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Exhibit 4.29
Dated as of July 23, 1999
NOTE
$7,500,000.00 July 23, 1999
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 Seven Million Five Hundred
Thousand and 00/100 Dollars ($7,500,000.00), 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.
From the date hereof to and including July 23, 2000, interest on the
unpaid principal sum outstanding from time to time shall accrue at a variable
rate equal to the prime rate announced by Lender from time to time, minus one
percent (1.00%). The interest rate will be adjusted accordingly on each date of
change in the Prime Rate. The Prime Rate is not necessarily the lowest interest
rate charged by Lender for monies loaned, and is intended solely as an index
reference. Interest shall be due and payable in arrears on the 23rd day of each
calendar month, with the first payment being due and payable August 23, 1999.
Beginning July 23, 2000, interest on the unpaid principal sum
outstanding from time to time shall accrue at a fixed rate equal to the weekly
average yield on United States Treasury securities, adjusted to a constant
maturity of four years, as made available by the Federal Reserve Board, plus
one and three-quarter percent (1.75%). The figures so used to compute the
change in interest rate shall be those figures made most recently available at
least ten days prior to July 23, 2000. In the event said index ceases to be
available, Lender shall have the right to substitute another comparable index
selected in Xxxxxx's discretion. Commencing August 23, 2000, principal and
interest payments will be due and payable in consecutive monthly installments
in amount established by Lender to amortize payments under this Note over a
four (4) year period. The entire unpaid principal balance, together with
accrued interest shall be due and payable July 23, 2004.
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.
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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") of even date 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, or (ii) any beneficial or ownership interest in Maker,
whether held or owned directly or indirectly, if such sale or transfer of
beneficial or ownership interest results in less than thirty five percent (35%)
of Maker being owned by Xxxxxx Xxxxx and/or his immediate family (collectively,
"Xxxxx Family"), or by trusts, partnerships or other entities that are, in
turn, owned and controlled by the Xxxxx Family.
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.
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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) 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) a default under any other mortgage on the Collateral (whether such other
mortgage be held by Lender or by a third party); (e) the institution of
foreclosure proceedings of another mortgage or lien of any kind on the
Collateral (whether such other mortgage or lien be held by Lender or by a third
party); (f) the default by Maker 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 that
certain revolving line of credit loan in the amount of $5,000,000.00 made by
Lender to Maker evidenced by Renewal Master Note dated 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 part of the
Collateral; (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, if such failure continues
beyond any applicable grace period; (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
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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 held by Xxxxxx. The agreements contained in this paragraph to create
cross-defaults under all mortgages, notes, obligations and agreements between
Maker 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.
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 Security Agreement, or upon the
indebtedness evidenced hereby (other than any federal, state or
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local income 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 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.
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/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
As its Chief Financial Officer
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