Exhibit 10.14
LOAN AGREEMENT
By and Among
ORANGE-CO, INC.
and
ORANGE-CO OF FLORIDA, INC.
(the "Borrowers")
and
SUN BANK, NATIONAL ASSOCIATION
(the "Bank")
June 16, 1993
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TABLE OF CONTENTS
(The Table of Contents for this Loan Agreement is for convenience
of reference only and is not intended to define, limit or
describe the scope or intent of any provisions of this Loan
Agreement.)
Article Section Heading Page
ARTICLE ONE DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Definitions 1
Section 1.02 Accounting Terms 11
ARTICLE TWO AMOUNT AND TERMS OF THE LOAN
Section 2.01 Working Capital Loan 11
Section 2.02 Advances; Interest Rate Selection 12
Section 2.03 Interest on the Note 13
Section 2.04 Restriction on Prepayment 14
Section 2.05 Calculation of Interest 14
Section 2.06 Place of Payment 14
Section 2.07 Set-Off 14
Section 2.08 Payment of Note 15
Section 2.09 Application of Payments 15
Section 2.10 Loan Fee 15
ARTICLE THREE REPRESENTATIONS AND WARRANTIES
Section 3.01 Organization; Corporate 15
Powers; Etc.
Section 3.02 Authorization of Loan; Etc. 15
Section 3.03 Conflicting Agreements and 16
Other Matters
Section 3.04 Financial Statements 16
Section 3.05 Changes in Financial Conditions; 17
Adverse Developments
Section 3.06 Tax Returns and Payments 17
Section 3.07 Agreements 17
Section 3.08 Title to Properties and Assets; 18
Liens; Etc.
Section 3.09 Securities Act 18
Section 3.10 Regulation G; Etc.
Section 3.11 Litigation; Etc. 18
Section 3.12 Regulation U 18
Section 3.13 Patents, Trademarks, Franchises, 19
Etc.
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Section 3.14 ERISA 19
Section 3.15 Governmental Consent 20
Section 3.16 Holding Company Status 20
Section 3.17 Investment Company Status 20
Section 3.18 Outstanding Debt 20
Section 3.19 Consents and Approvals 20
Section 3.20 Places of Business 20
Section 3.21 Priority of Security Interest 21
Section 3.22 Subsidiaries 21
ARTICLE FOUR COVENANTS OF THE BORROWER
Section 4.01 Affirmative Covenants 21
Section 4.02 Negative Covenants 27
ARTICLE FIVE CONDITIONS OF LENDING
Section 5.01 Representations and Warranties 28
Section 5.02 No Default 28
Section 5.03 Additional Working Capital Note 28
Section 5.04 Officer's Certificate 29
Section 5.05 Opinion of Borrowers' Counsel 29
Section 5.06 Loan Documents 29
Section 5.07 Supporting Documents 29
Section 5.08 Loan Permitted by Applicable 30
Laws
Section 5.09 Proceedings 30
Section 5.10 Subsequent Opinions 30
ARTICLE SIX EVENTS OF DEFAULT
Section 6.01 Events of Default 31
ARTICLE SEVEN RIGHTS UPON DEFAULT
Section 7.01 Acceleration 32
Section 7.02 Right of Setoff 33
Section 7.03 Other Rights 33
Section 7.04 Uniform Commercial Code 33
ARTICLE EIGHT MISCELLANEOUS
Section 8.01 No Waiver; Cumulative 33
Remedies
Section 8.02 Amendments; Etc. 33
Section 8.03 Addresses for Notices; Etc. 33
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Section 8.04 Applicable Law 34
Section 8.05 Survival of Representations 34
and Warranties
Section 8.06 Time of the Essence 34
Section 8.07 Headings 34
Section 8.08 Severability 34
Section 8.09 Counterparts 35
Section 8.10 Conflict 35
Section 8.11 Term 35
Section 8.12 Expenses 35
Section 8.13 Successors and Assigns 35
Section 8.14 No Third Party Beneficiaries 36
Section 8.15 Waiver of Jury Trial 36
Section 8.16 Entire Agreement 36
SIGNATURES AND SEALS
EXHIBIT "A: - LIST OF PLACES OF BUSINESSES
EXHIBIT "B" - SUBSIDIARIES
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LOAN AGREEMENT
THIS LOAN AGREEMENT made and entered into this 16th day of
June, 1993 by and between:
ORANGE-CO, INC., a Florida corporation
and ORANGE-CO OF FLORIDA, INC., a Florida
corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter collectively
referred to as the "Borrowers");
and
SUN BANK, NATIONAL ASSOCIATION, a
national banking association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrowers desire to borrow and obtain from the
Bank a working capital line of credit loan up to the maximum
principal amount of $20,000,000.00; and
WHEREAS, the Bank is willing to grant such loan upon the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the above
premises and the mutual covenants and agreements contained
herein, the Borrowers and the Bank agree as follows:
ARTICLE ONE
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Definitions. For the purposes of this
Agreement, the following terms shall have the respective meanings
specified in this Section 1.01 (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
"Account" shall mean any right to payment for goods sold or
leased or for services rendered by either Borrower which is not
evidenced by an instrument or chattel paper, whether or not it
has been earned by performance including, but not limited to, all
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contract rights and agreements to purchase or sell citrus fruit
or juice.
"Account Debtor" shall mean the Person who is obligated on
an Account.
"Advance" shall mean individually and collectively the
proceeds of the Working Capital Loan delivered to the Borrowers
by the Bank pursuant to Section 2.02 hereof.
"Affiliate" shall mean any Person directly or indirectly
controlling, controlled by, or under direct or indirect common
control with either Borrower, including a Subsidiary. A Person
shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of such corporation,
whether through the ownership of voting securities, by contract,
or otherwise.
"Agreement" shall mean this Loan Agreement as originally
executed by the parties hereto and all permitted supplements,
amendments, modifications and restatements hereof.
"Banking Day" shall mean that part of any day for dealings
by and between banks, excluding Saturday, Sunday or a day in
which commercial banks in Florida are authorized to close.
"Base Accounts" shall mean all Accounts of either Borrower
arising from sales made to customers and in which the Bank has a
perfected first priority Security Interest and such Borrower has
furnished to the Bank information as set forth in Section 4.01
(a) (v) hereinbelow. If and when a particular Base Account
exists by virtue of constituting proceeds of Base Inventory, the
Inventory giving rise to the Base Account automatically loses its
status as Base Inventory.
"Base Inventory" shall mean Inventory comprised of citrus
fruit juice and other fruit juice and juice concentrate,
including pulp washes and other citrus beverages, other juice
based, isotonic, and tea beverages owned by and (i) in the
possession and under the control of either Borrower or (ii)
located in a warehouse acceptable to the Bank in its sole
discretion; and as to which such Borrower has acquired title and
the Bank has acquired a perfected first priority Security
Interest and such Borrower has furnished to the Bank the
information required by Section 4.01 hereinbelow. Inventory
immediately loses its status as Base Inventory if and when such
Borrower either (i) sells it other than when selling it short on
the futures market or pursuant to a forward contract, or (ii)
otherwise passes title to it or consumes it or the Bank releases
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or ceases to have a perfected first priority Security Interest
therein.
"Borrower's Loan Certificate" shall mean the Certificate of
the Secretary or Assistant Secretary of the Borrowers referred to
in and required by Section 5.07(a) of this Agreement.
"Borrowing Base" shall mean, at any date of determination
thereof, an amount equal to the then aggregate of (i) eighty-five
percent (85%) of the Qualified Accounts, (ii) eighty-five percent
(85%) of Finished Goods Inventory, and (iii) eighty-five percent
(85%) of Specialty Products Inventory. The value of the Qualified
Accounts shall be reasonably determined by the Bank. The
Finished Goods Inventory that has been hedged shall be valued at
the hedged price and the Finished Goods Inventory that has not
been hedged shall be valued at the lower of the near month's
futures price or the Florida bulk cash price. The Specialty
Products Inventory shall be valued at standard cost.
"Borrowing Base Certificate" shall mean a certificate
executed and certified correct by an officer of the Borrowers, in
form acceptable to the Bank, setting forth a calculation of the
Borrowing Base and borrowing availability under the Working
Capital Loan.
"Cash Flow Before Debt Service" shall mean (i) the sum of
the Borrowers' net profits before taxes plus (ii) depreciation,
amortization, and other non-cash charges plus (iii) interest paid
or accrued for the most recent twelve months.
"Cash Management Agreement" the cash management agreement
between the Borrower and the Bank as the same may be amended or
modified from time to time.
"Chattel Paper" shall mean a writing or writings that
evidence both a monetary obligation and a security interest in,
or lease of specific goods.
"Collateral" shall mean all (i) the Accounts, Chattel Paper,
Documents, Farm Products, General Intangibles, Instruments and
Inventory, whether now owned or hereafter acquired by either
Borrower, and Proceeds thereof and, (ii) all other property and
money of either Borrower now or hereafter in the possession,
custody or control of the Bank or any of its affiliates.
"Current Assets" shall mean those assets which in the
regular course of business of the Borrowers and their
Subsidiaries on a consolidated basis will be readily and quickly
realized, or converted into cash, all in accordance with GAAP
within the applicable accounting or time period together with
such additional assets as may readily be converted into cash
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without impairing the business of the Borrowers or any of their
Subsidiaries, and shall include cash, temporary investments,
receivables, inventories and prepaid expenses but shall exclude
all inter-company assets between any Borrower, the other Borrower
or Subsidiaries.
"Current Liabilities" shall mean those liabilities of the
Borrowers and their Subsidiaries on a consolidated basis, or any
portion thereof, the maturity of which will not extend beyond one
year from the date said determination is to be made.
"Current Ratio" shall mean the ratio of the Borrowers'
Current Assets to Current Liabilities, determined on a
consolidated basis.
"Day" shall mean a calendar day, unless the context
indicates otherwise.
"Debt Service" shall mean the sum of the principal and
interest paid by the Borrowers for the most recent twelve (12)
months.
"Default" shall mean any event or condition which with the
passage of time or giving of notice, or both, would constitute an
Event of Default.
"Default Rate" shall mean the lesser of (i) Prime Rate plus
three percent (3%) or (ii) the highest rate of interest permitted
from time to time by applicable law.
"Documents" shall mean a ▇▇▇▇ of lading, dock warrant, dock
receipt, a warehouse receipt or order for the delivery of goods,
but also any other document which in the regular course of
business or financing is treated as adequately evidencing that
the person in possession of it is entitled to receive, hold and
dispose of the document and the goods it covers.
"Dollars" shall mean lawful money of the United States of
America.
"Due Date" shall mean the date any payment of principal or
interest is due and payable on the Loan or the Note.
"ERISA" shall mean the Employment Retirement Income Security
Act of 1974, as amended.
"Events of Default" shall mean the events of default
specified in Article Six of this Agreement and each of the Events
of Default shall be an "Event of Default".
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"Farm Products" shall mean crops or livestock or supplies
used or produced in farming operations or products of crops or
livestock in their unmanufactured states if they are in the
possession of either Borrower engaged in raising, fattening,
grazing or other farming operations including harvested but
unprocessed citrus fruit.
"Financing Statement" shall mean the financing statement
permitted under the UCC or any other state law for the purpose of
perfecting the Security Interest.
"Finished Goods Inventory" shall mean that portion of the
Qualified Inventory which constitutes frozen concentrated orange
juice in a form which could be deliverable under the New York
Cotton Exchange Contracts after such is blended with other
current Inventory or water, as may be necessary to meet the
requirements for such delivery. The blended frozen concentrated
orange juice shall be rated U.S. Grade "A" with a "brix" value of
not less than 51 degrees plus or minus 3 degrees, having a brix-
to-acid ratio of not less than 13:1 nor more than 19:1 and a
minimum score of 94. Qualified Inventory that is classified as
"Finished Goods Inventory" shall not be simultaneously classified
as "Specialty Products Inventory."
"Funded Liabilities" shall mean and include without
duplication,
(i) any liability or obligation payable more than one year
from the date of creation thereof, which under GAAP is shown on
the balance sheet as a liability (excluding reserves for deferred
income taxes and other reserves to the extent that such reserves
do not constitute an obligation),
(ii) indebtedness payable more than one year from the date
of creation thereof which is secured by any Lien on property
owned by either Borrower or any Subsidiary, whether or not the
indebtedness secured thereby shall have been assumed by either
Borrower or any Subsidiary,
(iii) guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary course of
business), and other contingent liabilities (whether direct or
indirect) in connection with the obligations, stock, or dividends
of any Person,
(iv) obligations under any contract providing for the making
of loans, advances, or capital contributions to any Person in
order to enable such Person primarily to maintain working
capital, net worth, or any other balance sheet condition or to
pay debts, dividends, or expenses, and
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(v) obligations under any contract which, in economic
effect, is substantially equivalent to a guarantee;
all as determined in accordance with GAAP.
"GAAP" shall mean generally accepted accounting principles
consistently applied to the particular item.
"General Intangibles" shall mean any personal property of
either Borrower, (including things in action) other than goods,
Accounts, Chattel Paper, Documents, Instruments and money.
"IRS Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Initial Advance" shall mean the delivery of a portion of
the proceeds of the Working Capital Loan pursuant to the terms
hereof to pay the amount necessary in order to cover all costs
and expenses incident to the closing of the transactions
contemplated hereby, including, without limitation, the
attorneys' fees and costs of the Bank's legal counsel.
"Initial Advance Date" shall mean the date of this
Agreement.
"Instruments" shall mean negotiable instruments or any other
writing which evidences a right to payment of money and is not
itself a security agreement or lease and is of a type which is in
ordinary course of business transferred by delivery with any
necessary endorsement or assignment.
"Interest Period" shall mean any interest period applicable
to a particular Advance on a Loan which, in the case of a Prime
Loan, shall be daily, and, in the case of a LIBOR Loan, shall be
determined in accordance with Section 2.02 hereof.
"Interest Rate" shall mean the fluctuating interest rate
applicable to the Loan, which, in the case of the Working Capital
Loan shall equal either (i) LIBOR plus one hundred (100) basis
points or (ii) Prime Rate minus one half of one percent (0.5%);
provided, however, the Interest Rate shall never exceed the
maximum rate allowable by law.
"Interest Rate Determination Date" shall mean each date for
calculating LIBOR or the Prime Rate, as the case may be, for the
purpose of determining the Interest Rate with respect to a
particular Interest Period which date shall be the first Banking
Day of the related Interest Period in the case of either a Prime
Loan or a LIBOR Loan.
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"Inventory" shall mean goods held for sale or lease or being
possessed for sale or lease in the business of the Borrowers, now
or hereafter conducted, including all materials, goods and work-
in process, finished goods and other tangible property now owned
or hereafter acquired and held for sale or lease or furnished or
to be furnished under contracts of service or used or consumed in
the business of either Borrower including citrus fruit (after
severance from the tree), citrus fruit juices, concentrate and
products thereof.
"LIBOR" shall mean, with respect to any Interest Period, the
interest rate announced by the Bank as its LIBOR rate on the
applicable Interest Rate Determination Date for the applicable
Interest Period.
"LIBOR Loan" shall mean the Loan or portion(s) thereof
bearing interest based upon LIBOR.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien, or charge of any kind (including any agreement
to give any of the foregoing, any conditional sales or other
title retention agreements, or any lease in the nature thereof,
and the filing of or agreement to give any financing statement
under the Uniform Commercial Code of any jurisdiction).
"Loan" or "Loans" shall mean the Working Capital Loan.
"Loan Documents" shall mean this Agreement, the Note, the
Financing Statements, the Security Documents, and all of the
other documents, agreements, certificates, schedules, notes,
statements and opinions, however described, referenced herein or
executed or delivered pursuant hereto or in connection with or
arising with the Loan or the transactions contemplated by this
Agreement.
"Margin Securities" shall mean any "margin securities"
within the meaning of Regulation G of the Board of Governors of
the Federal Reserve System (12 CFR Part 207).
"Net Worth" shall mean the excess of (i) Total Assets over
(ii) Total Liabilities.
"Note" or "Notes" shall mean the Working Capital Note, as
the context may require.
"Obligations", with respect to the Borrowers, shall mean,
individually and collectively, the payment and performance
duties, obligations and liabilities of either Borrower to the
Bank, evidenced by the Note, together with all accrued but unpaid
interest thereon, and all other payment and performance duties,
obligations and liabilities of either Borrower to the Bank,
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however and whenever incurred, acquired or evidenced, whether
primary or secondary, direct or indirect, absolute or contingent,
sole or joint and several, or due or to become due, including,
without limitation, all such duties, obligations and liabilities
of either Borrower to the Bank, under and pursuant to this
Agreement, the Note and the Security Documents and all renewals,
modifications or extensions of any thereof.
"Officers' Certificate" shall mean a certificate signed in
the name of Borrowers, by a President, a Vice President, or
Treasurer.
"Opinion" shall mean the legal opinion of counsel to the
Borrowers, in form acceptable to the Bank.
"Person" shall mean any individual, joint venturer,
partnership, firm, corporation, trust, unincorporated
organization or other organization or entity, or a governmental
body or any department or agency thereof, and shall include both
the singular and the plural.
"Place of Business" shall mean any location in which the
Borrower undertakes its business, all as set forth in Exhibit "A"
attached hereto.
"Plan" shall mean an employee benefit plan or plans and any
trust created thereunder which has been established or maintained
or hereafter is established or maintained for employees of either
Borrower or any Subsidiary, provided such plan is covered by
Title I or IV of ERISA.
"Prime Rate" shall mean the interest rate (not necessarily
the best or lowest rate), announced by Sun Banks, Inc., from time
to time, as the Prime Rate (which interest rate is only a
benchmark, is purely discretionary and is not necessarily the
best or lowest interest rate charged borrowing customers of any
subsidiary bank of Sun Banks, Inc.); provided, however, that said
interest rate will never exceed the maximum rate allowed, from
time to time, by law, with any change in the Prime Rate to be
effective on the day any such change in the Prime Rate is
announced by the Bank.
"Prime Rate Loan" shall mean the Loan or portion(s) thereof
bearing interest based upon the Prime Rate.
"Principal Place of Business" shall mean the principal place
of business and the headquarters of the Borrowers at which all of
their records are kept, currently at the address set forth in the
preamble to this Agreement.
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"Proceeds" shall mean whatever is received upon the sale,
exchange, collection or other disposition of the Collateral.
"Prohibited Transaction" shall have the meaning assigned to
that term in Section 406 of Title I of ERISA.
"Qualified Accounts" shall mean all Base Accounts of the
Borrowers excluding (i) Accounts from any Affiliates, (ii)
Accounts outstanding and not paid in full for a period of sixty
(60) days from and after the date of the Account, (iii) all
Accounts from any Account Debtor if ten percent (10%) of the
Accounts from that Account Debtor have not been paid within
ninety (90) days after the date of the Account, (iv) Accounts
from any Account Debtor to whom either Borrower is indebted and
as to which any defense, set-off or counterclaim with respect to
payment in full of said obligations has been asserted or
threatened by the Account Debtors, (v) any Account that either
Borrower determines is not collectible in accordance with
customary terms applicable to such Account, and (vi) any other
Accounts that the Bank in its reasonable discretion determines
not to be a Qualified Account.
"Qualified Inventory" shall mean the value of Base Inventory
as determined by the Bank pursuant to the terms and conditions of
this Agreement in its reasonable discretion after deducting
therefrom the value of Base Inventory considered by the Bank in
its reasonable discretion not to be creditworthy, and after
taking into account charges and liens other than those of the
Bank of all kinds affecting the Base Inventory, which
determination shall be conclusive and binding upon the Borrower.
"Related Entity" shall mean any entity if, with respect to
either Borrower, any of the entity's employees fall within any of
the following categories: (a) employees of controlled group of
corporations as defined in Section 414(b) of the IRS Code; (b)
employees of partnerships, proprietorships or other entities
which are under common control as defined in Section 414(c) of
the IRS Code; (c) employees of affiliated service groups as
defined in Section 414(m) of the IRS Code; or (d) employees of
entities which are deemed affiliated or related to either
Borrower in accordance with Sections 414(n) or (o) of the IRS
Code.
"Reportable Event" shall have the meaning assigned to that
term in Section 4043 of Title IV of ERISA.
"Revolving Period" shall mean the period during the term of
the Working Capital Loan, commencing on the date hereof and
ending on the occurrence of (i) an Event of Default or (ii)
January 31, 1995, or such later date as the Bank may in its
absolute discretion agree to in writing, whichever first occurs.
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"Security Agreements" shall mean the security agreements of
the Borrowers granting a Security Interest to the Bank in the
Collateral, in form acceptable to the Bank, and all supplements,
amendments, modifications and restatements thereof.
"Security Documents" shall mean the Security Agreements, and
all other documents, agreements, assignments, filings, financing
statements, certificates of title, notices, returns and other
security instruments and records, however described or
denominated, now or hereafter created or existing, pledging or
evidencing any pledge of any property or assets, however
described, to secure any or all of the Obligations.
"Security Interest" shall mean the first priority security
interest in the Collateral granted by the Borrowers to the Bank
under the Security Agreements.
"Specialty Products Inventory" shall mean Base Inventory of
either Borrower consisting of citrus and non-citrus fruit juices
and other juice based, isotonic, and tea beverages, both in
concentrate and single strength formulations, for sale to
institutional and other customers. Qualified Inventory that is
classified as "Specialty Products Inventory" shall not be
simultaneously classified as "Finished Goods Inventory."
"Subsequent Advances" shall mean individually and
collectively all Advances hereunder after the Initial Advance.
"Subsidiary" shall mean any corporation fifty percent (50%)
or more of the voting stock of which is owned, directly or
indirectly, by either Borrower, and shall include subsidiaries of
a subsidiary.
"Total Assets" shall mean all assets of the Borrowers and
their Subsidiaries, determined on a consolidated basis, all as
determined in accordance with GAAP.
"Total Liabilities" or "Liabilities" shall mean all
liabilities and obligations of the Borrowers and their
Subsidiaries, determined on a consolidated basis, all as
determined in accordance with GAAP, and shall include Funded
Liabilities and/or Current Liabilities, as the case may be.
"UCC" shall mean the Florida Uniform Commercial Code, as
amended.
"Voting Stock" of any corporation shall mean shares of any
class or classes (however designated) having ordinary voting
power for the election of at least a majority of the members of
the Board of Directors (or other governing bodies) of such
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corporation, other than shares having such power only by reason
of the happening of a contingency.
"Wholly-Owned Subsidiary" shall mean any Subsidiary, all of
the stock of every class of which, except directors' qualifying
shares, shall, at the time as of which any determination is being
made, be owned by either Borrower either directly or through
wholly-owned Subsidiaries.
"Working Capital Loan" shall mean the loan or loans up to
but not exceeding the principal amount of $20,000,000.00 made to
the Borrowers by the Bank pursuant to and in accordance with the
terms of this Agreement.
"Working Capital Note" shall mean the Borrowers' promissory
note or notes evidencing the Working Capital Loan, in form
acceptable to the Bank, and any and all allonges thereto, and any
and all extensions, renewals or modifications thereof.
SECTION 1.02 Accounting Terms. All accounting terms used
herein shall be construed in accordance with GAAP (unless such
terms are specifically defined otherwise herein) consistently
applied and all financial data submitted pursuant to this
Agreement shall be prepared in accordance with GAAP. In the event
of ambiguities or changes in GAAP, the more conservative
principle or interpretation shall be used.
ARTICLE TWO
AMOUNTS AND TERMS OF THE LOAN
SECTION 2.01 Working Capital Loan. The Bank agrees from
time to time during the Revolving Period to lend to the
Borrowers, upon the request of either Borrower, or pursuant to
the Cash Management Agreement, on the terms and conditions set
forth herein, up to the lesser of (i) $20,000,000.00 or (ii) the
amount of the Borrowing Base. During the Revolving Period, the
Borrowers shall be entitled to receive the entire proceeds of the
Working Capital Loan in one or more Advances pursuant to Section
2.02 hereof, except as otherwise specifically set forth in this
Agreement. Advances under the Working Capital Loan shall be
evidenced by the Working Capital Note, payable as provided in
Section 2.08 hereof. After the expiration of the Revolving
Period, the Borrowers shall not be entitled to receive any
Subsequent Advance. The Working Capital Loan may revolve during
the Revolving Period; accordingly, during the Revolving Period,
the Borrowers may borrow up to the maximum principal amount of
said Loan, repay all or any portion of such principal amount of
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said Loan, and reborrow up to such maximum principal amount,
subject to the terms and conditions set forth herein.
SECTION 2.02 Advances; Interest Rate Selection.
(a) On the Initial Advance Date and upon satisfaction of
the conditions precedent set forth in Article Five hereof, the
Initial Advance with respect to the Loan shall be disbursed by
the Bank on behalf of the Borrowers. If the Borrowers shall fail
to satisfy the conditions precedent set forth in Article Five
hereof on the Initial Advance Date, the Bank's commitment to lend
funds to or on behalf of the Borrowers shall terminate. After the
Initial Advance and upon continued satisfaction of the conditions
precedent set forth in Article Five hereof, the Borrowers shall
be entitled to receive Subsequent Advances.
(b) When necessary, the Bank shall as soon as practical
provide Borrowers with its determination of the then available
Interest Rates offered by the Bank on the Loan for the requested
Interest Periods (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) and the
Borrowers shall give the Bank notice, in writing if required by
the Bank, by 1:00 p.m. Orlando, Florida time, or such other time
as may be acceptable to the Bank (an "Interest Rate Selection
Notice") which shall specify (i) the amount(s) of the Advance(s)
on the Loan(s), (ii) whether the Advance(s) shall bear interest
based upon Prime Rate or LIBOR and (iii) in the case of an
Advance bearing interest based upon LIBOR, the Interest Period(s)
applicable thereto. The Bank shall have no duty or obligation to
verify or confirm the authority of the representative of the
Borrowers requesting any such Subsequent Advance as long as said
person identifies himself as an employee or representative of the
Borrowers.
(c) By giving notice as set forth hereinabove, the
Borrowers shall have the option, subject to the other provisions
of this Section 2.02, to specify whether the Interest Period
applicable to a LIBOR Loan commencing on any such date shall be a
period of 1, 30, 60, 90 or 180 days or such other period as may
be agreed upon between the Borrowers and the Bank; provided,
that:
(i) in the case of immediately successive Interest
Periods, each successive Interest Period shall commence on the
Day on which the immediately preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on
a Day which is not a Banking Day, that Interest Period shall be
extended to expire on the next succeeding Banking Day; provided,
that if any such Interest Period would otherwise expire on a Day
which is not a Banking Day but is a Day of the month after which
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no further Banking Day occurs in that month, that Interest Period
shall expire on the next preceding Banking Day;
(iii) any Interest Period which begins on the last
Banking Day of a calendar month (or on a Day for which there is
no numerically corresponding Day in the calendar month at the end
of such Interest Period) shall end on the last Banking Day of a
calendar month;
(iv) no Interest Period applicable to a Loan shall
extend beyond, the last day of the Revolving Period, as it may
exist from time to time.
(v) if the Borrower fails to provide the Bank with an
Interest Rate Selection Notice by the last Day of an Interest
Period for a particular Loan, the Borrower shall be deemed to
have selected an Interest Period maturing on the next Business
Day for such Loan.
(d) Requests by the Borrowers for any Subsequent Advance
hereunder on any date shall be in the minimum principal amount of
$10,000.00 or such lesser amount as may be acceptable to the
Bank. The Bank shall make each Subsequent Advance hereunder on
the date proposed by the Borrowers therefor (which may be the
same Banking Day if such request is made by the Borrowers and is
received by the Bank prior to 1:00 p.m. Orlando time), otherwise
no earlier than the following Banking Day) by crediting the
amount of each Subsequent Advance requested by the Borrowers to
the general deposit account of the Borrowers maintained with the
Bank or any other subsidiary bank of Sun Banks, Inc.
SECTION 2.03 Interest on The Note. The Loan shall be
evidenced by the Note and shall be due and payable in accordance
with and as required by Section 2.08. The Borrowers shall not be
liable under the Working Capital Note except with respect to
funds actually advanced to either Borrower by the Bank pursuant
to the terms hereof. The Note shall bear interest from the date
thereof on the unpaid principal balance thereof from time to time
outstanding at a fluctuating interest rate per annum equal to the
lesser of (i) the rate specified in the Note or (ii) the maximum
rate of interest permitted by law from time to time.
From and after the Due Date, interest shall accrue on the unpaid
principal balance of the Loan and on all accrued but unpaid
interest thereon, or on any defaulted payment, from the Due Date
at the Default Rate. Such interest shall continue to accrue until
the date of payment in full of all principal and accrued but
unpaid interest of such defaulted payment, if applicable.
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SECTION 2.04 Restriction on Prepayment. The Borrowers may
not prepay all or any part of the principal amount of the Loan
outstanding except on the last Banking Day of the Interest Period
applicable to a particular Advance. Each prepayment other than
full payment shall be made prior to 2:00 P.M. (Orlando time) on
the date of the prepayment, and shall be made on a Banking Day in
immediately available funds. Prepayments may be made by the Bank
pursuant to the Cash Management Agreement.
SECTION 2.05 Calculation of Interest. Any interest due on
the Loan or any other Obligations shall be calculated on the
basis of a year containing 365 days. The interest due on any date
for payment of interest hereunder shall be that interest to the
extent accrued as of midnight on the last Day immediately prior
to that interest payment date. Notwithstanding anything herein or
in any Loan Document to the contrary, the sum of all interest and
all other amounts deemed interest under Florida or
other applicable law which may collected by the Bank hereunder
shall not exceed the maximum lawful interest rate permitted by
such law from time to time. The Bank and the Borrowers intend and
agree that under no circumstance shall the Borrowers be required
to pay interest on the Loan or on any other Obligations at a rate
in excess of the maximum interest rate permitted by applicable
law from time to time, and in the event any such interest is
received or charged by the Bank in excess of that rate, the
Borrowers shall be entitled to an immediate refund of any such
excess interest by a credit to and payment toward the unpaid
balance of the Loan (such credit to be considered to have been
made at the time of the payment of the excess interest) with any
excess interest not so credited to be immediately paid to the
Borrowers by the Bank.
SECTION 2.06 Place of Payment. All payments by the
Borrowers under the Loan Documents shall be made to the Bank at
its office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
in lawful money of the United States of America and in
immediately available funds.
SECTION 2.07 Set-off. Each of the Borrowers hereby grants
to the Bank a lien on, and a security interest in, the deposit
balances, accounts, items, certificates of deposit and monies of
such Borrowers and each Subsidiary in the possession of or on
deposit with the Bank or any of its affiliates to secure and as
collateral for the payment and performance of the Obligations.
Upon Default, the Bank may at any time and from time to time,
without demand or notice, appropriate and set-off against and
apply the same to the Obligations when and as due and payable.
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SECTION 2.08 Payment of Note. The Borrowers shall jointly
and severally pay the Working Capital Note together with interest
at the rate set forth in said Note as follows:
(i) Interest shall be payable on the first day of
each and every July, October, January and April during the
Revolving Period commencing on July 1, 1993.
(ii) The entire unpaid principal balance together with
accrued interest shall be due and payable in full on the last day
of the Revolving Period.
SECTION 2.09 Application of Payments. All payments (other
than prepayments as set forth in Section 2.04) made on the Note
shall be applied first to interest accrued to the date of payment
and next to the unpaid principal balance provided, however, in
the event an Event of Default occurs, payments shall be applied
first to any costs or expenses, including attorneys fees, that
the Bank may incur in exercising its rights under the Loan
Documents, as the Bank may determine.
SECTION 2.10 Loan Fee. The Borrower shall pay a loan fee
equal to one fourth of one percent (0.25%) of the amount of the
Loan.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
The Borrowers individually and collectively represent and
warrant to the Bank that:
SECTION 3.01 Organization; Corporate Powers; Etc. Each
Borrower (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida, (ii)
has all requisite power and authority, corporate and otherwise,
to own its respective properties and assets and to carry on its
respective business as now conducted and proposed to be
conducted, (iii) is duly qualified to do business and is in good
standing in every jurisdiction in which the character of its
properties or assets owned or the nature of its activities
conducted makes such qualification necessary including the State
of Florida, and (iv) has the corporate power and authority to
execute and deliver, and to perform its obligations under this
Agreement, the Note, the Security Documents and the other Loan
Documents.
SECTION 3.02 Authorization of Loan; Etc. The execution,
delivery and performance of the Loan Documents by the Borrowers
(a) have been duly authorized by all requisite corporate action
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(no shareholder action being required pursuant to applicable law)
and (b) will not (i) violate (y) any provision of law, any
governmental rule or regulation, any order of any court or other
agency of government or the Articles of Incorporation or by-laws
of either Borrower or (z) any provision of any indenture,
agreement or other instrument to which either Borrower is a party
or by which either Borrower or any of its properties or assets
are bound, (ii) be in conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument, or (iii)
result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties
or assets of either Borrower other than as permitted by the terms
hereof.
SECTION 3.03 Conflicting Agreements and Other Matters.
Neither Borrower is a party to any contract or agreement or
subject to any charter or other corporate restriction which
materially and adversely affects its respective business,
property or assets, or financial condition. Neither the
execution nor delivery of this Agreement, the Note, the Security
Documents or the other Loan Documents, nor fulfillment of nor
compliance with the terms and provisions hereof or the other Loan
Documents will conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or
result in any violation of, or result in the creation of any Lien
upon any of the properties or assets of either Borrower pursuant
to, the charter or by-laws of such Borrower, any award of any
arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law,
rule or regulation to which either Borrower is subject. Neither
Borrower is a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness, any
agreement relating thereto or any other contract or agreement
(including its charter) which restricts or otherwise limits the
incurring of the debt to be evidenced by the Note.
SECTION 3.04 Financial Statements. The Borrowers have
furnished the Bank with an audited consolidated balance sheet of
the Borrowers and their Subsidiaries as at September 30, 1992,
and audited consolidated profit and loss and surplus statement of
the Borrowers and their Subsidiaries for the fiscal year ended on
such date, all audited by KPMG Peat Marwick certified to be
correct by a principal financial officer of the Borrower. Such
financial statements (including any related schedules and/or
notes) are true and correct in all material respects and have
been prepared in accordance with GAAP and show all liabilities,
direct and contingent, of the Borrowers and their Subsidiaries
required to be shown in accordance with such principles. The
balance sheets fairly present the condition of the Borrowers and
their Subsidiaries as at the dates thereof, and the profit and
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loss and surplus statements fairly present the results of the
operations of the Borrowers and their Subsidiaries for the
periods indicated. There has been no material adverse change in
the business, condition or operations (financial or otherwise) of
the Borrowers or their Subsidiaries taken as a whole since the
date of the financing statements noted above.
SECTION 3.05 Changes in Financial Conditions; Adverse
Developments. From the date of the annual financial statements
referenced in Section 3.04 hereof, to the date of this Agreement,
there has been, and to the date of the Initial Advance and each
Subsequent Advance there will be, no change in the properties,
assets, liabilities, financial condition, business, operations,
affairs or prospects of the Borrowers and their Subsidiaries on a
consolidated basis from that set forth or reflected in the fiscal
year-end balance sheet referred to in Section 3.04, other than
changes in the ordinary course of business and those changes that
have been disclosed to the Bank, including acquisitions, none of
which have been, either in any case or in the aggregate,
materially adverse.
SECTION 3.06 Tax Returns and Payments. All federal, state
and local tax returns and reports of the Borrowers required to be
filed have been filed, and all taxes, assessments, fees and other
governmental charges upon the Borrowers, or upon any of its
properties, assets, incomes or franchises, which are due and
payable in accordance with such returns and reports, have been
paid, other than those presently (a) payable without penalty or
interest, or (b) contested in good faith and by appropriate and
lawful proceedings prosecuted diligently. The aggregate amount of
the taxes, assessments, charges and levies so contested is not
material to the condition (financial or otherwise) and operations
of the Borrowers. The charges, accruals, and reserves on the
books of the Borrowers in respect of federal, state and local
taxes for all fiscal periods to date are adequate and the
Borrowers know of no other unpaid assessment for additional
federal, state or local taxes for any such fiscal period or of
any basis therefor. The Borrowers have and will establish all
necessary reserves and make all payments required of them to be
set aside or made in regard to all F.I.C.A., withholding, sales
or excise, and all other similar federal, state and local taxes.
SECTION 3.07 Agreements.
(a) Neither Borrower is a party to any agreement, indenture,
lease or instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree,
rule or regulation materially and adversely affecting its
respective business, properties, assets, operations or condition
(financial or otherwise). There are no material unrealized losses
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with respect to any such agreement, indenture, lease or
instrument.
(b) Neither Borrower is in default in the performance,
observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to which it
is a party.
(c) Each Borrower enjoys peaceful and undisturbed possession
in all material respects under all leases as to which it is a
lessee and all such leases are valid and subsisting and in full
force and effect.
SECTION 3.08 Title to Properties and Assets; Liens; Etc.
Each Borrower has good and marketable title to its respective
real properties other than properties which it leases and good
title to all of its other properties and assets, including the
properties and assets reflected in the balance sheet hereinabove
described (other than properties and assets disposed of in the
ordinary course of business). Each Borrower enjoys peaceful and
undisturbed possession of all leases necessary in any material
respect for the operation of its respective properties and
assets, none of which contains any unusual or burdensome
provisions which might materially affect or impair the operation
of such properties and assets.
SECTION 3.09 Securities Acts. Neither Borrower nor any
agent acting on the behalf of either of them has, directly or
indirectly, taken or will take any action which would subject the
issuance of the Note to the provisions of Section 5 of the
Securities Act of 1933, as amended, or to the provisions of any
securities or Blue Sky law of any applicable jurisdiction.
SECTION 3.10 Regulation G. Etc. Neither Borrower nor any
agent acting on the behalf of either of them has taken or will
take any action which might cause this Agreement or the Note to
violate Regulation G, T or X or any other regulation of the Board
of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934, in each case as in effect now or
as the same may hereafter be in effect.
SECTION 3.11 Litigation; Etc. There are no actions,
proceedings or investigations, however described or denominated,
pending or, to the knowledge of either Borrower, threatened,
against either Borrower or any Subsidiary, or affecting either
Borrower or any Subsidiary (or any basis therefor known to either
Borrower) which, either in any case or in the aggregate, might
result in any material adverse change in the financial condition,
business, prospects, affairs or operations of the Borrowers or
their Subsidiaries or in any of their properties or assets, or in
any material impairment of the right or ability of the Borrowers
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or any Subsidiary to carry on their respective operations as now
conducted or proposed to be conducted, or in any material
liability on the part of the Borrowers or any Subsidiary, or
which questions the validity of this Agreement, the Note, the
Security Documents or any of the other Loan Documents or of any
action taken or to be taken in connection with the transactions
contemplated hereby or thereby.
SECTION 3.12 Regulation U. Neither Borrower is engaged
principally in, and has as one of its important activities, the
business of extending credit for the purpose of purchasing or
carrying any Margin Securities. No part of the proceeds of the
Loan hereunder will be used to carry on any margin security
transactions within the meaning Regulation.
SECTION 3.13 Patents; Trademarks; Franchises; Etc. Except
as disclosed to the Bank, the Borrowers own or have the right to
use all of the patents, trademarks, service marks, trade names,
copyrights, franchises and licenses, and all rights with respect
thereto, necessary for the conduct of their business as now
conducted or proposed to be conducted without any known conflict
with the rights of others, and, in each case, subject to no
mortgage, pledge, lien, lease, encumbrance, charge, security
interest, title retention agreement or option. Each such asset or
agreement is in full force and effect, and the holder thereof has
fulfilled and performed all of its obligations with respect
thereto. No event has occurred or exists which permits, or after
notice or lapse of time or both would permit, revocation or
termination, or which materially adversely affects or in the
future may (so far as the Borrowers now foresee) materially
adversely affect, the rights of such holder thereof with respect
thereto. No other license or franchise is known by the Borrowers
to be necessary to the operations of the businesses of the
Borrowers as now conducted or proposed to be conducted.
SECTION 3.14 ERISA. No material employee benefit plan
established or maintained by either Borrower or any Subsidiary or
Affiliate of the Borrowers (including any multiemployer plan to
which either Borrower or any Affiliate of the Borrowers
contributes) which is subject to Part 3 of Subtitle B of Title I
of ERISA had a material accumulated funding deficiency (as such
term is defined in Section 302 of ERISA) as of the last day of
the most recent fiscal year of such plan ended prior to the date
hereof, or would have had an accumulated funding deficiency (as
so defined) on such day if such year were the first year of such
plan to which Part 3 of Subtitle B of Title I of ERISA applied,
and no material liability to the Pension Benefit Guaranty
Corporation, has been, or is expected by the Borrowers or any
Affiliate of the Borrowers to be, incurred with respect to any
such plan by the Borrowers or any Affiliate of the Borrowers.
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Neither Borrower is required to contribute to or is
contributing to a "Multiemployer Pension Plan" (as such term is
defined in the Multiemployer Pension Plan Amendments Act of
1980). Neither Borrower has any "withdrawal liability" (as also
defined in such Act) to any multiemployer pension plan.
SECTION 3.15 Governmental Consent. Neither the nature of
the Borrowers nor of their business or properties nor any
relationship between the Borrowers and any other Person, nor any
circumstance in connection with the Loan or the issuance and
delivery of the Note is such as to require any consent, approval
or other action by or any notice to or filing with any court or
administrative or governmental body (other than routine filings
after the date of any closing with the Securities and Exchange
Commission and/or State Blue Sky authorities) in connection with
the execution and delivery of this Agreement, the Loan or the
issuance and delivery of the Note or fulfillment of or compliance
with the terms and provisions hereof or of the Note.
SECTION 3.16 Holding Company Status. Neither Borrower is a
holding company, or a subsidiary or affiliate of a holding
company, or a public utility, within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or a public
utility within the meaning of the Federal Power Act, as amended.
SECTION 3.17 Investment Company Status. Neither Borrower
is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended, or an "investment adviser" within the
meaning of the Investment Advisers Act of 1940, as amended.
SECTION 3.18 Outstanding Debt. On the date of the Initial
Advance, the Borrowers and their Subsidiaries have no outstanding
Funded Liabilities or Current Liabilities, except as reflected in
the fiscal year end financial statements of the Borrowers and
their Subsidiaries referred to in Section 3.04 hereof and changes
in the ordinary course of business and matters that have been
disclosed to the Bank. There exists no default and, after giving
effect to the transactions contemplated in this Agreement, there
will exist no default under the provisions of any instrument
evidencing such Liabilities or of any agreement relating thereto.
SECTION 3.19 Consents and Approvals. No authorization,
license, consent, approval, or undertaking is required under any
applicable law in connection with the execution, delivery and
performance by the Borrowers of this Agreement, the Note, the
Security Documents or any of the other Loan Documents.
SECTION 3.20 Places of Business. The Places of Business
set forth in Exhibit "A" attached hereto are true and correct and
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set forth, whenever applicable, whether said Place of Business is
owned or leased by the Borrowers and, if leased, the name and
address of the Lessor.
SECTION 3.21 Priority of Security Interest. The Security
Interest is a first priority security interest and there will be
no other security interests or other encumbrances upon the
Collateral during the term of the Loan.
SECTION 3.22 Subsidiaries. The Subsidiaries of the
Borrowers as of the date of this Agreement are noted on Exhibit
"B".
ARTICLE FOUR
COVENANTS OF THE BORROWERS
SECTION 4.01 Affirmative Covenants. The Borrowers jointly
and severally covenant, for so long as any of the principal
amount of or interest on the Note is outstanding and unpaid or
any duty or obligation of the Borrowers or the Bank hereunder or
under any of the other Obligations remains unpaid or unperformed,
as follows:
(a) Accounting; Financial Statements; Etc. The Borrowers
will deliver or cause to be delivered to the Bank copies of each
of the following:
(i) as soon as practicable and in any event within
forty-five (45) days after the end of each quarter in each fiscal
year, internally generated financial statements of the Borrowers
and their Subsidiaries for the period from the beginning of the
current fiscal year to the end of such quarter, in reasonable
detail and certified by an authorized financial officer of the
Borrowers, subject to changes resulting from year-end
adjustments;
(ii) as soon as practicable and in any event within
ninety (90) days after the end of each fiscal year, an audited
consolidated profit and loss statement, reconciliation of surplus
statement, and source and application of funds statement of the
Borrowers and their Subsidiaries for such year, and an audited
consolidated balance sheet of the Borrowers and their
Subsidiaries as at the end of such year, setting forth in each
case in comparative form corresponding consolidated figures from
the preceding annual audit and certified to the Borrowers by
independent certified public accountants of recognized standing
selected by the Borrowers whose certificate shall be in scope and
substance satisfactory to the Bank;
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(iii) promptly upon transmission thereof, copies of
all such financial statements, proxy statements, notices, and
reports as it shall send to all stockholders and of all
registration statements (without exhibits) and all reports which
either Borrower is or may be required to file with the Securities
and Exchange Commission or any governmental body or agency
succeeding to the functions of such Commission;
(iv) promptly upon receipt thereof, a copy of each
other report submitted to the Borrower by independent accountants
in connection with any annual, interim or special audit made by
them of the books of the Borrowers;
(v) on a monthly basis, a Borrowing Base Certificate;
and
(vii) with reasonable promptness, information regarding
the hedging activities of the Borrowers and their Subsidiaries
including a summary of all futures long and short positions and
such other data and information as from time to time may be
required by the Bank.
Together with each delivery of financial statements required by
clause (ii) above, the Borrowers shall deliver to the Bank a
certificate of said accountants stating that, in making the audit
necessary to have the certification of such financial statements,
they have obtained no knowledge of an Event of Default or
Default, or, if any such Event of Default or Default exists,
specifying the nature and period of existence thereof. Such
accountants, however, shall not be liable to anyone by reason of
their failure to obtain knowledge of any such Event of Default or
Default which would not be disclosed in the course of an audit
conducted in accordance with GAAP. The Borrowers also covenant
that forthwith upon any officer of the Borrowers obtaining
knowledge of any Event of Default or Default under this Agreement
or any other obligation of the Borrowers, it shall deliver to the
Bank an Officer's Certificate specifying the nature thereof, the
period of existence thereof, and what action the Borrowers
proposes to take with respect thereto.
(b) Inspection. The Borrowers will permit the Bank to visit
and inspect any of the properties and places of business of the
Borrowers, including their books and records (and to make
extracts therefrom to the extent reasonably related to
credit-worthiness), and to discuss their affairs, finances and
accounts with their officers, all at such reasonable times and as
often as may reasonably be requested.
(c) Maintenance of Corporate Existences; Compliance with
Laws. Each Borrower shall at all times preserve and maintain in
full force and effect its corporate existence, powers, rights,
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licenses, permits and franchises in the jurisdiction of its
incorporation; continue to conduct and operate its business
substantially as conducted and operated during the present and
preceding fiscal year except as agreed to by the Bank; operate in
substantial compliance with all applicable laws, statutes,
regulations, certificates of authority and orders in respect to
the conduct of its business; and qualify and remain qualified as
a foreign corporation in each jurisdiction in which such
qualification is necessary or appropriate in view of its business
and operations.
(d) Notice of Default. The Borrowers shall immediately
notify the Bank in writing upon the happening, occurrence or
existence of any Event of Default or Default and shall provide
the Bank with such written notice, a detailed statement by a
responsible officer of the Borrowers of all relevant facts and
the action being taken or proposed to be taken by the Borrowers
with respect thereto.
(e) Maintenance of Properties. Each Borrower shall
maintain or cause to be maintained in good repair, working order
and condition all properties used in its business including, but
not limited to, any real property and all improvements located
thereon, and from time to time will make or cause to be made all
appropriate repairs, renewals, improvements and replacements
thereof so that the businesses carried on in connection therewith
may be properly conducted at all times. Neither Borrower will do
or permit any act or thing which might materially impair the
value or commit or permit any material waste of its properties or
any part thereof, or permit any unlawful occupation, business or
trade to be conducted on or from any of its properties. To the
extent either Borrower leases any of its Places of Business, it
shall maintain and keep current at all times all leases for said
Places of Business.
(f) Notice of Suit; Proceedings; Adverse Change. The
Borrowers shall promptly give the Bank notice in writing (a) of
all threatened or actual actions or suits (at law or in equity)
and of all threatened or actual investigations or proceedings by
or before any court, arbitrator or any governmental department,
commission, board, bureau, agency or other instrumentality,
state, federal or foreign, affecting the Borrowers or any
subsidiary or the rights or other properties of either Borrower
or any Subsidiary, (i) which involves potential liability of
either Borrower or any Subsidiary in an amount in excess of
$250,000.00 in any individual case or $250,000.00 in the
aggregate for all such cases, or (ii) which the Board of
Directors of either Borrower has reason to believe in good faith
is likely to materially and adversely affect the financial
condition of the Borrowers or to impair the right or ability of
the Borrowers to carry on their businesses as now conducted or to
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pay the Obligations or perform their duties under the Loan
Documents; (b) of any material adverse change in the condition
(financial or otherwise) of the Borrowers; and (c) of any seizure
or levy upon any material part of the properties of the Borrowers
under any process or by a receiver.
(g) Insurance. The Borrowers shall timely procure and
maintain and comply with such insurance and policies of insurance
(including without limitation public liability, property damage
and casualty business interruption) as may be required by law and
such other insurance, to such extent and against such hazards and
liabilities, as is customarily maintained by companies similarly
situated, and to furnish to the Bank upon its request evidence of
said insurance. In any event, the Borrowers shall all times
maintain at least the policies of insurance and the levels of
insurance coverage as are requested from time to time by the
Bank. The Bank shall be listed as "loss payee" or "mortgagee" on
all such policies of insurance relating to the Collateral and
certificates evidencing compliance with this paragraph 4.01(h)
shall be delivered to Bank prior to the Initial Advance Date and
from time to time thereafter upon the Bank's request.
(h) Debts and Taxes and Liabilities. Each Borrower shall
pay and discharge (i) all of its indebtedness and obligations in
accordance with their terms and before they shall become in
default, (ii) all taxes, assessments and governmental charges or
levies imposed upon it or upon its income and profits or against
its properties, prior to the date on which penalties attach
thereto, and (iii) all lawful claims which, if unpaid, might
become a lien or charge upon any of its properties; provided,
however, that the Borrowers shall not be required to pay any such
indebtedness, obligation, tax, assessment, charge, levy or claim
which is being contested in good faith by appropriate and lawful
proceedings diligently prosecuted and for which adequate reserves
(with respect to any material claims) have been set aside on
their books. Each Borrower shall also set aside and/or pay as
and when due all monies required to be set aside and/or paid by
any federal, state or local statute or agency in regard to
F.I.C.A., withholding, sales or excise or other similar taxes.
(i) Notification of Change of Name or Business Location.
The Borrowers shall notify the Bank of each change in the name of
the Borrowers and of each change of the location of the Principal
Place of Business and the office where the records of the
Borrowers are kept, and in such case, shall execute such
documents as the Bank may reasonably request to reflect said
change of name or change of location, as the case may be;
provided, however, the Principal Place of Business of the
Borrowers and the office where the records of the Borrowers are
kept may not be kept out of or removed from Polk County, Florida
without prior written notice to the Bank.
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(j) Notice of Adoption of Plan. As soon as possible and in
any event within thirty (30) days after either Borrower or any
Related Entity adopts a new Plan, the Borrowers or such Related
Entity shall notify the Bank of the adoption of the new Plan.
Adoption of a new Plan shall include the adoption of the new Plan
by either Borrower or such Related Entity as well as inclusion of
employees of either Borrower or such Related Entity under the
Plan of another corporation.
(k) Notice of Plan Events Termination and Litigation. As
soon as possible and in any event within thirty (30) days after
the Borrowers know or have reason to know that any Reportable
Event or a Prohibited Transaction with respect to any Plan has
occurred or that the Pension Benefit Guaranty Corporation or
either Borrower or any Related Entity has instituted or will
institute proceedings under ERISA to terminate a Plan, or a
partial termination of a Plan has or is alleged to have occurred,
or any litigation regarding a Plan or naming the trustee of a
Plan or either Borrower or any Related Entity with respect to a
Plan is threatened or instituted, the Borrowers will provide to
the Bank copies of the written statement of the chief financial
officer of the Borrowers setting forth details of such Reportable
Event, Prohibited Transaction, termination proceeding, partial
termination or litigation and the action being or proposed to be
taken with respect thereto, together with copies of the notice of
such Reportable Event or any other notices, applications or forms
submitted to the Pension Benefit Guaranty Corporation, Internal
Revenue Service or the United States Department of Labor, and
copies of any notices or correspondence received from the Pension
Benefit Guaranty Corporation, Internal Revenue Service or the
United States Department of Labor, and copies of any pleadings,
notices or other documents relating to such litigation.
(l) Plan Annual Reports. Promptly after the filing thereof
with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation, the Borrowers will provide to the Bank copies of
each annual report and annual premium filing form which is filed
with respect to each Plan for each plan year, including (i) a
statement of assets and liabilities of such Plan as of the end of
such plan year and statements of changes in fund balance and in
financial position, or a statement of changes in net assets
available for plan benefits, for such plan year, certified by the
trustee of the Plan or the independent certified public
accountants for such Plan and (ii) if required by law or
applicable regulations, an actuarial statement of such Plan
applicable to such plan year, certified by the actuary for the
Plan.
(m) Further Assurances; Additional Collateral Documents.
The Borrowers will, at their expense, execute, acknowledge and
deliver and cause to be executed, acknowledged and delivered, to
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the Bank all such instruments, including, without limitation,
financing statements, security agreements, assumptions and
continuation statements, deliver to the Bank all such legal
opinions, and take all such other action as the Bank may from
time to time request for the purpose of further assuring to the
Bank the security for the Obligations provided for, or intended
to be provided for, in this Agreement and the other Loan
Documents and to confirm the Obligations. Further, to the extent
either Borrower acquires from time to time any additional
property within the definition of the term Collateral, such
Borrower shall immediately execute and deliver to the Bank such
documents as are necessary to grant the Bank a valid and first
priority lien or security interest in such property.
(n) Subsidiaries. The Borrower shall give the Bank prompt
written notice of the organization of a Subsidiary, as well as
such other information in respect thereof as the Bank may
reasonably request.
(o) Use of Proceeds. The proceeds of the Loan shall be
used for general working capital purposes of the Borrower.
(p) Subordination of Loan; Etc. All loans or fees owed to
Affiliates of the Borrowers shall, at all times, be subordinate
to the Loan and the Borrowers shall cause its Affiliates from
time to time, to execute and deliver to the Bank subordination
agreements in form and content satisfactory to the Bank;
provided, however, so long as no Default exists or has occurred,
the Borrowers may pay (but not prepay) current principal and
interest on such loans to such Affiliates.
(q) Current Ratio. At all times during the term of this
Agreement, the Borrowers' Current Ratio shall equal or exceed
1.5:1.0.
(r) Cash Flow Before Debt Service to Debt Service Ratio.
As at the end of each fiscal year of the Borrowers during the
term of this Agreement, the ratio of the Borrowers' Cash Flow
Before Debt Service to its Debt Service shall be 1.25:1,
determined on a consolidated basis.
(s) Debt to Net Worth Ratio. At all times during the term
of this Agreement, the ratio of Borrowers' Total Liabilities to
Net Worth shall not exceed 1:1, determined on a consolidated
basis.
(t) Minimum Net Worth. At all times during the term of
this Agreement, the Net Worth of the Borrowers shall equal or
exceed $82,000,000.00.
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SECTION 4.02 Negative Covenants. Each Borrower covenants,
for so long as any of the principal amount of or interest on the
Note is outstanding and unpaid or any duty or obligation of
either Borrower or the Bank hereunder or under any of the other
Obligations remains unpaid or unperformed, as follows:
(a) Other Agreements. Neither Borrower will enter into any
arrangements, contractual or otherwise, which would materially
and adversely affect its duties or the rights of the Bank under
the Loan Documents or which is inconsistent with or limits or
abrogates the Loan Documents.
(b) Sale of Assets. Neither Borrower will sell, lease,
assign, transfer or otherwise dispose of all or a substantial
(being defined as 25% or more) part of its assets or properties,
tangible or intangible, to any Person without the prior written
consent of the Bank except for the sale of Inventory and Farm
Products in the ordinary course of business.
(c) Merger; Consolidation; Dissolution; Etc. Neither
Borrower will consolidate with or merge into any other
corporation, or permit another corporation to merge into it
(unless, in the case of a merger or consolidation involving
either Borrower, a Borrower is the surviving corporation), or
dissolve or take or omit to take any action which would result in
its dissolution, or acquire all or substantially all the
properties or assets of any other Person if the value of such
assets or the nature of such assets is material to the Borrowers'
financial condition, or enter into any arrangement, directly or
indirectly, with any Person whereby either Borrower shall sell or
transfer any property, real or personal, whether now owned or
hereafter acquired, and thereafter rent or lease such property or
other property which such Borrower intends to use for
substantially the same purpose or purposes as the property being
sold or transferred without the prior written consent of the
Bank.
(d) Sale of Collateral; Liens on Collateral. Neither
Borrower will sell, assign or discount any of the Collateral with
or without recourse, except for the collection or disposition of
Accounts or the sale of Inventory or Farm Products in the
ordinary course of business; or borrow from anyone on the
security of or create, incur or suffer to exist any Lien on any
of the Collateral or permit any Financing Statement (other than
the Bank's Financing Statement) to be on file with respect
thereto.
(e) Plan Liabilities. Neither Borrower nor any Related
Entity will permit the aggregate present value of accrued
benefits of any Plan, computed in accordance with actuarial
principles and assumptions applied on a uniform and consistent
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basis by an enrolled actuary of recognized standing acceptable to
the Bank, to exceed the aggregate value of assets of the Plans,
computed on a fair market value basis, or permit the aggregate
present value of vested benefits of the Plans, computed in
accordance with actuarial principles and assumptions applied on a
uniform and consistent basis by an enrolled actuary of recognized
standing acceptable to the Bank, to exceed the aggregate value of
assets of the Plans, computed on a fair market value basis.
(f) Fiscal Year. Neither Borrower will change its fiscal
year from a year ending September 30 without reasonable notice to
the Bank.
(g) Changes in Business. The primary business of each of
the Borrowers will remain the same as the business presently
conducted by it on the date of this Agreement.
(h) Prohibition Against Change in Majority Ownership:
(i) At all times during the term of this Agreement,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Inc. and/or its Affiliates shall (i) own more
than fifty percent (50%) of the issued and outstanding stock of
Orange-Co, Inc. and (ii) possess the power to direct or cause the
direction of the management and policies of Orange-Co, Inc., and
(ii) At all times during the term of this Agreement,
Orange-Co of Florida, Inc. shall be an Affiliate of Orange-Co,
Inc.
ARTICLE FIVE
CONDITIONS OF LENDING
The obligations of the Bank to lend hereunder and advance any
monies under the Note and to make any Advance under Section 2.04
of this Agreement from time to time are subject to the following
conditions precedent:
SECTION 5.01 Representations and Warranties. The
representations and warranties set forth in the Loan Documents
are true and correct on and as of the date hereof, and on the
date of each Advance hereunder.
SECTION 5.02 No Default. On the date hereof and on the date
of each Advance, the Borrowers shall be in compliance with all
the terms and provisions set forth in the Loan Documents on their
part to be observed or performed, and no Event of Default or
Default, shall have occurred and be continuing at such time.
SECTION 5.03 Additional Working Capital Note. To the extent
the principal amount then outstanding under the Loan together
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with the Advance requested would exceed the face amount of the
Working Capital Note then outstanding (which collectively
includes all notes executed by the Borrowers in favor of the Bank
to evidence the Working Capital Loan), the Borrowers agree to
then execute and deliver to the Bank the additional note or notes
of the Borrowers in such face amount as is necessary so that the
total principal amount outstanding on the Working Capital Loan
after the making of said Advance shall not exceed the face amount
of the Working Capital Note (which collectively includes all
notes executed by the Borrowers in favor of the Bank concerning
the Working Capital Loan and will include the note or notes
described in this Section). At the time of the execution of said
additional note or notes, the Borrowers shall pay to the Bank all
documentary and other taxes required under applicable law.
SECTION 5.04 Officer's Certificate. Substantially
simultaneously with the execution hereof, and on each quarterly
anniversary date hereunder and on such other dates as the Bank
may request, the Borrowers shall deliver to the Bank an Officer's
Certificate, dated as of the date given, confirming compliance
with all of the conditions of this Agreement. Any request for an
Advance under Section 2.04 shall be deemed to be the certificate
hereunder and said request shall constitute a certification as to
the matters set forth in this Section 5.04.
SECTION 5.05 Opinion of Borrowers' Counsel. Prior to the
initial Advance, the Bank shall have received from counsel for
the Borrowers, a favorable opinion in form acceptable to the
Bank.
SECTION 5.06 Loan Documents. The Borrowers shall have
delivered or caused to be delivered to the Bank all the Loan
Documents, in form and substance satisfactory to the Bank, as the
Bank may request and all of the Loan Documents are in full force
and effect.
SECTION 5.07 Supporting Documents. On or prior to the date
hereof, the Bank shall have received the following supporting
documents, all of which shall be satisfactory in form and
substance to the Bank:
(a) a certificate or certificates, dated as of the date
hereof, of (i) the Secretary or any Assistant Secretary of each
Borrower certifying (A) that attached thereto is a true and
correct copy of certain resolutions adopted by the Board of
Directors of the Borrower authorizing the execution, delivery and
performance of the Loan Documents and the performance of the
obligations of the Borrower and the borrowings thereunder, which
resolutions have not been altered or amended in any respect, and
remain in full force and effect at all times since their
adoption; (B) that attached thereto is a true and correct copy of
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the Certificate of Incorporation of the Borrower, and that such
Certificate of Incorporation has not been altered or amended, and
no other charter documents have been filed, since the date of the
filing of the last amendment thereto or other charter document as
indicated on the certificate of the Secretary of State of the
State of Florida or other appropriate public official in any
other state of incorporation attached thereto: (C) that attached
thereto is a true and correct copy of the Bylaws of the Borrower
and that such Bylaws are in full force and effect and no
amendment thereto is pending which would in any way affect the
ability of the Borrower to enter into and perform the Obligations
contemplated hereby; and (D) the incumbency and signatures of the
officers of the Borrower signing the Loan Documents and any
report, certificate, letter or other instrument or document
furnished by the Borrower in connection therewith, and (ii)
another authorized officer of the Borrower certifying the
incumbency and signature of the Secretary or Assistant Secretary
of the Borrower; and
(b) a certificate or certificates of the Florida Secretary
of State or other appropriate public official in any other state
of incorporation, dated as of a recent date, as to the good
standing of the Borrowers.
SECTION 5.08 Loan Permitted by Applicable Laws. The Loan
from the Bank to the Borrowers on the terms and conditions herein
provided (including the use of the proceeds of the Loan by the
Borrowers) shall not violate any applicable law or governmental
regulation (including, without limitation, Regulations G, T and X
of the Board of Governors of the Federal Reserve System) and
shall not subject the Bank to any tax, penalty, liability or
other onerous condition under or pursuant to any applicable law
or governmental regulation, and the Bank shall have received such
certificates or other evidence as it may request to establish
compliance with this condition.
SECTION 5.09 Proceedings. All corporate and other
proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incident
thereto shall be satisfactory in substance and form to the Bank,
and the Bank shall have received all such counterpart originals
or certified or other copies of such documents as the Bank may
reasonably request.
SECTION 5.10 Subsequent Opinions. If, at the time of the
making of any Subsequent Advance, the Bank so requires as a
condition precedent to the making of any such Subsequent Advance,
the Bank shall have received from counsel for the Borrowers a
favorable opinion in form and substance satisfactory to the Bank
and covering such matters incident to such Subsequent Advance and
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the transactions contemplated by this Agreement as the Bank shall
reasonably specify.
ARTICLE SIX
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. The following each and all
are Events of Default hereunder:
(a) Monetary Default. If a default shall occur in any
payment of the principal of or interest on the Loan when and as
the same shall become due and payable, whether on demand, at
maturity, by acceleration or otherwise; or
(b) Non-Monetary Default. If either Borrower shall default
in the performance of or compliance with any term or covenant
contained in one or more of the Loan Documents other than a term
or covenant a default in the performance of which or non
compliance with which is elsewhere specifically dealt with under
this Article Six; or
(c) Third Party Default. If either Borrower shall default
in the performance of any agreement with any Person other than
the Bank with respect to any Liabilities of such Borrower if the
effect of such default is to accelerate the maturity of such
liabilities or at maturity (giving effect to any applicable grace
periods) such liabilities shall not be paid as and when due and
payable unless such default is being contested in good faith by
such Borrower; or
(d) False Representation. If any representation or
warranty made in writing by or on behalf of either Borrower or in
any other Loan Document shall prove to have been false or
incorrect in any material respect on the date as of which made or
reaffirmed; or
(e) Bankruptcy or Insolvency. If either Borrower shall
admit in writing its inability, or be generally unable, to pay
its debts as they become due or shall make an assignment for the
benefit of creditors, file a petition in bankruptcy, petition or
apply to any tribunal for the appointment of a custodian,
receiver or trustee for such Borrower or a substantial part of
its assets, or shall commence any proceeding under any
bankruptcy, reorganization, arrangement, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or if there shall have been filed any such
petition or application, or any such proceeding shall have been
commenced against either Borrower, in which an order for relief
is entered or which remains undismissed for a period of sixty
(60) days or more, or either Borrower by any act or omission
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shall indicate its consent to, approval of or acquiescence in any
such petition, application, or proceeding or order for relief or
the appointment of a custodian, receiver or any trustee for such
Borrower or any substantial part of any of its properties, or
shall suffer any such custodianship, receivership or trusteeship
to continue undischarged for a period of sixty (60) days or more;
or
(f) Default Under Loan Documents. If a Default occurs under
any one or more of the Loan Documents; or
(g) Dissolution. If any order, judgment, or decree is
entered in any proceedings against either Borrower decreeing the
dissolution of such Borrower and such order, judgment, or decree
remains unstayed and in effect for more than sixty (60) days; or
(h) Fraudulent Conveyance. If either Borrower shall have
concealed, removed, or permitted to be concealed or removed, any
part of its properties, with intent to hinder, delay or defraud
its creditors or any of them, or made or suffered a transfer of
any of its properties which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law, or shall have
made any transfer of its properties to or for the benefit of a
creditor at a time when other creditors similarly situated have
not been paid, or shall have suffered or permitted, while
insolvent, any creditor to obtain a lien upon any of its
properties through legal proceedings or distraint which is not
vacated within thirty (30) days from the date thereof; or
(i) Final Judgment. If a final judgment for the payment of
money in excess of an aggregate of $250,000.00 shall be rendered
against either Borrower, and the same shall remain undischarged
for a period of thirty (30) consecutive days during which
execution shall not be effectively stayed; or
(j) Reportable Event. If a Reportable Event shall have
occurred in connection with any Plan maintained by either
Borrower or any Related Entity.
ARTICLE SEVEN
RIGHTS UPON DEFAULT
Upon the occurrence and its continuing of any Event of
Default, the Bank shall have and may exercise any or all of the
rights set forth herein; provided, however, the Bank shall be
under no duty or obligation to do so:
SECTION 7.01 Acceleration. To declare the indebtedness
evidenced by the Note and all other Obligations to be forthwith
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due and payable, whereupon the Note and all other Obligations
shall become forthwith due and payable, both as to principal and
interest, without presentment, demand, protest or any other
notice or grace period of any kind, all of which are hereby
expressly waived, anything contained herein or in the Note or in
such other Obligations to the contrary notwithstanding and, upon
such acceleration, the unpaid principal balance and accrued
interest upon the Note shall from and after such date of
acceleration bear interest at the Default Rate.
SECTION 7.02 Right of Setoff. To exercise its right of
setoff as permitted under Section 2.07.
SECTION 7.03 Other Rights. To exercise such other rights as
may be permitted under any of the Loan Documents.
SECTION 7.04 Uniform Commercial Code. To exercise from time
to time any and all rights and remedies of a secured creditor
under the UCC as in effect from time to time in the State of
Florida and any and all rights and remedies available to it under
any other applicable law.
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01 No Waiver; Cumulative Remedies. No failure or
delay on the part of the Bank in exercising any right, power or
remedy hereunder, or under the Note or the other Loan Documents
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other
right, power or remedy hereunder or thereunder. The remedies
herein and therein provided are cumulative and not exclusive of
any remedies provided by law or in equity.
SECTION 8.02 Amendments; Etc. No amendment, modification,
termination or waiver of any provision of this Agreement, the
Note or the other Loan Documents, nor consent to any departure by
either Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Bank, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 8.03 Addresses for Notices; Etc. All notices,
requests, demands and other communications provided for hereunder
shall be in writing (including telex or telegraphic
communications) and shall be sufficient if mailed, telexed or
telegraphed or delivered to the applicable party at the address
indicated below:
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If to the Borrowers: Orange-Co, Inc. and
Orange-Co of Florida, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President and
Chief Financial Officer
If to the Bank: Sun Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party
complying as to the delivery with the terms of this Section.
Except as otherwise expressly provided in this Agreement, all
such notices, requests, demands and other communications shall,
when mailed, telexed or telegraphed, be effective when deposited
in the mails (postage paid), sent over a telex owned or operated
by a party hereto with an answerback response set forth on the
sender's copy of the document or delivered to the Borrower
addressed as aforesaid or delivered to the other party and at the
address set forth above.
SECTION 8.04 Applicable Law. This Agreement, and each of
the Loan Documents and transactions contemplated herein (unless
specifically stipulated to the contrary in such document) shall
be governed by and interpreted in accordance with the laws of the
State of Florida.
SECTION 8.05 Survival of Representations and Warranties.
All representations, warranties, covenants and agreements
contained herein or made in writing by the Borrowers in
connection herewith shall survive the execution and delivery of
this Agreement, the Note and the other Loan Documents and be true
and correct during the term of the Loan.
SECTION 8.06 Time of the Essence. Time is of the essence of
this Agreement, the Note and the other Loan Documents.
SECTION 8.07 Headings. The headings in this Agreement are
intended to be for convenience of reference only, and shall not
define or limit the scope, extent or intent or otherwise affect
the meaning of any portion hereof.
SECTION 8.08 Severability. In case any one or more of the
provisions contained in this Agreement, the Note or the other
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Loan Documents shall for any reason be held to be invalid,
illegal or unenforceable in any respect, the same shall not
affect any other provision of this Agreement, the Note or the
other Loan Documents, but this Agreement, the Note and the other
Loan Documents shall be construed as if such invalid or illegal
or unenforceable provision had never been contained therein.
Provided, however, in the event said matter would adversely
affect the rights of the Bank under any or all of the Loan
Documents, the same shall be an Event of Default.
SECTION 8.09 Counterparts. This Agreement may be executed
in any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
SECTION 8.10 Conflict. In the event any conflict arises
between the terms of this Agreement and the terms of any other
Loan Document, the Bank shall have the option of selecting which
conditions shall govern the loan relationship evidence by this
Agreement and, if the Bank does not so indicate, the terms of
this Agreement shall govern in all instances of such conflict.
SECTION 8.11 Term. The term of this Agreement shall be for
such period of time until the Loan and the Note have been repaid
in full, and all of the other Obligations have been paid to the
Bank in full.
SECTION 8.12 Expenses. The Borrowers agree, jointly and
severally, whether or not the transactions hereby contemplated
shall be consummated, to pay, and save the Bank harmless against
liability for the payment of, all out-of-pocket expenses arising
in connection with this transaction, all taxes, together in each
case with interest and penalties, if any, which may be payable in
respect of the execution, delivery and performance of this
Agreement or the execution, delivery, and performance of the Note
issued under or pursuant to this Agreement (excepting only any
tax on or measured by net income of the Bank determined
substantially in the same manner, other than the rate of tax, as
net income is presently determined under the IRS Code), the
reasonable legal fees and expenses (whether incurred at trial, in
any bankruptcy or appellate proceeding or otherwise) of counsel
to the Bank in connection with negotiation, preparation and
enforcement of this Agreement, the Note, the Security Agreements
or any of the other Loan Documents.
SECTION 8.13 Successors and Assigns. All covenants and
agreements in this Agreement contained by or on behalf of either
of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether
so expressed or not; provided, however, this clause shall not by
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itself authorize any delegation of duties by the Borrowers or any
other assignment which may be prohibited by the terms and
conditions of this Agreement.
SECTION 8.14 No Third Party Beneficiaries. The parties
intend that this Agreement is solely for their benefit and no
person not a party hereto shall have any rights or privileges
under this Agreement whatsoever either as the third party
beneficiary or otherwise.
SECTION 8.15. WAIVER OF JURY TRIAL. SUN BANK, NATIONAL
ASSOCIATION AND EACH OF THE BORROWERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING
OUT OF, UNDER OR IN CONJUNCTION WITH THIS AGREEMENT, AND ANY
OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUN
BANK, NATIONAL ASSOCIATION, MAKING THE LOAN.
SECTION 8.16 Entire Agreement. Except as otherwise
expressly provided, this Agreement and the other Loan Documents
embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings
relating to the subject matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed, sealed and delivered, as
applicable, by their duly authorized officers on the day and year
first above written.
BORROWERS:
ORANGE-CO, INC., a Florida corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Vice President
ATTEST:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
(CORPORATE SEAL)
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ORANGE-CO OF FLORIDA, INC., a Florida corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Vice President
ATTEST:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secrerary
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
(CORPORATE SEAL)
BANK:
SUN BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
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