EXHIBIT 10-32
EIGHTH AMENDMENT TO LOAN AGREEMENT
THIS EIGHTH AMENDMENT TO LOAN AGREEMENT dated as of March 8,
1999, by and between:
ORANGE-CO, INC., a Florida corporation and
ORANGE-CO OF FLORIDA, INC., a Florida
corporation, 0000 Xxxxxxx 00 Xxxxx, Xxxxxx,
Xxxxxxx 00000 (hereinafter collectively
referred to as the "Borrowers");
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION, a national banking association,
000 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxx Xxx
0000, Xxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Bank").
W I T N E S S E T H:
WHEREAS, pursuant to the Loan Agreement, dated June 16,
1993, as amended, by and among the Bank and the Borrowers, the
Bank agreed to extend to the Borrowers a working capital line of
credit loan in the maximum principal amount of $45,000,000.00
(the "Working Capital Loan") and a revolving line of credit loan
in the maximum principal amount of $10,000,000.00 (the "Revolving
Loan"); and
WHEREAS, the Borrowers have requested the Bank to increase
the commitment amount under the Working Capital Loan from
$45,000,000.00 to $50,000,000.00; and
WHEREAS, the Bank has agreed to the foregoing subject to the
terms and conditions hereof and the other Loan Documents.
NOW, THEREFORE, for and in consideration of the above
premises, and the mutual covenants and agreements contained
herein, the Borrowers and the Bank do hereby agree as follows:
1. Amendments to Loan Agreement. The Loan Agreement is
hereby amended as follows:
(a) The definition of "Working Capital Loan" is hereby
deleted and, in lieu thereof, there is substituted the following:
"Working Capital Loan" shall mean the loan or
loans up to but not exceeding the principal amount
of $50,000,000.00 made to the Borrowers
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by the Bank pursuant to and in accordance with the terms
of this Agreement."
(b) Section 2.01 of the Loan Agreement is hereby
deleted and, in lieu thereof, there is substituted the following:
"SECTION 2.01. The Loans. The Bank agrees from
time to time during the applicable 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 maximum principal
amount of $10,000,000.00 with respect to the
Revolving Loan and up to the lesser of (i)
$50,000,000.00 or (ii) the amount of the Borrowing
Base with respect to the Working Capital Loan.
During the Revolving Period, the Borrowers shall
be entitled to receive the entire proceeds of the
Loans in one or more Advances pursuant to Section
2.02 hereof, except as otherwise specifically set
forth in this Agreement. Advances under the
Revolving Loan and the Working Capital Loan shall
be evidenced by the Revolving Note and the Working
Capital Note, respectively, 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 and Revolving Loan may
revolve during the Revolving Period; accordingly,
during the Revolving Period, the Borrowers may
borrow up to the maximum principal amount of said
Working Capital Loan and Revolving Loan, repay all
or any portion of such principal amount of said
Loans, and reborrow up to such maximum principal
amount, subject to the terms and conditions set
forth herein. If at any time the principal amount
outstanding under the Working Capital Loan exceeds
the amount of the Borrowing Base, the Borrowers
shall immediately reduce the excess principal
balance of the Working Capital Loan.
(c) Section 4.01(a) of the Loan Agreement is hereby
deleted and, in lieu thereof, there is substituted the following:
"(a) Accounting; Financial Statement; 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
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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;
(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) Simultaneously with the delivery of each
set of annual and quarterly financial
statements prior to April 1, 1999, a
statement of the Borrower's chief executive
officer, chief financial/accounting officer
or chief technology officer to the effect
that nothing has come to his/her attention to
cause him/her to believe that the Y2K Plan
milestones have not been met in a manner such
that the Borrower's and its Subsidiaries'
hardware and software systems will not be
Year 2000 Compliant and Ready on or before
March 31, 1999.
(vi) 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
statement 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
certificate 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
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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."
(d) Article Four of the Loan Agreement is hereby
amended by adding Section 4.01(t) as follows:
"(t) Year 2000 Compliance. Each Borrower has
developed a comprehensive working plan (the "Y2K
Plan") to insure that each Borrower's and each
Subsidiary's software and hardware systems which
impact or affect in any material way the business
operations of either Borrower and their
Subsidiaries will be Year 2000 Compliant and Ready
(defined below) by no later than March 31, 1999.
Upon the request of the Bank, each Borrower will
promptly deliver to the Bank a copy of such Y2K
Plan and a copy of any third party assessment of
the Y2K Plan (if available). Each Borrower and
their Subsidiaries have met all previous Y2K Plan
milestones and will hereafter meet all future Y2K
Plan milestones so that all hardware and software
systems will be Year 2000 Compliant and Ready in
accordance with the Y2K Plan, except where the
failure to meet such milestones has not had, or
would not have, a material adverse effect on the
business, operations, assets or condition
(financial or otherwise) of either Borrower or
their Subsidiaries on a consolidated basis. As
used herein, "Year 2000 Compliant and Ready" means
that each Borrower's and their Subsidiary's
hardware and software systems with respect to the
operation of their business and their general
business plan will: (i) handle date information
involving any and all dates before, during and/or
after January 1, 2000, including accepting input,
providing output and performing date calculations
in whole or in part; (ii) operate accurately
without interruption on and in respect of any and
all dates before, during and/or after January 1,
2000 and without any change in performance, (iii)
respond to and process two digit year input
without creating any ambiguity as to the century,
and (iv) store and provide date input information
without creating any ambiguity as to the century."
2. Capitalized Terms. All capitalized terms contained
herein shall have the meanings assigned to them in the applicable
Loan Documents (as defined in the Loan Agreement) unless the
context herein otherwise dictates or unless different meanings
are specifically assigned to such terms herein.
3. Representations and Warranties. Each of the Borrowers
represents and warrants as follows:
(a) The execution, delivery and performance of this
Eighth Amendment to Loan Agreement and the other loan documents
provided to the Bank in connection therewith has been duly
authorized by all requisite action of the Borrowers; and
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(b) The Loan Documents are valid, legal binding
obligations of the Borrowers enforceable in accordance with their
terms. There are no defenses, counterclaims, rights of setoff or
recoupment thereunder.
4. Miscellaneous. The Borrowers hereby confirm the terms
conditions, representations and warranties of the Loan Agreement.
The Loan Agreement, as amended hereby, shall remain in full force
and effect and this Eighth Amendment to Loan Agreement shall not
be deemed to be a novation.
5. 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.
IN WITNESS WHEREOF, the parties have executed the Eighth
Amendment to Loan Agreement as of the day and year first above
written.
BORROWERS:
ORANGE-CO, INC., a Florida
corporation
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxxx, Vice President
(CORPORATE SEAL)
ORANGE-CO OF FLORIDA, INC., a
Florida corporation
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxxx, Vice President
(CORPORATE SEAL)
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BANK:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx, First Vice President
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