in connection herewith, no payee or
holder of this Note shall ever be entitled to receive, collect or apply as
interest on the obligation evidenced hereby any amount in excess of the maximum
rate of interest permitted to be charged by applicable law and, in the event
Lender or any holder hereof ever receives, collects or applies as interest any
such excess, such amount which would be excessive interest shall be applied to
the reduction of the principal sum; and, if the principal sum is paid in full,
any remaining excess shall forthwith be paid to Maker. In determining whether or
not the interest paid or payable under any specific contingency exceeds the
highest lawful rate, Maker and Lender shall, to the maximum extent permitted
under applicable law: (a) characterize any non-principal payment as an expense,
fee or premium rather than as interest; (b)
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exclude voluntary prepayments and the effects thereof; and (c) spread the total
amount of interest, or charges in the nature of interest, pursuant to applicable
law.
As used herein, "Event of Default" shall mean the occurrence of any of
the following events or conditions: (a) failure or omission to pay when due this
Note (or any installment of principal or interest hereunder) within fifteen (15)
days after payment is due; (b) default in the payment (other than payment of
principal and interest) or performance of any obligation, covenant, agreement or
liability contained or referred to in the Mortgage, this Note, or any other loan
document executed in connection herewith, or upon the existence or occurrence of
any circumstance or event deemed a default under this Note or any other loan
document executed in connection herewith; (c) any warranty, representation or
statement made or furnished by any Obligor to Lender for the purpose of inducing
Lender to make the loan evidenced by this Note, proves to have been false in any
material respect when made or furnished; (d) a default under any other mortgage
on the Mortgaged Property (whether such other mortgage be held by Xxxxxx or by a
third party); (e) the institution of the foreclosure proceedings of another
mortgage or lien of any kind on the Mortgaged Property (whether such other
mortgage or lien be held by lender or by a third party); (f) the default by
Maker or any party obligated under this Note or any guaranty hereof or any
affiliate of any of the foregoing ("Affiliated Companies") in the payment or
performance of any obligation, covenant, agreement, or liability contained in
any other mortgage, note, obligation or agreement held by Lender including but
not limited to those certain loans in the current principal amounts of
$4,094,669.00 and $7,500,000.00 evidenced by notes executed by Maker on even
date herewith; (g) the death, dissolution, termination of existence, insolvency,
or business failure of any Obligor; (h) the appointment of a receiver of any
property of an obligor; (i) the assignment for the benefit of creditors or the
commencement of any proceedings in bankruptcy or insolvency by or against any
Obligor; (j) the determination by Lender that a material adverse change has
occurred in the financial condition of any Obligor from the conditions set forth
in the most recent financial statement of such Obligor heretofore furnished to
Lender or from the condition of such Obligor as heretofore most recently
disclosed to Lender in any manner; (k) the failure by Maker or any party
obligated under this Note or any guaranty hereof to make any payment of
principal or interest when due under any obligation to any other creditor; (l)
any substantial part of the inventory, equipment, or other property of Maker,
real or personal, is damaged or destroyed and the damage or destruction is not
covered by collectible insurance; (m) Maker suffers or permits any lien,
encumbrance, or security interest to arise or attach to any of Maker's property,
which is not satisfied within 30 days; (n) any judgment is entered against Maker
that is not satisfied or appealed within 30 days; or (o) falsity in any material
respect of, or any material omission in, any representation or statement made to
Lender by or on behalf of any Obligor in connection with the loan evidenced by
this Note. Upon the occurrence of any such default or at any time thereafter,
subject to the grace period, if any, provided in this Note, Lender may, at its
option, declare the whole amount of principal and interest provided for in and
by this Note, and any and all other secured indebtedness, immediately due and
payable without demand or notice of any kind to any person, and the same
thereupon shall become immediately due, payable and collectible (by foreclosure
or otherwise) at once and without notice to Maker. Any default hereunder shall
constitute a default under any other mortgage, note, obligation or agreement of
Maker or any Affiliated Company held by Lender. The agreements contained in this
paragraph to create cross-defaults under all mortgages, notes, obligations and
agreements between Maker, and any Affiliated Company, and Lender, whether
currently existing or hereafter created, in the event of default under one or
more of such mortgages, notes, obligations or agreements are a material and
specific inducement and consideration for the making by Lender of the loan
evidenced by this Note.
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Notwithstanding the provisions of the foregoing paragraph to the
contrary, in the event of a non-monetary default of the type set forth in
subsections (b), (d), (f), (j) or (l) of the foregoing paragraph, then prior to
Lender precipitating to maturity the full unpaid balance of this Note or
otherwise exercising any rights available to Lender under the terms of this Note
or any other loan document executed in connection herewith, Lender shall give
written notice to Maker and Maker shall have a period of thirty (30) days from
the date such notice is given in which to cure such default; provided, however,
if such default cannot, with due diligence, be cured within said 30 day period,
and such default does not threaten to impair Xxxxxx's security for this Note,
then the 30 day period shall be extended for such period as may be reasonably
necessary to complete the curing of same, provided that Maker proceeds with all
due diligence and continuity to cure the default. Notice required hereunder may,
at the option of Lender, be given by either certified mail, registered mail,
regular mail, facsimile transmission, Federal Express or other express courier,
or by personal delivery, and shall be deemed given when mailed, transmitted,
placed with the courier or delivered to Maker, whichever is first. In the event
the default is not cured within the time provided, then Lender shall have the
right to accelerate this Note and proceed to enforce this Note and the loan
documents, without further notice to Maker.
It is expressly agreed that upon the occurrence of an Event of Default,
or if Lender shall deem itself insecure (because the prospect of timely payments
is impaired, because the value of Xxxxxx's security is impaired, because the
prospect of performance of any covenant or agreement under this Note, the
Mortgage, or any other loan document is impaired, because of any change of
circumstance which adversely affects any matters originally considered by Lender
in making the loan, or otherwise), then or at any time thereafter at the option
of Lender, the whole of the principal sum remaining unpaid hereunder, together
with all accrued and unpaid interest thereon, shall become due and payable
immediately without notice, anything contained herein to the contrary in any way
notwithstanding, and in any such event Lender shall have the right to set-off
against this Note all money owed by Lender in any capacity to any Obligor,
whether or not due, and Lender shall be deemed to have exercised such right of
set-off and to have made a charge against any such money immediately upon the
occurrence of an Event of Default although made or entered on the books
subsequent thereto. From and after an Event of Default, the interest rate on the
entire outstanding principal balance hereunder shall accrue at the highest rate
permitted to be charged by applicable law ("Default Rate"). In the event the
Default Rate shall be applicable and Lender has not accelerated this Note, the
amount of each payment otherwise due hereunder shall be increased to an amount
equal to the regular amount of the principal installment due hereunder, plus
accrued interest at the Default Rate.
Each Obligor shall be obligated to pay as part of the indebtedness
evidenced by this Note all costs of collection, whether or not a suit is
brought, including any reasonable attorneys' fees that may be incurred in the
collection or enforcement hereof. The term "attorneys' fees" shall include but
not be limited to any such fees incurred in any appellate or related ancillary
or supplementary proceedings, whether before or after final judgment related to
the enforcement or defense of this Note.
If at any time any federal, state, county or municipal government or
agency thereof shall impose any documentary stamp tax, intangible tax, or any
other type of tax upon this Note or the Mortgage, or upon the indebtedness
evidenced hereby (other than any federal, state or local income
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tax imposed upon Xxxxxx), then Maker shall pay same within fifteen (15) days
after demand by Xxxxxx, together with any interest and penalties thereon.
Time is of the essence of this Note. The remedies of Lender as provided
herein or in the Mortgage, or any other loan document executed in connection
herewith, shall be cumulative and concurrent, and may be pursued singularly,
successively or together, at the sole discretion of Lender, and may be exercised
as often as occasion therefor shall arise. No act or omission of Lender,
including specifically any failure to exercise any right, remedy or recourse,
shall be deemed to be a waiver or release of such right, remedy or recourse, and
any waiver or release may be effected only through a written document executed
by Xxxxxx and then only to the extent specifically recited therein. A waiver or
release with respect to any one event shall not be construed as continuing as a
bar to, or as a waiver or release of, any subsequent right, remedy or recourse
as to any subsequent event.
The term "Lender" where used herein shall include Xxxxxx's successors
and assigns. The term "Maker" shall include each person signing this Note,
jointly and severally, and their respective heirs, successors and assigns. The
term "Obligor" shall include Maker and every person who is an endorser,
guarantor, or surety of this Note, or who is otherwise a party hereto, and their
respective heirs, successors and assigns. The terms "person" and "party" shall
include individuals, firms, associations, joint ventures, partnerships, estates,
trusts, business trusts, syndicates, fiduciaries, corporations, and all other
groups or combinations. Whenever used herein, the singular number shall include
the plural, the plural the singular, and the use of any gender shall include all
genders. This Note shall be construed under Florida law.
This is a modification of that certain note dated March 1, 1999 in the
principal amount of $4,840,738.63. State of Florida documentary stamps in the
amount required by law were paid on the mortgage securing the note which this
Note modifies. No further State documentary stamps are required.
IN WITNESS WHEREOF, Maker has caused this Note to be duly executed and
delivered as of the date first above written.
Maker's Address:
0000 Xxxxxxxxxx Xxxxxxx XXX XXXXXXXXXX XXXXXXXXXXX,
Xxxxxxxx, XX 00000 a Florida corporation
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
As its President
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