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EXHIBIT 4.23
MODIFICATION AGREEMENT
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THIS AGREEMENT, entered into on March 1st, 1998, between SUN HYDRAULICS
CORPORATION, a Florida corporation ("Mortgagor"), whose post office address is
0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000, and NORTHERN TRUST BANK OF
FLORIDA, N.A. ("Mortgagee"), whose post office address is 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Mortgagee is the owner and holder of a promissory note in the
original principal amount of $6,187,000.00 dated June 14, 1996 ("Note"), and
WHEREAS, the Note is secured by a real estate mortgage recorded in
Official Records Book 1494, Page 6860, Public Records of Manatee County,
Florida, and in Official Records Book 2894, Page 2289, Public Records of
Sarasota County, Florida ("Mortgage"), by an assignment of leases recorded in
Official Records Book 1494, Page 6872, Public Records of Manatee County,
Florida, and in Official Records Book 2894, Page 2301, Public Records of
Sarasota County, Florida ("Assignment of Leases"), and by a UCC-1 Financing
Statement recorded in Official Records Book 1494, Page 6878 Public Records of
Manatee County, Florida, and in Official Records Book 2894, Page 2307,
Public Records of Sarasota County, Florida, and filed with the Florida
Secretary of State, file #96-0000129270 ("UCC-1") and
WHEREAS, Mortgagor is the owner of the property encumbered by the
Mortgage, which is more particularly described in Exhibit "A" attached hereto
("Property"), and the parties desire to modify the Note and Mortgage as
hereinafter provided,
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) and
other valuable considerations, and of the covenants and agreements of Mortgagor
and Mortgagee, it is agreed as follows:
1. The terms of the Note have been modified on even date herewith, as
evidenced by modification note executed by Mortgagor ("Modification Note").
The unpaid principal balance of the Modification Note, together with accrued
interest thereon, will be due and payable July 1, 2006. The Modification Note
replaces the Note and is secured by the Mortgage, Assignment of Leases and
UCC-1. All references to the Note contained in the Mortgage, Assignment of
Leases, or any other loan document shall be deemed to refer to the Modification
Note.
2. This Agreement is intended solely as a modification of the
existing Mortgage, and not as a novation thereof. It is the full purpose and
intent of the parties hereto that the priority of the Mortgage remain effective
as the original recording date and time of the Mortgage.
3. Mortgagor hereby warrants to Mortgagee that there are no recorded
or unrecorded mortgages, liens, or other encumbrances against the Property other
than the Mortgage.
4. Mortgagor agrees to keep and perform fully all of the terms,
covenants and conditions of the Modification Note and Mortgage as modified
hereby. All terms, covenants and conditions of the Mortgage which are not
inconsistent herewith are hereby expressly confirmed, ratified and declared to
be in full force and effect.
5. State of Florida documentary stamps in the amount required by law
were affixed to the Mortgage and were cancelled pursuant to law. The
Modification Note qualifies for the exemption provided for in ss. 201.09,
Florida Statutes, and therefore, no additional documentary stamps are now due or
payable; however, in the event that the Department of Revenue, its agents or
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employees, notifies either Mortgagor or Mortgagee that the transaction which
is the subject of this Modification Agreement is subject to payment of
documentary stamp tax, intangible tax, or any other such tax, then, in such
event, Mortgagor agrees to immediately remit to the Department of Revenue or to
the Mortgagee the full amount of such tax deemed to be due and payable as
requested by the Department of Revenue. Mortgagor may contest any liability
for such tax payment; however, any such contest shall be taken solely at the
election, cost, and expense of Mortgagor. The liability of Mortgagor under
this provision shall survive the satisfaction of the obligations referenced
hereunder. Any failure of Mortgagor to comply with the terms and provisions of
this section shall constitute a default under the Modification Note, Mortgage,
and all other loan documents executed in connection therewith.
6. For and in consideration of Mortgagee's agreement to modify
the terms of Mortgagor's loan as set forth in this Agreement, Mortgagor hereby
waives any and all claims, causes of action, and defenses which it may have
against Mortgagee arising prior to the execution of this Agreement and agrees
to hold Mortgagee, its employees, officers, and agents harmless from all
matters, claims, and liabilities existing or arising prior to the date hereof,
Mortgagor acknowledges, represents, and warrants to Mortgagee that Mortgagor
has no right of offset against the indebtedness evidenced by the Modification
Note nor defenses or claims against Mortgage with respect to the Note,
Mortgage, Modification Note, this Agreement, or any other loan documents
executed in connection with any of the foregoing, or any other transaction or
course of dealing between Mortgagor and Mortgagee arising out of or relating in
any way to same.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date and year first above written.
SUN HYDRAULICS CORPORATION,
a Florida corporation
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
As its President
SUNINCO, INC., a Florida corporation
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
As its President
MORTGAGOR
NORTHERN TRUST BANK OF FLORIDA, N.A.
By: /s/ Xxxxxxx X. XxXxxxxx
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Xxxxxxx X. XxXxxxxx
As its Vice President
MORTGAGEE
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