EXHIBIT 4.35
MODIFICATION NOTE
[Equipment Loan)
$3,871,754.35 Effective Date: December 23, 2001
Execution Date: January 18, 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 Three Million Eight Hundred
Seventy One Thousand Seven Hundred Fifty Four and 35/100 Dollars
($3,871,754.35), 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 at a fixed rate of 5.3% per annum.
Principal and interest on the loan shall be due and payable in equal
monthly installments of principal and interest in the amount of $89,823.44, the
first such installment to be due and payable on January 23, 2002, with
subsequent installments to be due and payable on the same day of every month
thereafter until December 23, 2005, on which date the then remaining unpaid
principal balance, together with all accrued but unpaid interest, shall be due
and payable.
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 Security Agreement (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 Security
Agreement, 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.
Notwithstanding the foregoing, however, all payments shall be due and payable as
of the dates set forth above, and the failure to make all payments when due
shall constitute a default under this Note.
This Note is secured by a security agreement (the "Security Agreement")
dated July 23, 1999 herewith made by Maker in favor of Xxxxxx encumbering
personal property described therein (the "Collateral") owned by Maker.
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 (i) all or any part of the Collateral,
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 Collateral, 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 Lender, without in any way modifying,
altering, releasing, affecting or limiting their respective liabilities or the
lien of the Security Agreement, 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
Security Agreement, 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, within
fifteen (15) days after payment is due, this Note (or any installment of
principal or interest hereunder); (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 Security Agreement, 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) 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 Xxxxxx including but
not limited to those certain loans in the current principal amounts of
$7,500,000.00 and $4,425,219.37 evidenced by notes executed by Maker on even
date herewith; (e) the death, dissolution, termination of existence, insolvency,
or business failure of any Obligor; (f) the appointment of a receiver of any
part of the Mortgaged Property; (g) the assignment for the benefit of creditors
or the commencement of any proceedings in bankruptcy or insolvency by or against
any Obligor; (h) 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; (i) 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; (j)
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; (k) 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; (l) any judgment is entered against Maker
that is not satisfied or appealed within 30 days; or (m) 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) or (e) 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
Security Agreement, 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. Any judgment rendered on this Note shall
bear 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
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Security Agreement, or upon the indebtedness evidenced hereby (other than any
federal, state or local income tax imposed upon Lender), 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 Security Agreement, 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 Note amends and replaces that certain note dated July 23, 1999 in
the original principal amount of $7,500,000.00
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 SUN HYDRAULICS CORPORATION,
Sarasota, FL 34243 a Florida corporation
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
As its Corporate Controller
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