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EXHIBIT 4.7
SECURITY AGREEMENT
FOR VALUE RECEIVED, the undersigned SUNINCO, INC., a Florida
corporation ("Suninco"), and SUN HYDRAULICS CORPORATION, a Florida corporation
("Sunopco"), hereinafter collectively called Debtor, (and if more than one,
each of them jointly and severally) does hereby grant to NORTHERN TRUST BANK OF
FLORIDA, N.A., hereinafter called Secured Party, a security interest in and to
the following property ("Collateral"):
All equipment, fixtures and leasehold improvements located on, derived
from, or used in connection with certain real property owned by
Suninco more particularly described on Exhibit "A" attached hereto
("Property") or owned or used in connection with the operation, of
Sunopco conducted on or from the Property, whether now owned or
hereafter acquired by Debtor,
together with (a) all increases, parts, fittings, accessories, equipment and
special tools now or hereafter affixed to all or any part thereof or used in
connection therewith, and all replacements of all or any part thereof; (b) any
proceeds, return premiums and rebates from any property insurance on the
property securing this loan: and (c) any proceeds received should any of the
foregoing be sold, exchanged, collected or otherwise disposed of, provided
however, no provisions herein shall be construed as or deemed authority for
Debtor to sell, exchange or otherwise dispose of the Collateral, without the
prior written consent of Secured Party, except for inventory sold in the
ordinary course of Sunopco's business.
This security interest and assignment is given as security for the
payment of a certain promissory note of even date herewith ("Note") and given
by Suninco to Secured Party in the amount of $2,475,000.00 payable as therein
together, and for the payment of any and all other indebtedness and liabilities
whatsoever of Debtor to Secured Party, due or to become due, direct, indirect,
contingent, several, joint, joint and several and howsoever evidenced or
arising and howsoever owned, held or acquired by the Secured Party whether
through discount, overdraft, purchase, loan, advance, endorsement, guaranty or
any other manner whatsoever.
Except for the security interest granted hereby, and other security
interest held by Secured Party, Debtor is the owner of the Collateral, free
from any adverse lien, security interest or encumbrance and Debtor will defend
the Collateral against all claims and demands of all parties at anytime
claiming the same or interest thereon.
Debtor authorizes the Secured Party to file in Florida a Financing
Statement signed only by the Secured Party describing the Collateral as is
described herein, and to amend the Financing Statement from time to time to
cover the changes in the Collateral,
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and to do all other acts and things that the Secured Party may request to
establish and maintain any valid security interest in the Collateral free of
all other liens and claims whatsoever to secure the payment of the Note.
Debtor will keep the Collateral at the Property and will not remove
the Collateral from the Property without the prior written consent of Secured
Party.
Debtor will not sell, transfer, lease or otherwise dispose of any of
the Collateral or interest therein without the prior written consent of the
Secured Party, except for inventory sold in the ordinary course of Sunopco's
business. Debtor will at all times keep the Collateral free from any adverse
liens, security interest or encumbrance and in good order and repair and will
not waste or destroy the Collateral or any part thereof. Debtor will not use
Collateral in violation of any statute or ordinance. Secured Party may examine
and inspect the Collateral at anytime, whatever located.
Debtor will at all times keep the Collateral insured against loss,
damage, theft and such other risks as the Secured Party may require in such
amounts and companies and under such policies and in such form and for such
periods as shall be satisfactory to the Secured Party, and each policy shall
provide that the loss thereunder and proceeds payable shall be payable to
Secured Party as its interest may appear. Secured Party may pay proceeds of
such insurance to payment of the obligations secured, hereby, whether or not
due. Each such policy shall provide for 30 days written minimum cancellation
notice to Secured Party and each policy shall if Secured Party requests, be
deposited with Secured Party.
Debtor will promptly pay when due all taxes and assessments upon the
Collateral or for its use or operation or upon this agreement or upon the Note.
At its option, the Secured Party may cure any default existing under
this Security Agreement and may charge the Debtor for any expenses or costs
thereby sustained, which amounts shall be immediately due and payable by
Debtor, and shall accrue at the maximum rate permitted by law from the date of
payment by Secured Party.
Debtor shall be in default under this agreement upon the occurrence of
any of the following: (a) failure or omission to pay when due the Note (or any
installment of principal or interest thereunder), (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, the Note, this Security Agreement, or any other loan document
executed in connection herewith, or upon the existence or occurrence of any
circumstance or event deemed a default under the
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Note or any other loan document executed in connection therewith; (c) any
warranty, representation or statement made or furnished by any obligor to
Secured Party for the purpose of inducing Secured Party to make the loan
evidenced by the Note, proves to have been false in any material respect when
made or furnished; (d) a default under any other mortgage encumbering the
Property (whether such other mortgage be held by Secured Party or by a third
party); (e) the institution of foreclosure proceedings of another lien of any
kind on the Property, (whether such other lien be held by Secured Party or by a
third party); (f) the default by Debtor in the payment or performance of any
obligation, covenant, agreement, or liability contained in any other mortgage,
note, obligation or agreement held by Secured Party specifically including but
not limited to (i) that certain revolving line of credit in the amount of
$1,700,000.00; and (ii) equipment loan in the amount of $775,000.00 ("Other
Existing Indebtedness"); (g) the death, dissolution, termination of existence,
insolvency, or business failure of any obligor; (h) the appointment of a
receiver of any part of the Property; (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 Secured Party 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 Secured Party or from the condition of such obligor as
heretofore most recently disclosed to Secured Party in any manner (k) falsity
in any material respect of, or any material omission in, any representation or
statement made to Secured Party by or on behalf of any obligor in connection
with the loan evidenced by the Note; (l) loss, theft, substantial damage,
destruction, sale or encumbrance of any of the Property or any levy, seizure or
attachment thereof; or (m) the pledge, assignment, transfer or granting of a
security interest in any of the Property.
Upon the occurrence of any such default or at anytime thereafter, the
Secured Party may at its option declare all obligations secured hereby
immediately due and payable without notice and may thereupon exercise, with
respect to the Collateral or any part thereof, any or all rights and remedies
available to it under the Florida Uniform Commercial Code. All expenses of
recovering and disposing of the Collateral shall be borne by Debtor. The
requirement of reasonable notice shall be met if such notice is mailed postage
prepaid to Debtor at the address shown at the beginning of this Agreement or at
any other address shown on the records of Secured Party at least five days
before the time of the sale or disposition. Debtor shall be and remain liable
for any deficiency, and secured Party shall account to Debtor for any surplus
arising after any sale of the Collateral.
Each of the named Debtors hereunder severally waives all rights of
homestead exemption, and of presentment, demand for payment, protest, notice of
protest and notice if dishonor;
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consents that the Note or other obligations secured hereby, or any part hereof
may from time to time, be extended or renewed without notice for any period
(whether or not longer than the original period of the Note or obligation);
agrees that the exchange, release, surrender or sale of all or any Collateral
which may be given as security hereunder shall not release or discharge any
party obligated hereunder; agrees that the release of any xxxxx liable upon or
in respect of the Note and other obligations secured shall not release any
other such party; and hereby agrees to pay, in the event of a default, all
costs, expenses and reasonable attorneys' fees (which shall include fees for
legal assistants) incurred by Secured Party as a result of such default by
Debtor, whether or nor incurred in connection with litigation or other legal
proceedings, including those costs, expenses and reasonable attorneys' fees
incurred in appellate proceedings.
Secured Party shall have the right in its own name or in the name of
Debtor to ask, demand, collect, receive, receipt for, xxx for, compound and
give acquittance for, any and all amounts due or to become due on the
Collateral and to endorse the name of Debtor on all commercial paper given in
payment or part payment thereof and in its discretion to file any claim or take
any other action or proceeding which Secured Party may deem necessary or
appropriate to protect and preserve and realize upon the security interest of
Secured Party in the Collateral.
No waiver by Secured Party of any default shall operate as a waiver of
any other default or of the same default on a future occasion. No delay or
omission on the part of Secured Party in exercising any right of remedy shall
operate as a waiver hereof and no single or partial exercise by Secured Party
of any right or remedy shall preclude any other or further exercise thereof or
the exercise of any other right or remedy. Time is of the essence of this
agreement. The provisions of this agreement are cumulative and in addition to
the other provisions of any liability on the Note or other writing evidencing
any liability secured by this agreement or otherwise, and Secured Party shall
have all of the benefits, rights and remedies of and under the Note or other
writing evidencing any liability secured hereby. In addition to all other
rights granted hereunder, Secured Party shall have all of the rights granted a
secured party under the Uniform Commercial Code.
All of the terms used herein which are defined in the Uniform
Commercial Code of Florida have, except where the context indicates otherwise,
the same meaning herein as in said Code, and this agreement and the obligations
hereunder, including matters of construction, validity and performance, shall
be governed by the Laws of Florida. Wherever used herein the singular shall
include the plural, the plural the singular and the use of any gender shall
include all genders.
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Dated at Sarasota, Florida, on March 29, 1996.
SUNINCO, INC., a Florida SUN HYDRAULICS CORPORATION,
corporation a Florida corporation
By /s/ Xxxxx X. Xxxxx By /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx Xxxxx X. Xxxxx
As its President As its President
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EXHIBIT "A"
A PART OF SECTION 6, TOWNSHIP 36 S. RANGE 18 EAST, SITUATED IN SARASOTA COUNTY,
FLORIDA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NW CORNER OF SAID SECTION 6; THENCE EAST ALONG THE NORTH LINE
OF SAID SECTION 6 1438.52 FEET; THENCE SOUTH 50.00 TO AN IRON PIPE AS A POINT
OF BEGINNING; THENCE SOUTH 0#21'30" EAST, PARALLEL WITH THE CENTER LINE OF THE
SEABOARD AIRLINE RAILROAD RIGHT OF WAY AND 75 FEET EASTERLY THEREFROM AT RIGHT
ANGLES, A DISTANCE OF 300.00 FT. THENCE EAST 1400.00 FT.; THENCE N0#21'30" WEST
300.00 FT.; THENCE WEST, ALONG THE SOUTH RIGHT OF WAY LINE OF STATE ROAD 683,
1400.00 FT. TO THE P O B.
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