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EXHIBIT 4.1
REVOLVING CREDIT AGREEMENT
Dated as of March 9, 1992
SUN HYDRAULICS CORPORATION, a corporation organized under the laws of
the state of Florida (the "Borrower"), and NORTHERN TRUST BANK OF
FLORIDA/SARASOTA, N.A., a Florida banking corporation (the "Lender"), agree as
follows:
SECTION 1 LOANS
SECTION 1.1 LOANS. Subject to the terms and conditions of this
Agreement, the Lender agrees to make loans to the Borrower, from time to time
from the date of this Agreement through March 1, 1994, at such times and in
such amounts, not to exceed XXX XXXXXXX XXXXX XXXXXXX XXXXXXXX XXXXXX XXXXXX
DOLLARS ($1,700,000.00) (the "Commitment") at any one time outstanding, as the
Borrower may request (the "Loan(s)"). During such period, the Borrower may
borrow, repay and reborrow hereunder.
SECTION 1.2 NOTE. The Loans shall be evidenced by a promissory
note (the "Note"), substantially in the form of Exhibit "A", with appropriate
insertions, dated the date hereof, payable to the order of the Lender, in the
principal amount of the Commitment, and with the amounts borrowed and repaid
and the balance indorsed on the grid by the Lender. As long as the Lender is
the holder of the Note it may, at its option, in lieu of endorsing the grid,
record the amounts borrowed and repaid under and the balance due on the Note in
its books and records, which books and records may treat each borrowing as a
separate Loan; such indorsement or recording by the Lender shall be rebuttably
presumptive evidence of the principal balance due on the Note. The principal
of the Note shall be payable on March 1, 1994.
SECTION 2 INTEREST AND FEES
SECTION 2. 1 INTEREST. The unpaid principal amount from time to
time outstanding hereunder shall bear interest at the following rates per year:
(a) before maturity of the Loans, whether by acceleration or otherwise, at a
rate equal to the Prime Rate (as hereinafter defined); and (b) after maturity,
until paid, at a rate equal to two percent in addition to the rate determined
pursuant to (a) (but not less than the Prime Rate in effect at maturity).
"Prime Rate" shall mean that rate of interest per year announced from time to
time by the Lender called its prime rate, which may not at any time be the
lowest rate of interest charged by the Lender. Changes in the rate of interest
resulting from a change in the Prime Rate shall take effect on the date set
forth in each announcement.
SECTION 2.2 BASIS OF COMPUTATION. Interest shall be computed for
the actual number of days elapsed on the basis of a year consisting of 360
days, including the date a Loan is made and
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excluding the date a Loan or any portion thereof is paid or prepaid.
SECTION 2.3 INTEREST PAYMENT DATES. Accrued interest shall be
paid on the first day of each month at maturity and upon payment in full,
beginning with the first of such dates to occur after the date of the first
loan hereunder. After maturity, whether by acceleration or otherwise, accrued
interest shall be paid upon demand.
SECTION 3 PAYMENTS AND PREPAYMENTS
SECTION 3.1 FUNDS. All payments and prepayments of principal,
interest and Commitment Fee shall be made in immediately available funds to the
Lender at its main banking office at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx
00000.
SECTION 4 REPRESENTATIONS AND WARRANTIES
To induce the Lender to make each of the Loans, the Borrower
represents and warrants to the Lender that:
SECTION 4.1 ORGANIZATION. The Borrower is a corporation existing
and in good standing under the laws of the state indicated in the heading; any
subsidiary or any affiliate is a corporation or partnership duly existing and
in good standing under the laws of the state of its formation as indicated on
Exhibit "B"; the Borrower and any subsidiary are duly qualified, in good
standing and authorized to do business in each jurisdiction where, because of
the nature of their activities or properties, such qualification is required;
and the Borrower and any subsidiary have the power and authority to own their
properties and to carry on their businesses as now being conducted.
SECTION 4.2 AUTHORIZATION; NO CONFLICT. The borrowing hereunder,
the execution and delivery of the Note and the performance by the Borrower
of its obligations under this Agreement and the Note are within the Borrower's
corporate powers, have been authorized by all necessary corporate action, have
received all necessary governmental approval (if any shall be required) and do
not and will not contravene or conflict with any provision of law or of the
charter or by-laws of the Borrower or any subsidiary or of any agreement
binding upon the Borrower or any subsidiary.
SECTION 4.3 FINANCIAL STATEMENTS. The Borrower and any
subsidiary and any affiliates reviewed combined financial statements as at
December 31, 1990 and its unaudited combined financial statements as at
September 30, 1991, copies of which have been furnished to the Lender, have
been prepared in conformity with generally accepted accounting principals
applied on a basis consistent with that of the preceding fiscal year, and
accurately present the financial condition of the Borrower and any subsidiary
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and any affiliate as of such dates and the results of their operations for the
respective periods then ended. Since the date of those financial statements,
no material adverse change in the business, properties, assets, operations,
conditions or prospects of the Borrower or any subsidiary and any affiliate has
occurred of which the Lender has not been advised in writing before this
Agreement was signed. There is no known contingent liability of the Borrower
or any subsidiary or any affiliate which is known to be in an amount in excess
of $100,000.00 which is not reflected in such financial statements or of which
the Lender has not been advised in writing before this Agreement was signed.
SECTION 4.4 TAXES. Federal income tax returns for the Borrower
and any subsidiary have been examined and closed by the Internal Revenue
Service for all years including the year ended December 31, 1990. The Borrower
and any subsidiary have filed or caused to be filed all federal, state and
local tax returns which, to the knowledge of the Borrower or any subsidiary,
are required to be filed, and have paid or have caused to be paid all taxes as
shown on such returns or on any assessment received by them, to the extent that
such taxes have become due (except for current taxes not delinquent and taxes
being contested in good faith and by appropriate proceedings for which adequate
reserves have been provided on the books of the Borrower or the appropriate
subsidiary, and as to which no foreclosure, distraint, sale or similar
proceedings have been commenced). The Borrower and any subsidiary have set up
reserves which are adequate for the payment of additional taxes for years which
have not been audited by the respective tax authorities.
SECTION 4.5 LIENS. None of the assets of the Borrower or any
subsidiary are subject to any mortgage, pledge, title retention lien, or any
other lien, encumbrance or security interest, except for: (a) current taxes not
delinquent or taxes being contested in good faith and by appropriate
proceedings; (b) liens arising in the ordinary course of business for sums not
due or sums being contested in good faith and by appropriate proceedings, but
not involving any deposits or advances or borrowed money or the deferred
purchase price of property or services; and (c) to the extent specifically
shown in the financial statements referred to above.
SECTION 4.6 ADVERSE CONTRACTS. Neither the Borrower nor any
subsidiary is a party to any agreement or instrument or subject to any charter
or other corporate restriction, nor is it subject to any judgment, decree or
order of any court or governmental body, which may have a material and adverse
effect on the business, assets, liabilities, financial condition, operations or
business prospects of the Borrower and its subsidiaries taken as business pros,
the ability of the Borrower to perform its obligations under this Agreement or
the Note. Neither the Borrower or any subsidiary has, nor with reasonable
diligence should have had, knowledge of or
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notice that it is in default of the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any such
agreement, instrument, restriction, judgment, decree or order.
SECTION 4.7 REGULATION U. The Borrower is not engaged
principally in, nor is one of the Borrower's important activities, the business
of extending credit for the purpose of purchasing or carrying "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereinafter in effect.
SECTION 4.8 LITIGATION AND CONTINGENT LIABILITIES. No litigation
(including derivative actions), arbitration proceedings or governmental
proceedings are pending or threatened against the Borrower which would (singly
or in the aggregate), if adversely determined, have a material and adverse
effect on the financial condition, continued operations or prospects of the
Borrower or any subsidiary, except as set forth (including estimates of the
dollar amounts involved) in a schedule furnished by the Borrower to the Lender
before this Agreement was signed.
SECTION 4.9 SUBSIDIARIES AND AFFILIATES. Attached hereto as
Exhibit "B" is a correct and complete list of all subsidiaries and affiliates
of the Borrower.
SECTION 5 COVENANTS
Until all obligations of the Borrower hereunder and under the Note are
paid and fulfilled in full, the Borrower agrees that it shall, and shall cause
any subsidiary to, comply with the following covenants, unless the Lender
consents otherwise in writing:
SECTION 5.1 CORPORATE EXISTENCE, MERGERS, ETC. The Borrower and
any subsidiary shall preserve and maintain its corporate existence, rights,
franchises, licenses and privileges, and will not liquidate, dissolve, or
merge, or consolidate with or into any other corporation, or sell, lease,
transfer or otherwise dispose of all or a substantial part of its assets,
except that:
(a) Any subsidiary may merge or consolidate with or into the
Borrower or any one or more wholly-owned subsidiaries; and
(b) Any subsidiary may sell, lease, transfer or otherwise dispose
of any of its assets to the Borrower or one or more
wholly-owned subsidiaries.
SECTION 5.2 REPORTS, CERTIFICATES AND OTHER INFORMATION.
The Borrower shall furnish to the Lender:
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(a) Interim Reports. Within 60 days after the end of each quarter
of each fiscal year of the Borrower, a copy of a financial
statement of the Borrower and any subsidiary and any affiliate
prepared on a combined basis consistent with the combined
financial statements of the Borrower and any subsidiary and
any affiliate referred to above, signed by an authorized
officer of the Borrower and consisting of at least (i) a
balance sheet as of the close of each quarter and (ii) a
statement of earnings and source and application of funds for
each quarter and for the period from the beginning of such
fiscal year to the close of such quarter.
(b) Reviewed Report. Within 120 days after the end of each fiscal
year of the Borrower, a copy of an annual reviewed report of
the Borrower and any subsidiary and any affiliate prepared on
a combined basis and in conformity with generally accepted
accounting principles applied on a basis consistent with the
reviewed combined financial statements of the Borrower and any
subsidiary and any affiliate referred to above, reviewed by
independent certified public accountants of recognized
standing satisfactory to the Lender.
(c) Certificates. Contemporaneously with the furnishing of a copy
of each annual report and of each quarterly statement provided
for in this Section, a certificate dated the date of such
annual report or such quarterly statement and signed by either
the President, the Chief Financial Officer or the Treasurer of
the Borrower, to the effect that no Event of Default or
Unmatured Event of Default has occurred and is continuing, or,
if there is any such event, describing it and the steps, if
any, being taken to cure it, and containing (except in the
case of the certificate dated the date of the annual report) a
computation of, and showing compliance with, any financial
ratio or restriction contained in this Agreement.
(d) Reports to SEC and to Shareholders. Copies of each filing and
report made by the Borrower or any subsidiary with or to any
securities exchange or the Securities and Exchange Commission,
except in respect of any single shareholder, and of each
communication from the Borrower or any subsidiary to
shareholders generally, promptly upon the filing or making
thereof.
(e) Notice of Default, Litigation and ERISA Matters. Immediately
upon learning of the occurrence of any of the following,
written notice describing the same and the steps being taken
by the Borrower or any subsidiary affected in respect thereof:
(i) the Event of a
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Default; or (ii) the institution of, or any adverse
determination in, any litigation, arbitration or governmental
proceeding which is material to the Borrower or any subsidiary
on a consolidated basis; or (iii) the occurrence of a
reportable event under, or the institution of steps by the
Borrower or any subsidiary to withdraw from, or the
institution of any steps to terminate, any employee benefit
plans as to which the Borrower or any of its subsidiaries may
have any liability.
(f) Subsidiaries. Promptly from time to time a written report of
any changes in the list of its subsidiaries and any
affiliates.
(g) Other Information. From time to time such other information,
financial or otherwise, concerning the Borrower or any
subsidiary as the Lender may reasonably request.
SECTION 5.3 INSPECTION. The Borrower and any subsidiary
shall permit the Lender and its agents at any time during normal
business hours to inspect their properties and to inspect and make copies of
their books and records.
SECTION 5.4 FINANCIAL REQUIREMENTS. The Borrower and any
subsidiary and any affiliate on a combined basis shall:
(a) Working Capital. Maintain at all times combined net working
capital in an amount equal to at least $1,250,000.00 through
December 31, 1993 and at least $1,700,000.00 thereafter.
Working Capital shall mean the sum of all current assets less
all current liabilities.
(b) Current Ratio. Maintain at all times a combined current ratio
of current assets to current liabilities of not less than
1.20:1 through December 31, 1993 and 1.35:1 thereafter.
(c) Net Worth to Debt. Maintain at all times a combined tangible
net worth of at least $6,750,000.00 and a ratio of
consolidated debt to tangible net worth of not more than
1.80:1.
(d) Fixed Charge Coverage Ratio: Maintain at all times a fixed
charge coverage ratio of at least 1.75:1. This ratio is
determined by earnings before interest expense and taxes, plus
depreciation, divided by all interest expense, current
maturities of all long term debt and current capital lease
obligations.
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(e) Fixed Asset Expenditures. Not make combined expenditures for
fixed assets in any fiscal year in an amount greater than
$1,750,000.00.
SECTION 5.5 INDEBTEDNESS, LIENS AND TAXES. The Borrower and any
subsidiary shall:
(a) Indebtedness. Not incur, permit to remain outstanding, assume
or in any way become committed for indebtedness in respect of
borrowed money, except indebtedness incurred hereunder or to
the Lender and indebtedness existing on the date of this
Agreement shown on the financial statements furnished to the
Lender before this Agreement was signed.
(b) Liens. Not create, suffer or permit to exist any lien or
encumbrance of any kind or nature upon any of their assets now
or hereafter owned or acquired, or acquire or agree to acquire
any property or assets of any character under any conditional
sale agreement or other title retention agreement, but this
Section shall not be deemed to apply to: (i) liens existing on
the date of this Agreement of which the Lender has been
advised in writing before this Agreement was signed; liens of
landlords, contractors, laborers or supplymen, tax liens, or
liens securing performance arising out of the Borrower's
business, provided that tax liens are removed before related
taxes become delinquent and other liens are promptly removed,
in either case unless contested in good faith and by
appropriate proceedings, and as to which adequate reserves
have been established; and (iii) liens securing borrowings or
advances from the Borrower by wholly-owned subsidiaries.
(c) Taxes. Pay and discharge all taxes, assessments and
governmental charges or levies imposed upon them, upon their
income or profits or upon any properties belonging to them,
prior to the date on which penalties attach thereto, and all
lawful claims for labor, materials and supplies when due,
except that no such tax, assessment, charge, levy or claim
need be paid which is being contested in good faith by
appropriate proceedings and to which adequate reserves have
been established, and as to which no foreclosure, distraint,
sale or similar proceedings have commenced.
(d) Keep Well Agreements. Not assume, guarantee, indorse or
otherwise become or be responsible in any manner (whether by
agreement to purchase any obligations, stock, assets, goods or
services, or to supply or advance any funds, assets, goods or
services, or otherwise) with respect to the obligation of any
other person or entity, except by
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the indorsement of negotiable instruments for deposit or
collection in the ordinary course of business and except as
permitted by this Agreement.
SECTION 5.6 INVESTMENTS AND LOANS. Neither the Borrower or any
subsidiary shall make any loan, advance,, extension of credit or capital
contribution to, or purchase or otherwise acquire for a consideration,
evidences of indebtedness, capital stock or other securities of any legal
entity, except that the Borrower and any subsidiary may:
(a) purchase or otherwise acquire and own short-term money market
items;
(b) extend credit upon customary terms to their customers in the
ordinary course of their business; and
(c) extend credit to officers and employees in accordance with
policies in effect on the date of this Agreement of which the
Lender has been advised in writing.
SECTION 5.7 CAPITAL STRUCTURE AND DIVIDENDS. Without Lender's
prior written consent, which consent shall not be unreasonably withheld,
neither the Borrower nor any subsidiary shall purchase or redeem, or obligate
itself to purchase or redeem, any shares of the Borrower's capital stock, of
any class, issued and outstanding from time to time; or declare or pay any
dividends in excess of reported net income and depreciation charge for the year
reported (other than dividends payable in its own common stock or to the
Borrower) or make any other distribution in respect of such shares other than
to the Borrower. The Borrower shall continue to own, directly or indirectly,
the same (or greater) percentage of the stock of each subsidiary that
it held on the date of this Agreement, and no subsidiary shall issue any
additional securities other than to the Borrower.
SECTION 5.8 MAINTENANCE OF PROPERTIES. The Borrower and any
subsidiary shall maintain, or cause to be maintained, in good repair, working
order and condition, all their properties (whether owned or under lease), and
from time to time make or cause to be made all needed and appropriate repairs,
renewals, replacements, additions, betterments and improvements thereto, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
SECTION 5.9 INSURANCE. The Borrower and any subsidiary shall
maintain insurance in responsible companies in such amounts and against such
risks as is required by the Lender and, at a minimum, insurance on their
business, fixed assets, inventory and other properties, workmen's compensation
or similar insurance as required by law, and adequate public liability
(including product liability) insurance against claims for personal injury,
death or
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property damage arising out of its products, facilities or operations, as is
usually carried by similar businesses conducting operations in similar areas.
SECTION 5.10 USE OF PROCEEDS.
(a) General. The Borrower and any subsidiary shall not use or
permit any proceeds of the Loans to be used, either directly
or indirectly, for the purpose, whether immediate, incidental
or ultimate, of purchasing or carrying any margin stock"
within the meaning of Regulations U or X of the Board of
Governors of the Federal Reserve System, as amended from time
to time. If requested by the Lender, the Borrower and any
subsidiary will furnish to the Lender a statement in
conformity with the requirements of Federal Reserve Form U-1
to the foregoing effect. No part of the proceeds of the Loans
will be used for any purpose which violates or is inconsistent
with the provisions of Regulation U or X of the Board of
Governors.
(b) Tender Offers and Going Private. Neither the Borrower nor any
subsidiary shall use (or permit to be used) any proceeds of
the Loans to acquire any security in any transaction which is
subject to Section 13 and 14 of the Securities Exchange Act of
1934, as amended, or any regulations or rulings thereunder.
SECTION 6 CONDITIONS OF LENDING
The obligation of the Lender to make each of the Loans is subject to
the following conditions precedent:
SECTION 6.1 DOCUMENTATION; FIRST LOAN. In addition to the
conditions precedent set forth in Section 6.2, the obligation of the Lender to
make the first Loan is subject to the conditions precedent that the Lender
shall have received all of the following, each duly executed and dated the date
of the first Loan, in form and substance satisfactory to the Lender and its
counsel, at the expense of the Borrower, and in such number of signed
counterparts as the Lender may request (except for the Note, of which only the
original shall be signed):
(a) Note. The Note in the form of Exhibit "A" with appropriate
insertions;
(b) Resolution. A copy of a resolution of the Board of Directors
to the Borrower authorizing or ratifying the execution,
delivery and performance, respectively, of this Agreement, the
Note and the other documents provided for in this Agreement,
certified by the Secretary of the Borrower;
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(c) Articles of Incorporation and By-laws. A copy of the articles
of incorporation and by-laws of the Borrower, certified by the
Secretary of the Borrower;
(d) Certificate of Incumbency. A certificate of the Secretary of
the Borrower certifying the names of the officer or the
officers of the Borrower authorized to sign this Agreement,
the Note and the other documents provided for in the
Agreement, together with a sample of the true signature of
each such officer (the Lender may conclusively rely on such
certificate until formally advised by a like certificate of
any changes therein);
(e) Certificate of No Default. A certificate signed by the
President, the Chief Financial Officer or the Treasurer of the
Borrower to the effect that: (i) no Event of Default or
Unmatured Event of Default has occurred and is continuing or
will result from the making of the first Loan; and (ii) the
representations and warranties of the Borrower contained
herein are true and correct as at the date of the first Loan
as though made on that date;
(f) Opinion of Counsel to the Borrower. An opinion of counsel to
the Borrower to such effect as the Lender may require; and
(g) Miscellaneous. Such other documents and certificates as the
Lender may request.
SECTION 6.2 REPRESENTATION AND WARRANTIES; NO DEFAULT.
(a) Representations and Warranties. At the date of each Loan the
Borrower's representations and warranties set forth herein
shall be true and correct as at such date with the same effect
as though those representations and warranties had been made
on and as at such date.
(b) No Default. At the time of each Loan, and immediately after
giving effect to each Loan, the Borrower shall be in
compliance with all the terms and provisions set forth herein
on its part to be observed or performed, and no Event of
Default or Unmatured Event of Default shall have occurred and
be continuing at the time of any Loan, or would result from
the making of any Loan.
SECTION 6.3 SUCCEEDING LOANS. The application by the Borrower
for any Loan other than the first shall be deemed a representation and warranty
by the Borrower that the statements in Section 6.2 are true and correct on and
as of the date of each such Loan.
SECTION 7 DEFAULT
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SECTION 7.1 EVENTS OF DEFAULT. Each of the following occurrences
is hereby defined as an "Event of Default":
(a) Nonpayment. The Borrower shall fail to make any payment of
principal, interest, or other amounts payable hereunder when
and as due; or
(b) Default under Related Documents. Any default, event of
default, or similar event shall occur or continue under any
instrument, document, note, agreement, or guaranty delivered
to the Lender in connection with the Loans, or any such
instrument, document, note, agreement, or guaranty shall not
be, or shall cease to be, enforceable in accordance with its
terms; or
(c) Cross-Default.
(i) There shall occur any default or event of default, or
any event which might become such with notice or the
passage of time or both, or any similar event, or any
event which requires the prepayment of borrowed money
or the acceleration of the maturity thereof under the
terms of any evidence of indebtedness or other
agreement issued or assumed or entered into by the
Borrower or any subsidiary or under the terms of any
indenture, agreement or instrument under which any
such evidence of indebtedness or other agreement is
issued, assumed, secured or guaranteed, and such
event shall continue beyond any applicable period of
grace;
(ii) There shall occur any default or event of default by
Suninco, Inc., a Florida corporation, under that
certain Promissory Note dated January 9, 1991, in
favor of Lender in the original principal balance of
$2,000,000.00 or the Mortgage securing the
indebtedness of like date, which is recorded in O.R.
Book 2358, Page 2881, Public Record of Sarasota
County, Florida.
(d) Dissolutions, etc. The Borrower shall fail to comply with any
provision concerning its existence or that of any subsidiary
or any prohibition against dissolution, liquidation, merger,
consolidation or sale of assets; or
(e) Warranties. Any representation, warranty, schedule,
certificate, financial statement, report, notice or other
writing furnished by or on behalf of the Borrower to the
Lender is false or misleading in any material respect on the
date as of which the facts therein set forth are stated or
certified; or
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(f) Change in Control. Any person or entity presently not in
control of the Borrower shall obtain control directly or
indirectly of the Borrower, whether by purchase or gift of
stock or assets, by contract, or otherwise; or
(g) ERISA. Any reportable event shall occur under the Employee
Retirement Income Security Act of 1974, as amended, in respect
of any employee benefit plan maintained for employees of the
Borrower or any subsidiary; or
(h) Litigation. Any suit, action or other proceeding (judicial or
administrative) commenced against the Borrower or any
subsidiary, or with respect to any assets of the Borrower or
any subsidiary, shall threaten to have a material and adverse
affect on the future operations of the Borrower or any
subsidiary; or a final judgment or settlement in excess of
$100,000.00 in excess of insurance shall be entered in, or
agreed to in respect of, any such suit, action or proceeding;
or
(i) Noncompliance with this Agreement. The Borrower shall fail to
comply with any provision hereof, which failure does not
otherwise constitute an Event of Default, and such failure
shall continue for ten days after notice thereof to the
Borrower by the Lender or any other holder of the Note; or
(j) Guaranty. Any guaranty of the Loans shall be repudiated or
become unenforceable or incapable of performance; or
(k) Bankruptcy. Any bankruptcy, insolvency, reorganization,
arrangement, readjustment, liquidation, dissolution, or
similar proceeding, domestic or foreign, is instituted by or
against the Borrower or any subsidiary, or the Borrower or any
subsidiary shall take a step toward, or to authorize, such a
proceeding; or
(l) Insolvency. The Borrower or any subsidiary shall become
insolvent, generally shall fail or be unable to pay its debts
as they mature, shall admit in writing its inability to pay
its debts as they mature, shall make a general assignment for
the benefit of its creditors, shall enter into any composition
or similar agreement, or shall suspend the transaction of all
or a substantial portion of its usual business.
SECTION 7.2 REMEDIES. Upon the occurrence of any Event of Default set
forth in Section 7.1 and during the continuance thereof, the Lender or any
other holder of the Note may declare the Note and any other amounts owed to the
Lender to be immediately due and payable, whereupon the Note and any other
amounts owed to the
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Lender shall forthwith become due and payable. Upon the occurrence of any
Event of Default, any obligation of the Lender to make Loans shall immediately
and automatically terminate without action of any kind on the part of the
Lender. The Borrower expressly waives presentment, demand, notice or protest
of any kind in connection herewith. The Lender shall promptly give the
Borrower notice of any such declaration, but failure to do so shall not impair
the effect of such declaration. No delay or omission on the part of the Lender
or any holder of the Note in exercising any power or right hereunder or under
the Note shall impair such right or power or be construed to be a waiver of any
Event of Default or any acquiescence therein, nor shall any single or partial
exercise of any power or right hereunder preclude other or further exercise
thereof, or the exercise of any other power or right.
SECTION 8 DEFINITIONS
SECTION 8.1 GENERAL. As used herein:
(a) The term "affiliate" means any corporation of which the
Borrower owns directly or indirectly 20% or more, but less
than 50%, of the outstanding voting stock, or any partnership,
joint venture, trust or other legal entity of which the
Borrower has effective control, by contract or as otherwise
listed on Exhibit "B".
(b) The term "subsidiary" means any corporation, partnership,
joint venture, trust or other legal entity of which the
Borrower owns directly or indirectly 50% or more of the
outstanding voting stock or interest, or of which the Borrower
has effective control, by contract or otherwise or as
otherwise listed on Exhibit "B".
(c) The term "Unmatured Event of Default" means an event or
condition which would become an Event of Default with notice
or the passage of time or both.
(d) Except as and unless otherwise specifically provided herein,
all accounting terms in this Agreement shall have the meanings
given to them by generally accepted accounting principals and
shall be applied and all reports required by this Agreement
shall be prepared, in a manner consistent with the audited
financial statements referred to in Section 4.3.
SECTION 8.2 APPLICABILITY OF SUBSIDIARY AND AFFILIATE REFERENCES.
Terms hereof pertaining to any subsidiary or affiliate shall apply only during
such times as the Borrower has any subsidiary or affiliate.
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SECTION 9 MISCELLANEOUS
SECTION 9.1 WAIVER OF DEFAULT. The Lender may, by written notice
to the Borrower, at any time and from time to time, waive any Event of Default
or Unmatured Event of Default, which shall be for such period and subject to
such conditions as shall be specified in any such notice. In the case of any
such waiver, the Lender and the Borrower shall be restored to their former
position and rights hereunder and under the Note, respectively, and any Event
of Default or Unmatured Event of Default so waived shall be deemed to be cured
and not continuing; but no such waiver shall extend to or impair any right
consequent thereon or to any subsequent or other Event of Default or Unmatured
Event of Default.
SECTION 9.2 NOTICES. All notices, requests and demands to or
upon the respective parties hereto shall be deemed to have been given or made
when deposited in the mail, postage prepaid, addressed:
(a) if to the Lender to 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx
00000 (Attention: Xxxxx XxXxxxxx)
(b) if to the Borrower to Sun Hydraulics Corporation, 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (Attention: Xx.
Xxxxxxx Xxxxxxx)
or to such other address as may be hereafter designated in writing by the
respective parties hereto.
SECTION 9.3 NONWAIVER; CUMULATIVE REMEDIES. No failure to
exercise, and no delay in exercising, on the part of the Lender of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies of the Lender herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 9.4 SURVIVAL OF AGREEMENTS. All agreements,
representations and warranties made herein shall survive the delivery of the
Note and the making of the Loans.
SECTION 9.5 SUCCESSORS. This Agreement shall, upon execution and
delivery by the Borrower and acceptance by the Lender in Chicago, Illinois,
become effective and shall be binding upon and inure to the benefit of the
Borrower, the Lender and their respective successors and assigns, except that
the Borrower may not transfer or assign any of its rights or interest hereunder
without the prior written consent of the Lender.
SECTION 9.6 CAPTIONS. Captions in this Agreement are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof. References herein to Sections or
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provisions without reference to the document in which they are contained are
references to this Agreement.
SECTION 9.7 SINGULAR AND PLURAL. Unless the context requires
otherwise, wherever used herein the singular shall include the plural and vice
versa, and the use of one gender shall also denote the others where
appropriate.
SECTION 9.8 COUNTERPARTS. This Agreement may be executed by the
parties on any number of separate counterparts, and by each party on separate
counterparts; each counterpart shall be deemed an original instrument; and all
of the counterparts taken together shall be deemed to constitute one and the
same instrument.
SECTION 9.9 FEES. The Borrower agrees to pay or reimburse the
Lender for all costs and expenses of preparing; seeking advice in regard to,
and enforcing this Agreement or the Note, or preserving its rights hereunder or
under any document or instrument executed in connection herewith (including
legal fees and reasonable time charges of attorneys who may be employees of the
Lender, whether in or out of court, in original or appellate proceedings or in
bankruptcy).
SECTION 9.10 CONSTRUCTION. This Agreement, the Note and any
document or instrument executed in connection herewith shall be governed by,
and construed and interpreted in accordance with, the internal laws of the
State of Florida, and shall be deemed to have been executed in the State of
Florida.
SECTION 9.11 SUBMISSION TO JURISDICTION; VENUE. To induce the
Lender to make the Loans, as evidence by the Note and this Agreement, the
Borrower irrevocable agrees that, subject to the Lender's sole and absolute
election, all suits, actions or other proceedings in any way, manner or
respect, arising out of or from or related to this Agreement, the Note or any
document executed in connection herewith, shall be subject to litigation in
courts having situs within Sarasota, Florida. The Borrower hereby consents and
submits to the jurisdiction of any local, state or federal court located within
said city and state. The Borrower hereby waives any right it may have to trial
by jury, to transfer or change the venue of any suit, action or other
proceeding brought against the Borrower by the Lender in accordance with this
Section or to claim that any such proceeding has been brought in an
inconvenient forum.
IN WITNESS WHEREOF, the parties have executed this Agreement on March
9, 1992.
SUN HYDRAULICS CORPORATION
WITNESSES: a Florida Corporaiton
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/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------- ---------------------------------
(Name Xxxxxxx X. Xxxxxxx ) Name: Xxxxx X. Xxxxx
--------------------- -----------------
/s/ Xxxxx X. Xxxxxx As President
--------------------------- ---------
(Name Xxxxx X. Xxxxxx )
---------------------
NORTHERN TRUST BANK OF
FLORIDA/SARASOTA, N.A.
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx X. XxXxxxxx
--------------------------- ---------------------------------
(Name Xxxxxxx X. Xxxxxxx ) Name: Xxxxx X. XxXxxxxx
--------------------- --------------------
/s/ Xxxxx X. Xxxxxx As Vice President
--------------------------- ---------
(Name Xxxxx X. Xxxxxx )
---------------------
STATE OF FLORIDA
COUNTY OF SARASOTA
The, foregoing instrument was acknowledged before me on March 9, 1992,
by Xxxxx X. Xxxxx as President of SUN HYDRAULICS CORPORATION, a Florida
Corporation, on behalf of the corporation, who is (are) personally known to me
or who has produced as ________________________________ identification and who
did (did not) take an oath.
/s/ Xxxxxx X. Xxxxx
-------------------------------
(Name
--------------------------
Notary Public
Serial Number (if any)
---------
Commission Expiration Date
Notary Public, State of Florida
My Commission Expires Sept. 8, 0000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXX
The foregoing instrument was acknowledged before me on March 9, 1992,
by Xxxxx X. XxXxxxxx as _______________ President of NORTHERN TRUST BANK OF
FLORIDA/SARASOTA, N.A., a national association on behalf of the association,
who is (are)personally known to me or who has produced Florida Driver License
as identification and who did (did not) take an oath.
/s/ Xxxxxx X. Xxxxx
-------------------------------
(Name
--------------------------
Notary Public
Serial Number (if any)
---------
Commission Expiration Date
Notary Public, State of Florida
My Commission Expires Sept. 8, 1993
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