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EXHIBIT 4.33
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT made on this 1st day of
November, 2000, by and among NORTHERN TRUST BANK OF FLORIDA, N.A. ("Lender"),
SUN HYDRAULICS CORPORATION, a Florida corporation ("Borrower"), and SUN
HYDRAULIK HOLDINGS LIMITED, a corporation organized and existing under the laws
of the United Kingdom, SUN HYDRAULICS LIMITED, a corporation organized and
existing under the laws of the United Kingdom, and SUN HYDRAULIK GMBH, a
corporation organized and existing under the laws of Germany (collectively
referred to herein as "Guarantors").
W I T N E S S E T H :
WHEREAS, Lender has made a revolving line of credit loan to Borrower in
the maximum principal amount of $7,500,000.00 ("Loan"), which loan is evidenced
by a renewal master note of even date herewith in the principal amount of
$7,500,000.00 ("Note"), and
WHEREAS, the Note renewed, restated, amended and replaced in its
entirety, that certain renewal master note dated July 23, 1999, in the principal
amount of $5,000,000.00, and
WHEREAS, in connection with making the Loan, Borrower, Guarantors, and
Lender entered into a loan agreement dated July 23, 2000 ( "Original Loan
Agreement"), and
WHEREAS, Borrower has requested Lender to modify certain terms of the
Original Loan Agreement and other loan documents, and Lender has agreed to do so
provided that Borrower enter into this Amended and Restated Loan Agreement
("Loan Agreement"),
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein contained, the parties hereto agree as follows:
1. LOAN TO BORROWER; EXECUTION OF LOAN DOCUMENTS. Lender agrees, in
accordance with the terms of this Agreement, to make the Loan to Borrower.
Concurrently herewith, Borrower has executed the Note, an amendment to that
certain Loan Agreement dated July 23, 1999 (the "First Amendment to Loan
Agreement"), an amendment to that certain Security Agreement dated July 23, 1999
(the "First Amendment to Security Agreement"), and other documents related to
the Loan. Guarantors have each executed separate guaranties of the Loan
("Guaranties"). The Note, First Amendment to Loan Agreement, First Amendment to
Security Agreement, Guaranties, this Agreement and other documents are
collectively referred to herein as the "Loan Documents."
2. COSTS AND EXPENSES. Borrower shall pay all costs and expenses
incurred in connection with preparation for, closing, and servicing the Loan
including, without limitation, any legal fees, including the fees of Lender's
counsel, intangible taxes, documentary taxes, recording costs, and document
preparation fees.
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3. REPRESENTATIONS AND WARRANTIES. To induce Lender to make the Loan,
Borrower makes the following representations and warranties:
A. The financial information for Borrower and each guarantor
or other obligor furnished to Lender in connection with Borrower's application
for the Loan is complete and accurate. There has been no material nor adverse
change in the financial condition of either Borrower or any guarantor or other
obligor of the Loan from that reflected on such financial information.
B. Borrower is a duly organized corporation, existing and in
good standing under the laws of the State of Florida, has corporate power to
carry on the business in which it is engaged, and the obtaining and performing
of the Loan has been duly authorized by all necessary actions of the board of
directors and shareholders of the corporation under applicable law, and do not
and will not violate any provisions of applicable law or any of its
organizational documents.
C. The obtaining and performing of the Loan does not and will
not result in a breach of, constitute a default under, require any consent
under, or result in the creation of any lien, charge, or encumbrance upon any
property of Borrower pursuant to any instrument, order, or other agreement to
which Borrower is a party or by which Borrower, any of its officers as such, or
any of its property is bound.
D. There are no judgments, liens, encumbrances, or other
security interests outstanding against Borrower or any of its subsidiaries, or
any of their properties other than those disclosed to Lender in connection with
Borrower's request for the Loan, nor is there any pending or, to Borrower's
knowledge, threatened litigation that is reasonably likely to give rise to any
such judgment, lien or encumbrance.
E. Neither Borrower nor any of its subsidiaries have incurred
any debts, liabilities, or obligations (whether direct or contingent) nor
committed themselves to incur any debts, liabilities, or obligations other than
those disclosed to Lender in connection with Borrower's request for the Loan or
shown on the financial statements submitted to Lender.
F. Neither Borrower nor any of its subsidiaries have made any
assignment for the benefit of their creditors, admitted in writing their
inability to pay their debts as they become due, filed a petition of bankruptcy
or been adjudicated bankrupt or insolvent, or filed a petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, receivership or similar relief under any statute, law or
regulation.
G. There are no actions, suits or proceedings pending or, to
Borrower's knowledge, threatened against or affecting Borrower or any of its
subsidiaries, the Collateral or any guarantor or obligor on the Loan, or
involving the validity or enforceability of the Security Agreement or the
priority of the lien thereof, at law or in equity, or before or by any
governmental authorities, and neither Borrower nor any of its subsidiaries is in
default with respect to any order, writ, injunction, decree or demand of any
court or any governmental authority.
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H. The obtaining of the Loan and the consummation of all other
transactions contemplated by the Loan Documents, and performance under the Loan
Documents, will not result in any breach of, or constitute a default under, any
mortgage, indenture, security agreement, lease, loan, credit agreement or any
other contract or instrument to which the Borrower or any of its subsidiaries is
a party or by which their properties may be bound or affected.
4. GUARANTORS' REPRESENTATIONS AND WARRANTIES. To induce Lender to make
the Loan, each Guarantor makes the following representations and warranties:
A. The financial information for each Guarantor furnished to
Lender in connection with Borrower's application for the Loan is complete and
accurate. There has been no material nor adverse change in the financial
condition of any Guarantor from that reflected on such financial information.
B. The obtaining and performing of the Loan does not and will
not result in a breach of, constitute a default under, require any consent
under, or result in the creation of any lien, charge, or encumbrance upon any
property of any Guarantor pursuant to any instrument, order, or other agreement
to which a Guarantor is a party or by which a Guarantor or any of its property
is bound, other than those created by the Loan Documents.
C. There are no judgments, liens, encumbrances, or other
security interests outstanding against a Guarantor or any of its property other
than those disclosed to Lender in connection with Borrower's request for the
Loan, nor is there any pending or, to Guarantor's knowledge, threatened
litigation that could or will give rise to any such judgment, lien or
encumbrance.
D. No Guarantor has incurred any debts, liabilities, or
obligations (whether direct or contingent) and has not committed to incur any
debts, liabilities, or obligations other than those disclosed to Lender in
connection with Borrower's request for the Loan or shown on the financial
statements submitted to Lender.
E. No Guarantor has made any assignment for the benefit of his
creditors, admitted in writing its inability to pay its debts as they become
due, filed a petition of bankruptcy or been adjudicated bankrupt or insolvent,
or filed a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, receivership or similar relief under any
statute, law or regulation.
F. There are no actions, suits or proceedings pending or, to
Guarantor's knowledge, threatened against or affecting any Guarantor, at law or
in equity, or before or by any governmental authorities, and Guarantor is not in
default with respect to any order, writ, injunction, decree or demand of any
court or any governmental authority.
G. The obtaining of the Loan and the consummation of all other
transactions contemplated by the Loan Documents, and performance under the Loan
Documents, will not result in any breach of, or constitute a default under, any
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mortgage, indenture, security agreement, lease, loan, credit agreement or any
other contract or instrument to which any Guarantor is a party or by which its
property may be bound or affected.
5. AFFIRMATIVE COVENANTS. Borrower will:
A. Preserve and keep in force all licenses, permits, and
franchises necessary for the proper conduct of its business and duly pay and
discharge all taxes, assessments, and governmental charges upon Borrower or
against Borrower's property before the date on which penalties attach thereto,
unless and to the extent only that the same shall be contested in good faith and
by appropriate proceedings.
B. Furnish to Lender (i) within 90 days after the close of
each fiscal year a consolidated annual profit and loss statement and balance
sheet on Borrower and its subsidiaries reviewed by an independent certified
public accountant who is satisfactory to Lender; (ii) within 30 days after
filing each year, an executed copy of Borrower's Federal income tax return, and
if any extensions have been filed, copies of each Extension Notice shall be
furnished to Lender within 30 days of filing; and (iii) such other information
reflecting the financial condition of Borrower and/or its subsidiaries as Lender
may request from time to time.
C. Permit any representative or agent of Lender to examine and
audit any or all of Borrower's books and records when requested by Lender.
D. Inform Lender immediately of any material adverse change in
the financial condition of Borrower or any of its subsidiaries. Borrower will
also promptly inform Lender of any litigation or threatened litigation which
might substantially affect Borrower's financial condition.
E. Maintain Borrower's property and equipment in a state of
good repair.
F. Maintain Borrower's net working capital, on a consolidated
basis ("Net Working Capital") in an amount not less than $2,000,000.00 and a
current ratio ("Current Ratio") of not less than 1.2:1.0 at all times during the
term of this Agreement. For the purposes of this Agreement, Net Working Capital
shall mean the excess of Borrower's current assets over current liabilities, on
a consolidated basis with its subsidiaries, which shall be determined in
accordance with generally accepted accounting principles as consistently applied
in the preparation of Borrower's previous financial statements, and Current
Ratio shall mean the quotient of current assets divided by current liabilities,
on a consolidated basis with its subsidiaries.
G. Maintain Borrower's maximum total liabilities to net worth
ratio, on a consolidated basis with its subsidiaries ("Tangible Net Worth")
throughout the term of the Loan at a minimum of 0.85:1.0 at all times during the
term of this Agreement. For the purposes of this Agreement, Tangible Net Worth
shall mean (i) the aggregate amount of assets shown on the balance sheet of
Borrower at any particular date (but excluding from such assets capitalized
organization and development costs, capitalized interest, debt discount and
expense, goodwill, patents, trademarks, copyrights, franchises, licenses,
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amounts due from officers, directors, stockholders and affiliates, and such
other assets as are properly classified "intangible assets" under generally
accepted accounting principles) less (ii) liabilities at such date, all computed
in accordance with generally accepted accounting principles applied on a
consistent basis.
H. Maintain Borrower's debt service coverage ratio, on a
consolidated basis with its subsidiaries ("Debt Service Coverage Ratio")
throughout the term of the Loan at a minimum of 1.2:1.0 on a calendar year basis
for all operations of the Borrower and its subsidiaries, computed as follows:
net profits plus interest, plus depreciation, all divided by interest plus
current maturities of long term debt and capitalized leases, plus unfunded
capital expenditures and advances/withdrawals made to shareholders of Borrower
and/or its subsidiaries.
6. GUARANTORS' AFFIRMATIVE COVENANTS. Each Guarantor will:
A. Furnish to Lender (i) within 90 days after the close of
each calendar year, a financial statement, including income information and
contingent liabilities, certified to Lender; (ii) within 30 days after filing
each year, an executed copy of Guarantor's Federal income tax return; and (iii)
such other information reflecting the financial condition of Guarantor as Lender
may request from time to time. In the event such financial statements disclose a
material, adverse change in the financial condition of Guarantor from the
conditions set forth in any prior financial statement of Guarantor theretofore
furnished to Lender, same shall constitute a default which shall entitle Lender
to all of the rights and remedies provided for in the Note, Security Agreement,
or other Loan Documents.
B. Permit any representative or agent of Lender to examine and
audit any or all of Guarantor's books and records when requested by Lender.
C. Inform Lender immediately of any material adverse change in
the financial condition of Guarantor. Each Guarantor will also promptly inform
Lender of any litigation or threatened litigation which might substantially
affect such Guarantor's financial condition.
7. NEGATIVE COVENANTS. Neither Borrower nor any of its subsidiaries
will, without prior written consent of Lender:
A. Collaterally assign, mortgage, pledge, encumber, or grant
any security interest in any of its assets, whether now owned or hereafter
acquired.
B. Enter into any merger or consolidation, or sell, lease,
transfer, or otherwise dispose of all or any substantial part of its assets,
whether now owned or hereafter acquired.
C. Change the name in which it does business without providing
Lender prior written notice thereof.
D. Move its principal place of business without giving written
notice thereof to Lender at least 30 days prior thereto.
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E. Incur any new debt whether secured or unsecured, except
trade debt for the purchase of equipment which does not exceed $100,000.00 for
any item of equipment, and trade debt for the purchase of inventory.
F. Execute any guarantees or assumptions of any debt, or
endorse any obligations, except that Borrower may guaranty any trade debt for
the purchase of equipment which does not exceed $100,000.00 for any item of
equipment, and trade debt for the purchase of inventory which is incurred by a
subsidiary of Borrower.
G. Enter into any asset sale/leaseback arrangement.
H. Cause or permit any change in senior management of
Borrower's operations.
8. EVENTS OF DEFAULT. The Lender shall have the option to declare the
entire unpaid balance due on the Loan without notice of any kind, if any of the
following events occur:
A. Failure or omission to pay, within fifteen (15) days after
payment is 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 Security Agreement, Loan Agreement, Note,
Guaranties, or any other Loan Document, or upon the existence or occurrence of
any circumstance or event deemed a default under the Note or any other Loan
Document, where such default is not cured within 30 days.
C. Any warranty, representation or statement made or furnished
by Borrower or Guarantors for the purpose of inducing Lender to make the Loan
proves to have been false in any material respect when made or furnished.
D. The default by Borrower or any party obligated under the
Note or any guaranty thereof in the payment or performance of any obligation,
covenant, agreement, or liability contained in any other mortgage, note,
obligation or agreement held by Lender.
E. The death, dissolution, termination of existence,
insolvency, or business failure of Borrower, or any party obligated under the
Note or Guaranties.
F. The assignment for the benefit of creditors or the
commencement of any proceedings in bankruptcy or insolvency by or against
Borrower or by or against any person obligated under the Note or Guaranties.
G. The determination by Lender that a material adverse change
has occurred in the financial condition of Borrower or any person obligated
under the Note or any guaranty thereof, from the conditions set forth in the
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most recent financial statement of such person heretofore furnished to Lender or
from the condition of such person as heretofore most recently disclosed to
Lender in any manner.
H. The failure by Borrower or any party obligated under the
Note or Guaranties thereof 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; provided, however, that the aggregate outstanding
obligation is in excess of $100,000.00, and is not being contested in good
faith.
I. Any substantial part of the inventory, equipment, or other
property of Borrower, real or personal, is damaged or destroyed and the damage
or destruction is not covered by collectible insurance.
J. Borrower suffers or permits any lien, encumbrance, or
security interest to arise or attach to any of Borrower's property, which is not
satisfied within 30 days.
K. Any judgment is entered against Borrower that is not
satisfied or appealed within 30 days.
L. Falsity in any material respect of, or any material
omission in, any representation or statement made to Lender by or on behalf of
Borrower or any person obligated under the Note or any guaranty thereof, in
connection with the Loan.
9. REMEDIES UPON DEFAULT. Upon the occurrence, or the discovery by
Lender of the occurrence, of any of the foregoing events, circumstances, or
conditions of default, Lender shall have, in addition to its option to
accelerate to maturity the full unpaid balance of the Loan, all of the rights
and remedies under applicable law, and in addition shall have the following
specific rights and remedies:
A. To exercise Lender's right of set-off against any account,
fund, or property of any kind, tangible or intangible, belonging to Borrower
which shall be in Lender's possession or under its control.
B. To cure such defaults, with the result that all costs and
expenses incurred or paid by Lender in effecting such cure shall be additional
charges on the Loan, shall bear interest at the highest rate permitted by law,
and shall be payable upon demand, and shall be secured by the Security Agreement
and other Loan Documents.
10. ATTORNEYS' FEES AND COSTS. Borrower promises and agrees to pay all
costs of collection and attorneys' fees, including fees for appellate
proceedings, bankruptcy proceedings or otherwise, incurred or paid by Lender in
enforcing this Agreement or preserving any right or interest of Lender
hereunder.
11. WAIVER. No failure or delay on the part of Lender in exercising any
power or right hereunder, and no failure of Lender to give Borrower notice of a
default hereunder, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power preclude any other or further
exercise thereof or the exercise of any other right or power hereunder. No
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modification or waiver of any provision of this Agreement or any instrument
executed pursuant hereto or consent to any departure by Borrower from this
Agreement or such instrument shall in any event be effective unless the same
shall be in writing, and such waiver or consent shall be effective only in the
specific instance and for the particular purpose for which given.
12. BENEFIT. This Agreement shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and assigns.
Lender may assign this Agreement in whole or in part. Borrower may not assign
this Agreement or its obligations hereunder without Lender's written consent.
13. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida, and any litigation arising out
of or relating to this Agreement or the Loan shall be commenced and conducted in
the courts of the State of Florida or in the federal courts of the State of
Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Loan
Agreement on the day and year first above written.
SUN HYDRAULICS CORPORATION,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
As its Chief Financial Officer
BORROWER
NORTHERN TRUST BANK OF FLORIDA, N.A.
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. XxXxxxxx
As its Vice President
LENDER
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SUN HYDRAULIK HOLDINGS LIMITED,
a corporation organized under the laws of the
United Kingdom
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx
As its Deputy Chairman
SUN HYDRAULIKS LIMITED,
a corporation organized under the laws of the
United Kingdom
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx
As its Director
SUN HYDRAULIK GmbH,
a corporation organized under the laws of Germany
By: /s/ XXXXX XXXXX
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Xxxxx Xxxxx
As its Geschaftsfuhrer
GUARANTORS
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