EXHIBIT 4.14
Prepared by and return to:
Michele B. Grimes, Esq./rlt
Williams, Parker, Harrison, Dietz & Getzen
200 South Orange Avenue
Sarasota, Florida 34236
(941) 366-4800
MORTGAGE
THIS INDENTURE made on June 14, 1996, by and between SUN HYDRAULICS
CORPORATION, a Florida corporation ("Sun Hydraulics"), and SUNINCO, INC., a
Florida corporation ("Suninco") [Sun Hydraulics and Suninco are sometimes
collectively referred to herein as "Mortgagor"], whose post office address is
1500 University Parkway, Sarasota, FL 34243, and NORTHERN TRUST BANK OF
FLORIDA, N.A. ("Mortgagee"), whose post office address is 1515 Ringling
Boulevard, Sarasota, FL 34236;
W I T N E S S E T H:
Mortgagor has received a loan in the principal amount of Six Million
One Hundred Eighty Seven Thousand and 00/100 Dollars ($6,187,000.00), as
evidenced by a promissory note of even date herewith (the "Note") executed
under seal by Mortgagor, as maker, payable to the order of Mortgagee. The
maturity date of the Note is July 1, 2006.
NOW, THIS INDENTURE WITNESSETH: That Mortgagor, for the better
securing of the several sums of money mentioned in the Note, has granted,
bargained, sold, alienated, remised, released, conveyed, and confirmed unto
Mortgagee, its successors and assigns forever, that certain property in Manatee
County, State of Florida, described as follows ("Real Property"):
Property described on Exhibit "A" attached hereto.
together with all and singular the tenements, hereditaments, appurtenances,
riparian and littoral rights, privileges, rights, interests, dower, reversions,
remainders and easements thereunto appertaining, all of which, together with
all of the following, will hereinafter be referred to as the "Mortgaged
Property", whether now owned or hereafter acquired or existing:
(a) all structures and improvements now or hereafter on
the Real Property;
(b) all right, title, and interest of Mortgagor to the
minerals, soil, flowers, shrubs, crops, trees, timber, emblements and other
products now or hereafter on, under or above the Real Property, or any part or
parcel thereof;
(c) all royalties, rent, damages, and revenues of every
kind, nature, and description whatsoever that Mortgagor may be entitled to
receive from any person or entity owning or having or
hereafter acquiring a right to the oil, gas, or mineral rights and reservations
with respect to all or any part of the Real Property;
(d) all of Mortgagor's right, title, interest, and
privileges arising under all contracts, agreements, licenses, approvals, and
permits entered into or obtained in connection with the development or
operation of the Real Property, including by way of example and not in
limitation: all development and construction permits, approvals, resolutions,
variances, licenses, allocations, impact fee credits, and franchises granted by
municipal, county, state, and federal governmental authorities, or any of their
respective agencies; all architectural, engineering, and construction
contracts; all drawings, plans, specifications and plats; and all contracts and
agreements for the furnishing of utilities; and all business licenses, liquor
licenses, operating licenses, and similar licenses, permits, authorizations,
and certificates;
(e) all of Mortgagor's interest in all utility security
deposits or bonds now or hereafter deposited in connection with the Real
Property;
(f) all of Mortgagor's interest as lessor in and to all
leases or rental arrangements now or hereafter affecting all or any part of the
Mortgaged Property, all other rents and profits derived from the Mortgaged
Property, and all income or proceeds from the development of or economic
activity upon any part of the Mortgaged Property, together with any and all
guaranties of such leases or rental arrangements, including all present and
future security deposits and advance rentals, and any and all assignments of
rent with respect to the Mortgaged Property or any part thereof;
(g) all of Mortgagor's interest in and to any and all
contracts and agreements for the sale of the Mortgaged Property, or any part
thereof or any interest therein, whether now existing or arising hereafter,
including but not limited to all of Mortgagor's interest in and right to
earnest money deposits made upon such contracts and agreements;
(h) all land improvements to and upon the Real Property,
including water, sanitary, and storm sewer systems, and all related equipment
and appurtenances thereto, whether now existing or hereafter located in, upon,
over or under the Real Property, including but not limited to all water mains,
service laterals, hydrants, valves and appurtenances, and all sanitary sewer
lines, including mains, laterals, manholes and appurtenances;
(i) all machinery, apparatus, equipment, fittings, and
fixtures, whether actually or constructively attached to the Real Property, and
all trade, domestic, and ornamental fixtures and articles of personal property
of every kind and nature whatsoever now or hereafter located in, upon, over or
under the Real Property,
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or any part thereof, and used or usable in connection with any present or
future operation or development of the Real Property, and now owned or
hereafter acquired by Mortgagor, including by way of example and not in
limitation: heating, air conditioning, freezing, lighting, laundry,
incinerating, and power equipment; engines, pipes, wells, water filtering
systems and softening devices, water heaters, pumps, tanks, and motors;
conduits; switchboards; fire prevention, fire extinguishing, refrigerating,
ventilating and communications systems and apparatus; security and fire alarm
systems and apparatus; boilers, furnaces, oil burners or units thereof; vacuum
cleaning systems; all swimming pools and appurtenances thereto; all electrical
and plumbing systems, fixtures, equipment and installations; all furniture,
furnishings, draperies, wall beds, attached cabinets, partitions, ducts and
compressors, wall and floor coverings, blinds, elevators, escalators, and
appliances, including but not limited to stoves, refrigerators, freezers,
ovens, dishwashers, washers and dryers, trash compactors, and ice machines;
television antennas and cables, storm and screen windows and doors, fans,
awnings, and lighting fixtures; all building materials and equipment now or
hereafter delivered to the Real Property or stored at an off-site location
which are intended to be installed on the Real Property;
(j) all right, title and interest of Mortgagor in and to
all unearned premiums accrued, accruing, or to accrue under any and all
insurance policies now or hereafter existing which covers all or any portion of
the Mortgaged Property; all proceeds or sums payable for the loss of or damage
to all or any portion of the Mortgaged Property; all payments received under
warranties applicable to all or any portion of the Mortgaged Property; and any
other amounts received in satisfaction of claims for defects in such property.
(k) all trade names, trademarks, patents, copyrights, and
fictitious names and all pending applications for trade names, trademarks,
patents, copyrights, or fictitious names used by Mortgagor in connection with
the Mortgaged Property or any business operation or endeavor located on the
Real Property;
(l) all awards or payments, including interest thereon,
and the right to receive the same, as a result of (a) the exercise of the right
of eminent domain, (b) the alteration of the grade of any street, or (c) any
other injury to, taking of, or decrease in the value of the Mortgaged Property;
(m) all substitutions for, accessions to, changes of,
additions to, and replacements of all or any part of the Mortgaged Property;
and
(n) all proceeds of any of the Mortgaged Property, which
proceeds shall include whatever is receivable or received when all or any part
of the Mortgaged Property is sold, collected,
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exchanged, or otherwise disposed of, whether such disposition is voluntary or
involuntary, and includes, without limitation, all goods, accounts, chattel
paper, general intangibles, documents of title, inventory, equipment, and all
rights to insurance payments, including return premiums, with respect to the
Mortgaged Property.
AND MORTGAGOR (and if more than one, each of them jointly and
severally) does hereby covenant and agree with Mortgagee as follows:
1. WARRANTIES. Sun Hydraulics is the owner in fee simple of
Parcel 1 described on Exhibit "A" attached hereto ("Parcel 1") and that portion
of the Mortgaged Property located on or relating to Parcel 1, and Suninco is
the owner in fee simple of Parcel 2 described on Exhibit "A" attached hereto
("Parcel 2") and that portion of the Mortgaged Property located on or relating
to Parcel 2. Sun Hydraulics and Suninco each have full power and right to
mortgage their respective properties. The Mortgaged Property is free from all
liens and encumbrances, except those set forth on Exhibit "B" attached hereto.
Mortgagor does hereby fully warrant the title to the Mortgaged Property, and
will defend it against the lawful claims of all persons whomsoever.
2. FURTHER ASSURANCES. Mortgagor agrees to execute and deliver to
Mortgagee and to any subsequent holder from time to time, upon demand, any
further instrument or instruments, including but not limited to mortgages,
security agreements, financing statements, assignments, and renewal and
substitution notes so as to reaffirm, to correct and to perfect the evidence of
the obligation hereby secured and the security interest of Mortgagee in and to
all or any part of the Mortgaged Property whether now owned or hereafter
acquired, and whether now mortgaged, later substituted for, or acquired
subsequent to the date of this Mortgage and extensions or modifications
thereof.
3. SECURED INDEBTEDNESS. This Mortgage is given as security for
the Note and also as security for any and all other sums, indebtedness,
obligations and liabilities of any and every kind now or hereafter during the
term hereof owing and to become due from Mortgagor to Mortgagee incurred,
evidenced, acquired or arising under the Note, this Mortgage or any other loan
document executed in connection herewith, all of which are collectively
referred to herein as the "Secured Indebtedness."
4. PAYMENT. Mortgagor will pay the sums of money agreed to be
paid under this Mortgage and the Note, including any extensions or renewals
thereof, according to the true effect and meaning thereof and in conformity
with all of the terms, provisions and conditions as agreed therein.
5. TAXES AND ASSESSMENTS. Mortgagor will pay all taxes,
assessments, levies, liabilities, liens, obligations and
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encumbrances of every kind and nature on the Mortgaged Property before
delinquency. Mortgagor will pay all taxes, fees, assessments, and other similar
charges (except income taxes) imposed by any federal, state or local government
or agency thereof on or with respect to the Note, this Mortgage, or the
indebtedness secured hereby. Any penalties or interest required to be paid with
respect to any of the aforesaid charges shall be paid by Mortgagor. If
Mortgagor fails to pay these amounts before delinquency, Mortgagee may pay the
same and charge Mortgagor as provided in the Performance by Mortgagee paragraph
contained herein.
6. CASUALTY INSURANCE. Mortgagor will insure all improvements on
the Mortgaged Property by carrying fire and extended coverage insurance
policies containing the standard mortgagee clause (also known as the standard
or union mortgage clause) making all loss payable to Mortgagee as its interest
may appear and providing that the insurance, as to the interest of Mortgagee
therein, shall not be invalidated by any act or neglect of Mortgagor. Mortgagor
will purchase such insurance policies from a good and responsible insurance
company acceptable to Mortgagee for the full insurable value of the Mortgaged
Property, and will deliver all such policies and renewals thereof to Mortgagee.
In the event any sum of money becomes payable under the policies described in
this paragraph, or any sum of money becomes payable by third persons or their
insurance companies because of loss or damage to the Mortgaged Property, such
sum shall be applied either in the reduction of the Secured Indebtedness,
applying the same to the payments last due under the Note, or in restoration of
the Mortgaged Property, as Mortgagee may elect. If Mortgagor shall fail to
insure the Mortgaged Property as required under the terms of this paragraph,
Mortgagee may do so and charge Mortgagor as provided in the Performance by
Mortgagee paragraph contained herein.
7. FLOOD INSURANCE. If the Mortgaged Property is located
wholly or in part within a special flood hazard area, as now or hereafter
defined by the Department of Housing and Urban Development on the Flood
Insurance Rate Map for the county in which the Mortgaged Property is located,
then flood insurance for the improvements must be maintained at all times
during the term of this Mortgage. The flood insurance policy shall name
Mortgagee as a loss payee, as its interest may appear, and shall be in the
amount of the full insurable value of the Mortgaged Property, or, if
specifically permitted by Mortgagee, in such lesser amount as is equal to the
maximum limit of coverage made available with respect to the Mortgaged Property
under the National Flood Insurance Program. Mortgagor shall deliver such policy
and renewals thereof to the Mortgagee. In the event any sum of money becomes
payable under the policy described in this paragraph because of loss or damage
to the Mortgaged Property, such sum shall be applied either in the reduction of
the Secured Indebtedness, applying the same to the payments last due under the
Note, or in restoration of the
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Mortgaged Property, as Mortgagee may elect. If Mortgagor shall fail to insure
the Mortgaged Property as required under the terms of this paragraph, Mortgagee
may do so and charge Mortgagor as provided in the Performance by Mortgagee
paragraph herein. Mortgagor warrants and covenants to Mortgagee that the
improvements located on the Mortgaged Property have been built in compliance
with all Federal, State, and local laws, ordinances, rules and regulations
relating to properties located within special flood hazard areas, and Mortgagor
shall not construct or cause to be constructed any improvements on the
Mortgaged Property which do not comply with such laws, ordinances, rules and
regulations.
8. LIABILITY INSURANCE. Mortgagor shall at all times maintain
public liability insurance insuring against all claims for personal or bodily
injury, death or property damage occurring upon, in or about the Mortgaged
Property in amounts not less than Three Million and 00/100 Dollars
($3,000,000.00) single limit coverage for each of the Parcels. Such insurance
coverage shall be in form and with companies approved by Mortgagee. Mortgagor
shall furnish to Mortgagee evidence that such insurance is in effect, upon
request, at no cost to Mortgagee.
9. DEFAULT. Mortgagor shall be in default under this Mortgage
upon the happening of any of the following events or conditions: (a) failure or
omission to pay when due the Note (or any installment of principal or interest
thereunder) 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 this
Mortgage, the 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 the Note or any other loan document executed in connection
herewith; (c) any warranty, representation or statement made or furnished to
Mortgagee for the purpose of inducing Mortgagee to accept this Mortgage, or to
make any extension of the Secured Indebtedness, proves to have been 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
Mortgagee or by a third party); (e) the institution of foreclosure proceedings
of another mortgage or lien of any kind on the Mortgaged Property (whether such
other mortgage or lien be held by Mortgagee or by a third party); (f) the
default by Mortgagor or any party obligated under the Note or any guaranty
thereof 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
Mortgagee, specifically including but not limited to that certain mortgage loan
outstanding from Mortgagee to Suninco 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 Mortgagee to Sun
Hydraulics in the amount of
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$1,700,000.00 ("Line of Credit"), and that certain loan outstanding from
Mortgagee to Sun Hydraulics evidenced by promissory note dated May 20, 1996, in
the original principal amount of $3,063,157.00 ("Equipment Loan"); (g) the
death, dissolution, termination of existence, insolvency, or business failure
of Mortgagor or any party obligated under the Note or any guaranty thereof; (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 Mortgagor or by or against any person
obligated under the Note or any guaranty thereof; (j) falsity in any material
respect of, or any material omission in, any representation or statement made
to Mortgagee by or on behalf of Mortgagor or any person obligated under the
Note or any guaranty thereof, in connection with this Mortgage; (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 the Note,
Mortgagee may, at its option, declare the whole amount of principal and
interest provided for in and by the 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
Mortgagor. Any default hereunder shall constitute a default under any other
mortgage, note, obligation or agreement of Mortgagor, or any Affiliated
Company, or any party obligated under the Note or any guaranty thereof, held by
Mortgagee, specifically including but not limited to the Existing Plant Loan,
the Line of Credit, and the Equipment Loan. The agreements contained in this
paragraph to create cross-defaults under all mortgages, notes, obligations and
agreements between Mortgagor (or any party obligated under the Note or any
guaranty thereof) and Mortgagee, whether currently existing or hereafter
created, in the event of default under one or more of such mortgages, notes,
obligations or agreements is a material and specific inducement and
consideration for the making by Mortgagee of the Loan evidenced by the Note.
Notwithstanding the provisions of the foregoing 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, then prior to Mortgagee precipitating to maturity the full
unpaid balance of the Note or otherwise exercising any rights available to
Mortgagee under the terms of the Note or any other loan document executed in
connection therewith, Mortgagee shall give written notice to Mortgagor and
Mortgagor 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 Mortgagee's security for the Note, then the 30 day
period
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shall be extended for such period as may be reasonably necessary to complete
the curing of same, provided that Mortgagor proceeds with all due diligence and
continuity to cure the default. Notice required hereunder may, at the option of
Mortgagee, 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 Mortgagor, whichever is first. In the event
the default is not cured within the time provided, then Mortgagee shall have
the right to accelerate the Note and proceed to enforce the Note and the loan
documents, without further notice to Mortgagor.
10. COSTS, EXPENSES, AND ATTORNEYS' FEES. In the event of a
default under the terms of this Mortgage, the Note, or any other loan documents
executed in connection herewith, or any renewals or extensions thereof,
Mortgagor shall pay all costs, expenses and attorneys' fees incurred by
Mortgagee in the collection (whether by suit or otherwise) hereof, including
those costs, expenses and reasonable attorneys' fees incurred in appellate
proceedings. Furthermore, Mortgagor shall pay immediately all costs, expenses
and reasonable attorneys' fees incurred (whether in legal proceedings or
otherwise) by Mortgagee (including those costs, expenses and reasonable
attorneys' fees incurred in appellate proceedings) by reason of the assertion
or institution by any person, other than Mortgagee, of any claim, demand,
action or proceeding concerning or affecting the Mortgaged Property or the lien
created hereby, or concerning or affecting the Note, this Mortgage, or any loan
document executed in connection herewith. If Mortgagor shall fail to pay the
sums required by this paragraph to be paid, Mortgagee may pay the same and
charge Mortgagor as provided in the Performance by Mortgagee paragraph
contained herein.
11. MAINTENANCE AND WASTE. Mortgagor shall keep the Mortgaged
Property in good order and repair; commit, permit and suffer neither strip nor
waste of said property; and comply with all laws, ordinances, regulations and
requirements of all governmental bodies applicable to the Mortgaged Property or
use thereof. Upon failure of Mortgagor to keep and perform each of the
aforesaid covenants, Mortgagee may, at its option, cause or procure the
performance thereof including repair and restoration of the Mortgaged Property,
and charge Mortgagor with the costs and expenses incurred thereby, as provided
in the Performance by Mortgagee paragraph contained herein. Mortgagee may make
or cause to be made reasonable entries upon the Mortgaged Property for
inspection thereof. Mortgagor shall not construct or cause to be constructed on
the Real Property any improvements which extend over the boundary lines of the
Real Property or otherwise fail to satisfy applicable setback requirements.
Furthermore, Mortgagor shall not construct improvements on the Real Property
pursuant to a site plan, development order or other construction plan, which
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incorporates property other than the Real Property, without Mortgagee's prior
written consent, which consent may be withheld in Mortgagee's absolute and sole
discretion.
12. HAZARDOUS SUBSTANCES. Mortgagor has executed in favor of
Mortgagee on even date herewith a Certificate and Indemnity Regarding Hazardous
Substances ("Indemnity"). All of the terms, covenants and conditions of the
Indemnity are incorporated herein by this reference. Any default by Mortgagor
under the Indemnity shall constitute a default under the Note, this Mortgage
and other Loan documents executed in connection herewith. If Mortgagor shall
fail to pay the sums or undertake the actions required by the Indemnity,
Mortgagee may, but shall not be required to, pay or perform the same and charge
Mortgagor as provided in the Performance by Mortgagee paragraph contained
herein. The terms and liabilities of and under the Indemnity shall survive any
foreclosure of this Mortgage, or deed in lieu thereof.
13. CONDEMNATION. In the event the Mortgaged Property or any part
thereof be taken under the power of eminent domain, Mortgagee shall have the
right, whether the value of Mortgagee's security be impaired by the taking or
not, to demand and receive all sums awarded for the taking of or damages to the
Mortgaged Property (including but not limited to severance and business
damages) up to the amount then unpaid on the obligations secured hereby and to
apply the same upon the payments last due thereon. Failure by Mortgagor to
cause delivery to Mortgagee of such sums shall constitute a default hereunder.
14. RECEIVERSHIP. In the event any suit is instituted upon the
Mortgage, or to foreclose or reform it, or to enforce payment of any claims
hereunder, Mortgagee shall have the right to the appointment of a receiver,
without notice, of the Mortgaged Property, including the rents, income,
profits, issues and revenues thereof. Such receiver shall have all the powers
which can be in any way entrusted by a court to a receiver. Such appointment
shall be made by the court as an admitted equity and absolute right to
Mortgagee, and without reference to the adequacy or inadequacy of the value of
the Mortgaged Property or to the solvency or insolvency of Mortgagor or of the
other defendants, and said rents, profits, income, issues and revenues shall be
applied to the Secured Indebtedness.
15. ABSOLUTE ASSIGNMENT OF RENTS. In further consideration for the
indebtedness evidenced by the Note, Mortgagor hereby absolutely and
unconditionally assigns to Mortgagee all rents, revenues, profits and incomes
from the Mortgaged Property or any portion thereof. Provided, however, so long
as no default has occurred, Mortgagor is hereby granted a license to collect
and retain the currently accruing rents, income and profits from the Mortgaged
Property, but in no event for more than one (1) month in advance of such
collection. If a default shall occur, however,
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thereupon, and at any time thereafter such default is continuing, Mortgagee may
terminate such license and may, without any liability to Mortgagor, take
possession and control of the Mortgaged Property and/or receive and collect all
rents, revenues, profits and income, accrued or accruing thereafter so long as
any of the Secured Indebtedness remains unpaid, applying so much thereof as may
be collected first to the expenses incident to taking possession and/or the
collection thereof, and second to the payment of the Secured Indebtedness other
than the Note, and third to the amount of the Note then remaining unpaid,
whether then matured or not, and fourth paying the balance, if any, to the
Mortgagor. It is intended by Mortgagor and Mortgagee that this assignment of
rents constitutes an absolute assignment and not an assignment for additional
security only, and that Mortgagee shall be entitled to exercise its rights
hereunder whether or not Mortgagee is in possession of the Mortgaged Property
at such time. Mortgagor agrees to fulfill or perform each and every covenant of
any and all leases of the Mortgaged Property so as to keep them at all times in
full force and effect, and not to make any modification, consent to any
modification of, or cancel any lease of all or any part of the Mortgaged
Property after the lease has been executed by Mortgagor and lessee, without the
prior written consent of Mortgagee; the failure to fulfill or perform any such
covenant or the making of or consent to any such modification or cancellation
shall be a default under this Mortgage, the Note, and all other documents
executed in connection herewith.
16. INSURANCE POLICIES AND UTILITY DEPOSITS. In the event of
foreclosure of this Mortgage or a transfer of title to the Mortgaged Property
in lieu of foreclosure, all right, title and interest of Mortgagor in and to
any insurance policies then in force, and all deposits and all advance payment
for utility service of any kind or nature, heretofore or hereafter deposited by
Mortgagor for such utility service in connection with the operation of the
Mortgaged Property, will pass to the purchaser or grantee.
17. MODIFICATIONS AND RENEWALS. The rate of interest and time of
payment of the Note may from time to time be modified as to terms or extended
for any period (whether or not longer than the original period of said Note) by
mutual agreement of the holder hereof with the then owner of the Mortgaged
Property, and all parties having liability, either primary or secondary, under
the Note hereby waive notice thereof and covenant and agree that no such
modifications or extensions shall operate to release the personal obligation of
any of them as mortgagors, makers, guarantors, sureties or endorsers. Mortgagor
(and each of them, if more than one) further agrees that no waiver by Mortgagee
or the holder hereof of any default shall operate as a waiver of any other
default or of the same default on a future occasion; that the exchange,
release, surrender or sale of all or any real property or collateral which may
be given or may have been given to secure the repayment of the Note and other
obligations secured hereby shall
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not release or discharge any Mortgagor or other party liable hereunder, and
agrees that the release of any Mortgagor or other party liable upon or in
respect of this Mortgage or the Note or other obligations secured hereby shall
not release any other such party or Mortgagor.
18. PERFORMANCE BY MORTGAGEE. If Mortgagor defaults in any of the
covenants or agreements contained in this Mortgage, in the Note, or in any
other loan document executed in connection herewith, Mortgagee may perform the
same or procure their performance without waiving or affecting the option to
foreclose or any right hereunder, and all costs, payments and expenditures
(including reasonable attorneys' fees as herein provided) made by Mortgagee in
so doing shall be charged to Mortgagor, shall become immediately due and
payable and shall bear interest at the maximum rate permitted by law or
twenty-five percent (25%) per annum, whichever is less. If said sums are not
immediately paid, they shall be added to and become part of the Secured
Indebtedness.
19. FUTURE ADVANCES. This Mortgage secures and shall be security
for any and all future advances made by Mortgagee to Mortgagor (or any of them,
if more than one), provided, however, that said future advances be made within
twenty (20) years from the date hereof, and that the total unpaid balance
secured hereby at any one time shall not exceed the amount of the Note plus
$1,000,000.00, together with interest thereon at the rate then agreed upon,
pursuant to Florida Statutes, Section 697.04. Nothing contained herein shall be
deemed an obligation on the part of Mortgagee to make any further advances.
20. SUBROGATION. To the extent of the Secured Indebtedness,
Mortgagee is subrogated to the lien or liens and to the rights of the owners
and holders thereof of each mortgage, lien or other encumbrance on the
Mortgaged Property which is paid or satisfied, or both, in whole or in part,
out of the proceeds of the loan secured hereby, and the respective liens of
said mortgages, liens or other encumbrances shall be preserved and shall pass
to and be held by Mortgagee as security for the indebtedness hereby secured to
the same extent that it would have been preserved and would have been passed to
and been held by Mortgagee had it been duly and regularly assigned to Mortgagee
by separate assignment notwithstanding the fact that the same may be satisfied
and canceled of record.
21. SECURITY AGREEMENT. This instrument also serves as a Security
Agreement and creates a security interest in favor of Mortgagee under the
Florida Uniform Commercial Code (the "UCC") with respect to all of the
Mortgaged Property to which the UCC is applicable. Mortgagee shall have all
rights, privileges and remedies, including notice, of a secured party under the
UCC, without limitation upon or in derogation of the rights and remedies
created under and accorded Mortgagee by this Mortgage, it being
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understood that the rights and remedies of Mortgagee under the UCC shall be
cumulative and in addition to all other rights and remedies of Mortgagee
arising under the common law or any other laws of the State of Florida or of
any other jurisdiction. On demand Mortgagor shall promptly execute, and pay all
costs and expenses of filing, financing statements, continuation statements,
modification statements, and termination statements deemed necessary or
appropriate by Mortgagee to establish and maintain the validity and priority of
the security interest of Mortgagee. If notice is required under this Mortgage
and the UCC, then such requirement of notice shall be reasonably met if such
notice is mailed postage prepaid to Mortgagor at the address for Mortgagor
shown on the records of Mortgagee at least five days in advance of the sale, or
disposition, or other event for which notice is required.
22. APPRAISALS. Upon the request of Mortgagee during the term of
this Mortgage, updated appraisals of the Mortgaged Property shall be prepared
at Mortgagor's expense. Such appraisals shall be prepared in accordance with
written instructions from Mortgagee, shall be certified to Mortgagee, and shall
be prepared by a professional appraiser satisfactory to Mortgagee, who is
certified and appropriately licensed by the State of Florida.
23. DUE ON SALE. The entire Secured Indebtedness may, at
Mortgagee'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 Mortgagor,
whether held or owned directly or indirectly (if Mortgagor, or any of them, is
not a natural person or persons, but is a corporation, partnership, trust,
estate or other legal entity), except as may be permitted under the terms of
the Loan Agreement referenced in paragraph 25 below.
24. OTHER LIENS AND MORTGAGES. Mortgagor shall not cause or permit
to attach to the Mortgaged Property, any liens or mortgages other than this
Mortgage, except for that certain first mortgage held by Mortgagee which
encumbers Parcel 2 ("First Mortgage").
25. LOAN AGREEMENT. In connection with the making of the loan
evidenced by the Note, Mortgagor and Mortgagee have entered into a Loan
Agreement of even date herewith, the terms and conditions of which are hereby
incorporated as a part of this Mortgage by this reference. Any default under
the Loan Agreement shall constitute a default hereunder.
26. MERGER. Sun Hydraulics and Suninco have disclosed to Mortgagee
that Sun Hydraulics and Suninco are contemplating a corporate merger, it being
the current intent that Suninco will be merged into Sun Hydraulics, with Sun
Hydraulics being the surviving corporation. It is currently anticipated that
the merger will take place effective as of June 30, 1996. It is agreed that,
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notwithstanding anything contained herein to the contrary, such merger shall
not constitute a default hereunder. It is further agreed that upon such merger
becoming effective, Sun Hydraulics shall automatically become fully liable,
both prospectively and retroactively, for all duties, obligations, liabilities,
warranties, covenants and agreements of Suninco herein created or set forth,
without the necessity for the execution of additional documentation.
Nonetheless, Sun Hydraulics agrees, upon the request of Mortgagee, to execute
such documentation as Mortgagee may require in order to ratify and confirm the
assumption of said liability.
27. MISCELLANEOUS. Time is of the essence hereof. Mortgagor waives
all rights of homestead and other exemptions granted by the constitution and
laws of Florida. The terms "Mortgagor" and "Mortgagee" as used herein shall
include their respective heirs, devisees, personal representatives, grantees,
successors and assigns. The term "Mortgagor" shall include each person signing
this Mortgage, jointly and severally, individually and collectively. Whenever
used herein, the singular number shall include the plural, the plural the
singular, and the use of any gender shall include all genders. The terms
"person" and "party" shall include individuals, firms, associations, joint
adventures, partnerships, estates, trusts, business trusts, syndicates,
fiduciaries, corporations and all other groups or combinations. Titles of
paragraphs contained herein are inserted only as a matter of convenience and
for reference, and in no way define, limit, extend, or describe the scope of
this Mortgage or the intent of any provisions hereunder. This Mortgage, the
Note, and all loan documents executed in connection herewith shall be construed
under Florida law.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto Mortgagee, its successors and assigns forever; provided, however, that if
Mortgagor shall pay the Secured Indebtedness and shall well and truly keep,
observe and perform all the other covenants and stipulations of this Mortgage,
the Note and the other loan documents executed in connection herewith, then
this conveyance of mortgage shall become null and void, but otherwise shall
remain in full force and effect.
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be signed the date
above written.
SUN HYDRAULICS CORPORATION,
a Florida corporation
By: /s/ Clyde G. Nixon
------------------------
Clyde G. Nixon
As its President
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SUNINCO, INC., a Florida corporation
By: /s/ Clyde G. Nixon
----------------------------------
Clyde G. Nixon
As its President
MORTGAGOR
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STATE OF FLORIDA
COUNTY OF SARASOTA
The foregoing instrument was acknowledged before me this 14th day of June 1996
by Clyde G. Nixon, as President of Sun Hydraulics Corporation, a Florida
corporation, on behalf of the corporation. The above-named person is personally
known to me or has produced __________________________ as identification. If no
type of identification is indicated, the above-named person is personally known
to me.
/s/ Philomene Staffeld
-------------------------------------
Signature of Notary Public
(Notary Seal)
Philomene Staffeld
-------------------------------------
Print Name of Notary Public
I am a Notary Public of the State of
Florida, and my commission expires
on February 28, 1998
---------------------------------.
STATE OF FLORIDA
COUNTY OF SARASOTA
The foregoing instrument was acknowledged before me this 14th day of June 1996
by Clyde G. Nixon, as President of Suninco, Inc., a Florida corporation, on
behalf of the corporation. The above-named person is personally known to me or
has produced __________________________ as identification. If no type of
identification is indicated, the above-named person is personally known to me.
/s/ Philomene Staffeld
--------------------------------------
Signature of Notary Public
(Notary Seal)
Philomene Staffeld
--------------------------------------
Print Name of Notary Public
I am a Notary Public of the State of
Florida, and my commission expires
on February 28, 1998
----------------------------------.
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