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EXHIBIT 4.12
CONSOLIDATED NOTE
$3,063,157.00 May 20, 1996
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, Xxxxxxx 00000, or at such other place as the holder hereof may from
time to time designate in writing, the principal sum of Three Million Sixty
Three Thousand One Hundred Fifty Seven and 00/100 Dollars ($3,063,157.00), 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.
Interest on the unpaid principal sum outstanding from time to time
shall accrue at a fixed rate of eight and one-quarter percent (8.25%) per
annum.
Interest accruing from the date hereof to and including May 31, 1996,
shall be paid on even date herewith. Thereafter, principal and interest shall
be due and payable in equal monthly installments of $48,136.47, the first such
installment to be due and payable July 1, 1996, with subsequent installments to
be due and payable on the same day of every month thereafter until May 1, 2003,
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 Mortgage (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 Mortgage,
or any other loan documents; and the balance, if any, to principal.
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.
This Note is secured by a security agreement (the "Security
Agreement") of even date herewith, made by Maker in favor of Lender encumbering
personal property described therein (the "Collateral") located in Manatee
County, Florida.
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
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(ii) any beneficial or ownership interest in Maker, whether held or owned
directly or indirectly (if Maker, or any of them, is not a natural person or
persons, but is a corporation, partnership, trust, estate or other legal
entity).
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
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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 when due
this Note (or any installment of principal or interest hereunder) within
fifteen (15) days after payment is due; (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 or any party obligated under this Note or any
guaranty hereof or any affiliate of any of the foregoing, specifically
including but not limited to Suninco, Inc. and Sun Hydraulics Real Estate,
Ltd. ("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, specifically including but not limited
to that certain mortgage loan outstanding from Lender to Suninco, Inc.
evidenced by promissory note dated April 10, 1996, in the original principal
amount of $2,475,000.00 ("Existing Plant Loan"), that certain revolving line of
credit outstanding from Lender to Maker in the amount of $1,700,000.00 ("Line
of Credit"), and that certain loan committed to be made by Lender to Sun
Hydraulics Real Estate, Ltd. in the original principal amount of $6,187,000.00
("New Plant Loan") (collectively, the "Cross-Defaulted Credits"); (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)
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; (k) loss, theft, substantial
damage, or destruction, not covered by collectible insurance, of any of the
Collateral or any levy, seizure or attachment thereof; (l) the sale or transfer
of any of the Collateral, except inventory sold in the
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ordinary course of business, with the exception that the sale of Collateral
over the term of this Note which has a total fair market value not exceeding
$50,000.00 will not constitute an Event of Default; or (m) the pledge,
assignment, or granting of a security interest in any of the Collateral. 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 of the
Affiliated Companies, held by Xxxxxx, specifically including but not limited to
the Cross-Defaulted Credits. The agreements contained in this paragraph to
create cross-defaults under all mortgages, notes, obligations and agreements
between Maker, or any of the Affiliated Companies, 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.
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
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change of circumstance which adversely affects any matters originally
considered by Xxxxxx 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 Xxxxxx 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. In the
event the default rate of interest set forth in the foregoing sentence 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.
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 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.
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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 venturers, 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 is a consolidated note which consolidates two promissory notes
executed by Maker in favor of Xxxxxx: (i) note dated February 27, 1995, in the
original principal amount of $775,000.00 which has a current principal balance
of $762,169.23, and (ii) note dated on even date herewith in the original
principal amount of $2,300,987.77. The principal balance hereof is equal to the
total of the principal balances of the two promissory notes which it
consolidates. State of Florida documentary stamps in the amount required by law
were affixed to this Note, and were cancelled pursuant to law. No further State
documentary stamps are required.
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,
a Florida corporation
Sarasota, FL 34243
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
As its President
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