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EXHIBIT 4.24
MODIFICATION NOTE
$4,965,524.51 March 1, 1998
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 Four Million Nine Hundred
Sixty Five Thousand Five Hundred Twenty Four and 51/100 Dollars
($4,965,524.51), 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 seven and seven-eighths percent (7.875%) per
annum.
Principal and interest on the loan shall be due and payable in equal
monthly installments of $43,072.18, the first such installment to be due and
payable April 1, 1998, with subsequent installments to be due and payable on
the same day of every month thereafter until July 1, 2006, 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.
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.
This Note is secured by a mortgage and security agreement (the
"Mortgage") dated June 14, 1996 made by maker in favor of Lender encumbering
real property and personal property described therein (the "Mortgaged
Property") located in Manatee and Sarasota Counties, Florida.
The entire unpaid principal balance hereof together with all accrued
interest due shall, at Lender's sole option, become immediately due and payable
in the event of the sale or transfer of (i) all or any part of the Mortgaged
Property, or any interest therein, or (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 of 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 Mortgaged
Property, 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.
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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 Xxxxxx, without in any way modifying,
altering, releasing, affecting or limiting their respective liabilities or the
lien of the Mortgage, 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
Mortgage, 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 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 Mortgage, this Note, or any 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 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 false in any material
respect when made or furnished; (d) a default under any other mortgage on the
Mortgaged Property (whether such other mortgage be held by Lender or by a third
party); (e) the institution of foreclsoure proceedings of another mortgage or
lien of any kind on the Mortgage Property (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 ("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; (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 Mortgaged 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) 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 Mortgaged
Property or any levy, seizure or attachment thereof; (l) the sale or transfer
of any of the Mortgaged Property; or (m) the mortgage, pledge, assignment, or
granting of a security interest in any of the Mortgaged Property. 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
Affiliated Company held by Lender. The agreements contained in this paragraph
to create cross-defaults under all mortgages, notes, obligations and agreements
between Maker, and any
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Affiliated Company 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 within said 30 day period, and such
default does not threaten to impair Xxxxxx's security for this Note, then the 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 Borrower, whichever
is first. In the event the default is not cured with 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
Mortgage, or any other loan document is impaired, because of any change of
circumstance which adversely affects any matters orginally 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 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 ("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.
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 upon this Note or the Mortgage, 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 Mortgage, 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
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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.
This is a modification of that certain note dated June 14, 1996 in the
original principal amount of $6,187,000.00. State of Florida documentary
stamps in the amount required by law were paid on the mortgage securing the
note which this Note modifies, 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,
Sarasota, FL 34243 a Florida corporation
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
As its President
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