EXHIBIT 10-30
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Loan Agreement") is made and
entered into by and among FARM CREDIT OF SOUTH FLORIDA, ACA, a
federally chartered agricultural credit association, ("South"),
FARM CREDIT OF SOUTHWEST FLORIDA, ACA, a federally chartered
agricultural credit association ("Southwest"), (with South and
Southwest collectively referred to herein as the "Associations")
and Orange-co, Inc. and Orange-co of Florida, Inc., (collectively
referred to herein as the "Borrowers"), with reference to the
following facts:
A. Borrowers have requested the Associations to extend to
Borrowers a syndicated term loan allocated among each of the
Associations in an aggregate amount of $3,500,000.00.
B. The Associations are willing to make the aforesaid
syndicated term loan upon the terms and conditions set forth in
this Agreement, with each of the Associations committing to
extend the following loans:
(i) A loan from South in the amount of $1,500,000.00
(ii) A loan from Southwest in the amount of
$2,000,000.00; and
IN CONSIDERATION OF the foregoing facts and other good and
valuable considerations, the receipt and sufficiency of which is
hereby acknowledged, and of the mutual covenants and agreements
contained in this Loan Agreement, Borrowers and the Associations
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Definitions. For the purpose of this Agreement,
the following terms shall have the respective meanings specified
in this Section 1.1 (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"7.6 Loan" shall mean the $7,600,000.00 loan from Southwest to
Borrowers dated April 19, 1993, as modified and secured by the
First Mortgage.
"5.0 Loan" shall mean the $5,000,000.00 loan from Southwest to
Borrowers dated May 16, 1996, and secured by the First Mortgage.
"7.6 Note" shall mean that certain promissory note from Borrowers
to Southwest dated April 19, 1993, last renewed effective April
1, 1998.
"5.0 Note" shall mean that certain promissory note from Borrowers
to Southwest dated May 16, 1996.
"2.0 Note" shall mean the promissory note dated
June 30, 1998, executed by Borrowers in favor of Southwest,
pursuant to this Agreement.
"1.5 Note" shall mean the promissory note dated
June 30, 1998, executed by Borrowers in favor of South,
pursuant to this Agreement.
"ACA Stock" or "Borrower Stock" shall mean the common voting
stock issued to Orange-co, Inc., in the amount of $1,000.00 in
each Association pursuant to the Act in the total sum of
$2,000.00 par value.
"Act" shall mean the Farm Credit Act of 1971, as amended.
"Affiliate" shall mean any Person directly or indirectly
controlling, controlled by, or under direct or indirect common
control with any Person. 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.
"Agent" shall mean Farm Credit of Southwest Florida, ACA, acting
in its capacity as agent for the Associations pursuant to the
Loan.
"Agreement" shall mean this Loan Agreement as originally executed
by the parties hereto and all permitted amendments and
modifications hereof, including all exhibits and schedules.
"Appraisal" shall mean an appraisal of the Real Property,
prepared by an appraiser approved by the Associations in
accordance with applicable regulations under The Act, and
otherwise in form and substance acceptable to the Associations.
The aforesaid appraisal must show the Real Property to have a
value of no less than $16,200,000.00.
"Associations" shall mean Farm Credit of South Florida, ACA and
Farm Credit of Southwest Florida, ACA.
"Borrowers" shall mean Orange-co, Inc., a Florida corporation and
Orange-co of Florida, Inc., a Florida corporation.
"Business Day" shall mean any day other than a Saturday, Sunday
or day on which the Associations are authorized to close under
applicable laws.
"Collateral" shall mean Borrower Stock, the Personal Property,
other property and money of Borrowers now or hereafter in the
custody, possession or control of Associations, and the Real
Property (including related improvements and fixtures).
"Collateral Sharing Agreement" shall mean that certain Agreement
between South and Southwest dated June 30, 1998, addressing
additional rights of South and Southwest concerning the Agency
relationship and rights in the Collateral.
"Costs" shall mean all costs, expenses, losses and damages
sustained or incurred by the Associations in connection with,
because of, or as a result of any default or any one or more
Events of Default of Borrowers under this Agreement, the Loan
Documents or any of them, or in realizing upon, protecting,
perfecting, defending or enforcing, or any combination thereof,
the rights and remedies of the Associations under this Agreement,
the Loan Documents, or any of them, including, without
limitation, all title premiums, title research costs, appraisal
fees, recording charges, documentary stamp taxes, intangible
taxes, all environmental consultants and engineer's fees and
costs and all appraiser's fees and costs, expert fees, and all
attorney's fees and costs, including paralegal fees in all legal
proceedings, including administrative, trial, appellate, probate,
bankruptcy or any other legal or administrative proceeding,
regardless of whether suit is brought.
"Current Ratio" shall mean current assets divided by current
liabilities, as determined in accordance with GAAP.
"Debt" shall mean as to any Person (i) all obligations of
borrowed money, (ii) obligations evidenced by bonds, debentures,
notes or similar instruments, or upon which interest payments are
customarily made, (iii) all obligations under conditional sale or
other title retention agreements relating to property purchased
by that Person (other than customary reservations or retentions
of title under agreements with suppliers entered into in the
ordinary course of business), (iv) all obligations, including,
without limitation, any items, issued or assumed as the deferred
purchase price of property or services purchased (including trade
debt incurred in the ordinary course of business and regardless
of the due date thereof) which would appear as liabilities on a
balance sheet, (v) all obligations under take-or-pay or similar
agreements or under commodities agreements, (vi) all Debt of
others secured by (or for which the holder of such debt has an
existing right, contingent or otherwise, to be secured by), any
lien on, or payable out of the proceeds of production from,
property owned or acquired by that Person, whether or not the
obligations secured thereby have been assumed, (vii) all guaranty
obligations, (viii) the principal portion of all obligations
under capital leases other than operating leases, (ix) all
obligations in respect of interest rate protection agreements,
foreign currency exchange agreements, commodity purchase or
option agreements or other interest or exchange rate or commodity
price hedging agreements, (x) the maximum amount of all standby
letters of credit issued or banker's acceptance facilities
created and, without duplication, all drafts drawn thereunder (to
the extent unreimbursed), (xi) all preferred stock or other
equity interests issued and required by the terms thereof to be
redeemed, for which mandatory sinking fund payments are due, by a
fixed date, and (xii) other off balance sheet financing
arrangements including, without limitation, synthetic leases,
which, for purposes of this Agreement, shall not include
operating leases.
"Debt to Equity Ratio" shall mean the total liabilities of a
Borrower divided by the net worth of such Borrower, excluding
deferred taxes.
"Default Rate" shall mean an interest rate equal to the Interest
Rate plus two percent.
"Due Date" shall mean the date any payment of principal or
interest is due and payable on the Loan or Syndication Notes.
"Environmental Laws" shall mean any federal, state or local law,
statute, ordinance or regulation pertaining to health, industrial
hygiene or the environmental conditions on, under or about the
Real Property, including, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980
("CERCLA") as amended 42 U.S.C. Section 9601 et seq. and the
Resource Conservation and Recovery Act of 1976 ("RCRA"), 42U.S.C.
Section 6901 et seq.
"Event of Default" shall mean an event of default specified in
Article VII of this Agreement.
"Farm Products" shall mean crops or supplies owned by Borrowers
used or produced in fanning operations at the Real Property
including citrus fruits and other fruits or products of crops
prior to severance from the Real Property for any Borrower
engaged in raising or other farming operations; provided,
however, that Associations' lien shall not extend to the crops
upon their severance from the Real Property until the earlier of:
(i) acquisition of title to the Real Property by foreclosure,
deed in lieu of foreclosure, or other mechanism; (ii) the
appointment of a receiver for the Real Property; (iii) or the
filing of a petition in bankruptcy by or against a Borrower which
becomes an Event of Default.
"Financial Statements" shall mean those financial statements of
Borrowers described in Section 4.6 of this Agreement.
"Financing Statements" shall mean the financing statement or
statements executed and delivered by Borrowers for the purpose of
perfecting the Security Interest under the UCC or any other state
law.
"First Mortgage" shall mean the Real Estate mortgage dated April
19, 1993, recorded in Official Record Book 312, Page 1151, Public
Records of DeSoto County, Florida, as modified in Official Record
Book 364, Page 450, and further modified in Official Records Book
406, Page 409, all of the Public Records of DeSoto County,
Florida, which is a first lien on and security interest in the
Real Property and on the personal property encumbered thereby and
shall remain subject only to those exceptions and matters
satisfactory to the Associations.
"Fiscal Year" shall mean the fiscal year of each Borrower ending
on 9/30 in each calendar year. Subsequent changes of the fiscal
year of a Borrower shall not change the term "fiscal year,"
unless the Associations shall consent in writing to such changes.
"Future Advance" shall mean the advance under the First Mortgage
to secure the 2.0 Note by a mortgage lien against the Real
Property, which such future advance shall be represented by a
future advance receipt to the First Mortgage recorded in the
Public Records of DeSoto County, Florida.
"GAAP" shall mean generally accepted accounting principles
consistently applied.
"Hazardous Substance" shall include, without limitation, the
following: (i) those substances included within the definitions
of "Hazardous Substances," "Hazardous Materials," "Toxic
Substances," or "Solid Waste" in CERCLA, RCRA and the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801 et seq., and
in the regulations promulgated pursuant to said laws; (ii) those
substances defined as "Hazardous Waste" in any Florida Statute
and in the regulations promulgated pursuant to any Florida
Statute; (iii) those substances listed in the United States
Department of Transportation Table (49 CFR Part 172 and
Amendments thereto) or by the Environmental Protection Agency (or
any successor agency) as Hazardous Substances (40 CFR Part 302
and Amendments thereto); (iv) such other substances, materials
and waste which are or become regulated under applicable local,
state or federal law, or which are classified as hazardous or
toxic under federal, state or local laws or regulations; and (v)
any material waste or substance which is (1) petroleum; (2)
asbestos; (3) polychlorinated biphenyl; (4) designated as a
"Hazardous Substance" pursuant to Section 311 of the Clean Water
Act 33 U.S.C. Section 1251 et seq. or listed pursuant to Section
307 of the Clean Water Act (5) flammable explosive; or (6)
radioactive materials.
"Interest Rate" shall mean an annual interest rate equal to 2.25%
above the 5 year yield of U.S. Treasury debt obligations as of
the day of closing on the Loan.
"Loans" shall mean the 7.6 Loan, the 5.0 Loan and this Loan.
"Beneficial Majority Ownership" shall mean ownership, either
directly, or indirectly through any subsidiary, affiliate or
other intermediary, of more than 50% of each class of voting
stock of any corporation.
"Minimum Current Ratio" shall mean the current assets of a
Borrower divided by the current liabilities of a Borrower, as
determined under GAAP.
"Notes" shall mean collectively the 7.6 Note, the 5.0 Note and
the Syndication Notes.
"Obligations" with respect to Borrowers, shall mean, individually
and collectively, all payment and performance duties, obligations
and liabilities of Borrowers to any of the Associations, however
and whenever incurred, acquired or evidenced, whether primary or
secondary, direct or indirect, absolute or contingent, sole or
joint and several, or due to become due, including, without
limitation, all Costs and all such duties, obligations and
liabilities of Borrowers to any of the Associations, under and
pursuant to the Loan Documents and all renewals, modifications or
extensions of any thereof.
"Permitted Exceptions" shall mean only the Schedule B-2
exceptions contained in the final First Mortgage Title Policy and
the final title policy for the Supplemental Mortgage which will
be accepted by the Associations and are listed on Exhibit B
attached hereto and made a part.
"Personal Property" shall mean: all rents, equipment, machinery,
fixtures, pumps, irrigation pipes, wells, and improvements,
whether now on the Real Property or hereafter placed thereon, and
all accessions, parts or replacements now or hereafter affixed to
the Real Property or used in connection therewith; all surface
water management permits and all water use permits; all contract
rights, and leases associated with the Real Property and all Farm
Products.
"Person" shall mean any individual, joint venture, partnership,
firm, corporation, trust, unincorporated organization or other
organizational 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 those places of business in which
any Borrower undertakes any of its business and shall include
each Borrower's Principal Place of Business.
"Potential Default" shall mean an event that but for the lapse
of time or the giving of notice, or both, would constitute an
Event of Default.
"Principal Place of Business" shall mean the principal place of
business and the headquarters of each Borrower at which place all
of its records are kept and which is located at the address set
forth in Section 11.3 of this Agreement.
"Proceeds" shall mean whatever is received upon the sale,
exchange, collection or other disposition of all or any portion
of the Collateral.
"Proportionate Share" shall mean each Association's proportionate
share of the Loan as set forth in Section 2.1, including each
Association's percentage rates of return on repayment of
principal and income, and percentage obligations of each
Association for expenses incurred in the administration of the
Loan or Costs, which have not been recaptured from Borrowers
which each Association is responsible to contribute pursuant to
this Agreement or any other Loan Document. In the event that the
Proportionate Share of the Loan shall change, Associations shall
execute a certificate evidencing the new Proportionate Share.
"Real Property" shall mean that certain real property consisting
of approximately 3,140 acres of citrus grove in the aggregate and
improvements thereon, situated in DeSoto County, Florida, all as
more particularly described in Exhibit A attached hereto and made
a part of.
"Security Agreement" shall mean that agreement dated June 30,
1998 pledging the Personal Property to all the Loans.
"Security Instruments" shall include the First Mortgage and the
Supplemental Mortgage on the Security Agreement and any other
agreements pledging collateral to secure the payment of the
Notes.
"Security Interest" shall mean the security interest granted in
the Collateral to the Associations pursuant to any Security
Instrument pledging the Personal Property.
"Subsidiary" shall mean any corporation more than fifty percent
(50%) of the stock of which is owned or controlled, directly or
indirectly, by any Borrower or its Affiliates.
"Supplemental Mortgage" shall mean that certain mortgage dated
June 30, 1998 given by Orange-co, Inc., to secure the $1.5 Note
with the Real Property.
"Loan Commitment Letter" shall mean the Associations' commitment
to make the Loan to Borrowers and Borrowers' acceptance thereof
on terms and conditions set forth in the letter dated March 11,
1998, from Southwest to Borrowers and all written amendments
thereto, if any.
"Loan Documents" shall mean this Agreement, the Syndication
Notes, the Security Instruments, the Financing Statements, the
Loan Commitment Letter, and all the other documents, agreements,
certificates, schedules, 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.
"Loan" shall mean the $3,500,000.00 loan evidenced by the
Syndication Notes.
"Loan Origination Fee" shall mean the fee paid to Associations
for establishment of this credit facility in the total sum of
$6,500.00.
"Syndication Notes" shall mean the $1.5 Note in favor of South,
and the $2.0 Note in favor of Southwest and executed by
Borrowers.
"Tangible Working Capital" shall mean the Current Assets of a
Borrower minus the Current Liabilities of such Borrower.
"Title Agent" shall mean the law firm of Xxxxxxxx & Xxxxx, P.A.,
as Agent for Chicago Title Insurance Company.
"First Mortgage Title Policy" shall mean the mortgagee title
insurance policy #10-0065-02-003795 written on Chicago Title
Insurance Company insuring the First Mortgage as a first lien on
the Real Property which shall be endorsed upon execution and
recordation of the Future Advance for an additional insured
amount of $2,000,000.00. The title policy shall otherwise only
be adjusted to provide for change in the effective date of the
title policy, and shall contain no additional exceptions to the
title except the Permitted Exceptions. Borrowers shall provide
Agent with a Commitment to Endorse the title policy at or prior
to closing. All "GAP" exceptions shall be eliminated at closing
from the title policy, as endorsed.
"UCC" shall mean the Florida Uniform Commercial Code, Chapters
671 to 680, inclusive.
SECTION 1.2 Accounting Terms. All accounting terms used
herein shall be construed in accordance with GAAP and all
financial data submitted pursuant to this Agreement shall be
prepared in accordance with GAAP. In the event of ambiguities
between this Agreement and GAAP, the more conservative principle
or interpretation shall be used.
SECTION 1.3 Other Definitional Provisions. All of the terms
defined in this Agreement shall have such defined meanings when
used in all the Loan Documents unless the context shall otherwise
require. All terms defined or used in this Agreement in the
singular shall have comparable meanings when used in the plural,
and vice versa. Terms defined in, or by reference to, the UCC,
including Chapter 679 of the Florida Statutes, to the extent not
otherwise defined herein shall have the respective meanings given
to them in the UCC, including Chapter 679 of the Florida
Statutes, with the exception of the word "document," unless the
context clearly requires such meaning. The words "hereby",
"hereto", "hereof", "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of the this
Agreement. The use of "to", "until", "on", and words of similar
import in this Agreement, in indicating expiration, shall be
interpreted to include the date mentioned. The neuter genders as
used herein and whenever used shall include the masculine,
feminine and neuter as well. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed
to include the permitted successors and assigns of such party
unless the context shall expressly provide otherwise.
ARTICLE II
AMOUNTS AND TERMS OF THE LOAN
SECTION 2.1 Loan. The Associations agree, upon the terms
and conditions set forth in this Agreement, and in reliance upon
the representations and warranties made under this Agreement, to
make the Loan to Borrowers in an amount up to $3,500,000.00
solely for the purpose of allowing Borrowers to reduce their
existing Indebtedness under loans with third parties. The
Associations shall each make a portion of the Loan as follows:
Association Loan Amount Proportionate
Share
(a) South $1,500,000.00 42.86%
(b) Southwest $2,000,000.00 58.14%
Total Loan $3,500,000.00 100.00%
SECTION 2.2 Interest on the Syndication Notes. The Loan
shall be evidenced by the Syndication Notes and shall be due and
payable in accordance with and as required by Section 2.6,
Borrowers shall not be liable under the Syndication Notes except
with respect to funds actually advanced to Borrowers by the
Associations pursuant to the terms hereof. The Syndication Notes
shall bear interest from the date thereof on the unpaid principal
balance thereof from time to time outstanding at the Interest
Rate. From and after the due date, interest shall accrue on the
unpaid principal balance of the Syndication Notes or on such
defaulted payment, from the due date thereof at the Default Rate.
Such interest shall continue to accrue at the Default Rate until
the date of payment in full of all principal and accrued but
unpaid interest of such defaulted payment, if applicable.
SECTION 2.3 Advance of Loan Proceeds on the Loan. Each
Association shall disburse to Title Agent at the closing of the
transactions set forth herein their Proportionate Share of the
Loan as set forth in Section 2.1 above for disbursement to or for
Borrowers' benefit.
SECTION 2.4 Calculation of Interest. Agent shall be
responsible for calculation of interest due under this Agreement.
Further, Agent shall give prompt notice to Borrowers and the
other Association of the applicable Interest Rate determined by
Agent pursuant to the terms of this Agreement. Interest shall be
calculated on the basis of a year containing 365 or 366 actual
days, as applicable.
SECTION 2.5 Place of Payment. Except for the final
balloon payments on the Syndication Notes, all payments by
Borrowers under the Loan Documents shall be made at the Agent in
Arcadia, Florida, or at such other place as the Agent may direct,
in lawful money of the United States of America and in
immediately available funds. Agent will promptly thereafter
cause to be distributed (i) such payments of principal and
interest in like funds to each Association at its address set
forth in this Agreement, and (ii) other fees payable to each
Association to be applied in accordance with the terms of this
Agreement. The balloon payments due in accordance with Section
2.6 below shall be paid directly to each of the Associations in
accordance with the terms of the respective Note at the offices
of each of the Associations at the addresses set forth in this
Agreement.
SECTION 2.6 Payment of Syndication Notes. Borrowers shall
pay the Syndication Notes together with interest at the Interest
Rate as follows:
(a) Commencing on July 1, 1998 and through June 1, 2003,
each of the Syndication Notes shall require monthly payments of
interest;
(b) The amortization of each Note shall begin on July 1,
1998 based on equal Quarterly payments of principal on a straight
10-year principal amortization and continue to April 1, 2003.
(c) The entire unpaid principal balance of each of the
Syndication Notes plus all accrued interest on each of the
Syndication Notes will be due and payable on July 1, 2003 in a
balloon payment.
SECTION 2.7 Application of Payments. All payments made in
connection with the Loan shall be applied first to Costs, then
accrued interest to the date of payment, and next to the unpaid
principal balance of the Syndication Notes. All payments shall
be made prior to 1:00 p.m. in available funds, and if not so made
shall be credited as of the next Business Day.
SECTION 2.8 Default Rate of Interest. If any installment of
interest or principal is not paid when due and remains unpaid at
the end of thirty (30) calendar days or if any other Event of
Default shall occur and be continuing for thirty (30) days
(without regard to cure periods) after written notice by Agent
thereof, interest on the entire principal balance outstanding
under the Loan shall accrue at the Default Rate, commencing as of
the date the installment was due or the date of occurrence of the
Event of Default, whichever is applicable, and continuing until
such overdue installment is paid or Event of Default is cured.
SECTION 2.9 Prepayment of Principal. No Borrower may prepay
all or part of the principal of the Syndication Notes except as
provided herein. All principal prepayments shall be subject to a
prepayment premium (the "Prepayment Premium") equivalent to the
Associations' loss of yield, if any, on the portion of principal
of the Loan prepaid, as calculated in accordance with the xxxx to
market conventions used by the Associations and hereinafter
described. For purposes of this Agreement, a prepayment shall be
deemed to have occurred if any Borrower pays the Obligations in
full following an acceleration after an Event of Default. All
principal prepayments shall be applied prorata to reduce the
principal installments due under the Syndication Notes in inverse
order of maturity. Prepayment Premium shall mean an amount
determined as follows:
1. There shall first be determined the Proportionate
Amount (the "Proportionate Amount"), which is the ratio of the
principal amount being prepaid to the then total principal amount
outstanding on the Loan.
2. The present discounted value (the "Present Value") of
the Proportionate Amount of all interest and principal payments
which would be paid over the remainder of the term of the Loan
shall then be determined. In determining the Present Value, the
following provisions shall apply:
(a) The amount of scheduled payments of interest
and principal over the remaining term of the Loan shall be
multiplied by the Proportionate Amount to arrive at the Interest
and principal payments to be used to arrive at the Present Value;
(b) The amount and schedule of payments under
clause (a) above shall then be discounted as if no prepayment had
occurred;
(c) The discount rate to be used will be a rate
equal to (x) the then-existing yield on US Treasury Obligations
having a maturity date most closely corresponding to the "Average
Life" of the remaining term of the Loan (regardless of when the
payments of Interest and principal are due), plus (y) 2.25% (i.e.
225 basis points). "Average Life" shall mean the point in time
when one half (1/2) of the then outstanding principal balance of
the Loan will have been repaid.
3. The Prepayment Premium shall be equal to (x) the Present
Value determined under Paragraph 2 above, less (y) the principal
amount being prepaid. Provided however, if the Present Value is
less than the principal amount being prepaid, Borrowers shall not
be entitled to receive a refund.
SECTION 2.10 Collateral and Security Interest. To secure
the payment, observance and performance of the Syndication Notes,
Borrowers shall grant to the Associations mortgage liens and
security interests in and upon the Real Property and Personal
Property in accordance with the terms of the Security
Instruments.
SECTION 2.11 Loan Origination Fee. As consideration for the
Associations making the Loan to Borrowers, Borrowers shall pay to
each Association its Proportionate Share of the Loan Origination
Fee.
SECTION 2.12 Other Fees and Costs. Borrowers shall pay all
expenses, taxes and fees incurred in connection with the
documentation, underwriting and closing of the Loan and this
Agreement, including, but not limited to, the Associations'
attorney's fees, recording fees, lien search fees, title
insurance premiums, appraisal fees, survey costs, and other
reasonable fees and expenses as may be required.
SECTION 2.13 ACA Stock and Right of Setoff. The ACA Stock
and all future allocated surplus or other equities owned in each
of the Associations are subject to the risk of capital impairment
and shall be retired at the sole discretion of each of the
Association's board of directors. The Associations have a
statutory first lien on the ACA Stock as Collateral for the
Syndication Notes as provided under the Act. Ownership of ACA
Stock, and all allocated surplus and other equities will be
evidenced by entries recorded in the books of the Associations.
Orange-co, Inc. shall be designated as the member of each
Association and owner of the ACA Stock. Borrowers hereby
acknowledge that Associations are authorized to exercise their
right of set-off against the ACA Stock, and any allocated surplus
stock, or other equities in the Associations, now or hereafter
owned by any Borrower, upon an Event of Default and as provided
in the Act.
SECTION 2.14 Monies of Borrowers/Associations Right of
Setoff. Borrowers hereby grant to the Associations a right of
setoff with respect to any other amounts held by any of the
Associations in any interest reserve or funds held accounts or
other monies of any Borrower in the possession of any of the
Associations, to secure and as Collateral for, the payment and
performance of the Obligations. The Associations may, at any
time upon the occurrence of an Event of Default, unless the Event
of Default is cured as provided in Article VIII hereof, without
demand or further notice, appropriate and setoff against and
apply the same to the Obligations when and as the Obligations
become due and payable. All such set offs shall be remitted by
Associations to Agent for distribution to the Associations for
each Association's Proportionate Share thereof.
SECTION 2.15 Maximum Legal Interest Rate. 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 be collected by the
Associations hereunder shall not exceed the maximum lawful
interest rate permitted by such law from time to time. The
Associations and Borrowers intend and agree that under no
circumstance shall 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 Associations in excess of that rate, 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
Obligations (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 Borrowers by
the Associations.
ARTICLE III
CONDITIONS TO CLOSING
Subject to the compliance with the terms of this Agreement,
the Associations shall make the Loan to Borrowers in accordance
with the terms hereof. The obligation of each of the
Associations hereunder is expressly conditioned upon Borrowers
executing and delivering, or causing to be executed and
delivered, to Agent the following Loan Documents and photocopies
or originals, as appropriate, of all documents, certifications
and information listed below, all in form and content
satisfactory to the Associations, along with such other
documents, items or instruments as the Associations or their
attorneys, may reasonably require:
SECTION 3.1 The Opinion Letter. An Opinion of counsel of
Borrowers, who must be an attorney-at-law licensed to practice in
the State of Florida, which shall meet the criteria of the
Reports on Standards for Opinion of Florida Legal Counsel for
Business and Real Estate Transactions dated June, 1997 and be
otherwise acceptable to Associations and their counsel and
contain at least the following opinions:
(a) That each Borrower is duly incorporated and validly
existing under Florida law and in good standing and that the
execution and delivery of the Loan Documents and the closing of
the Loan have been duly authorized by all necessary corporate
action on the part of each Borrower.
(b) That each Borrower has the unrestricted right and
capacity to execute and deliver each of the Loan Documents to be
executed and delivered by each Borrower and that no Borrower has
executed any documents of any kind, including any prior loan or
bonded indebtedness documents, which would prohibit the execution
and delivery of the Loan Documents incident to this Agreement.
(c) That each Borrower has all licenses, permits and
approvals from all applicable governmental authorities necessary
to use and to operate such Borrower's business for the specific
purpose contemplated by such Borrower and represented to the
Associations.
(d) The Syndication Notes and all other Loan Documents have
been duty authorized, executed and delivered by each Borrower and
are the legal, binding, valid and enforceable obligations of each
Borrower in accordance with their respective terms, except as the
enforcement of them may be limited by bankruptcy, insolvency,
moratorium and other applicable debtor relief laws.
(e) That to the best of such counsel's knowledge, there are
no undisclosed material legal actions or proceedings involving
pending or threatened against, or with reference to any Borrower
or the Collateral, before any court, quasi judicial or
administrative body or regulatory agency.
(f) That the Loan does not violate in any manner the usury
laws of the State of Florida, and the manner and payment of
interest under the Loan and all charges required to be paid under
the Loan (including any prepaid interest, service charges,
participation payments, reserved interest, additional interest,
loan commitment fees, loan processing fees, broker's fees, and
other charges contemplated, if any) are neither illegal nor
usurious under the laws of the State of Florida.
(g) The execution and delivery of the Loan Documents by
each Borrower does not violate, conflict with, result in a breach
of or default under any applicable statute, regulation, rule,
order or other legal requirement applicable to each such Borrower
(or any of them), or any agreement by which any of their
properties are bound, or result in the creation of any imposition
of any lien, charge or encumbrance upon the assets of any
Borrower other than as contemplated by this Agreement.
(h) All taxes and recording, registration or filing
fees required to be paid to any authority with respect to the
execution, recording, registration or filing of any of the
documents securing the Loan have been duly paid in fall,
including all documentary stamp taxes and intangible taxes,
payable incident to the Syndication Notes, the Future Advance,
and the Supplemental Mortgage.
(i) Such other matters and opinions as the Associations
and/or their counsel may reasonably require.
SECTION 3.2 Corporate Documents. As to each Borrower, a
certificate from the Florida Secretary of State stating that such
corporation is in good standing and that corporate taxes are
current, and a certificate from such corporation stating that (a)
the corporation is in good standing with all license, income, and
franchise taxes paid; (b) no proceeding for the dissolution or
liquidation of any Borrower is in effect; (c) a resolution (which
shall be stated verbatim in the certificate) has been duly
adopted by such corporation's Board of Directors and remains in
full force and effect specifically authorizing such corporation
to borrow under the Loan, and authorizing certain named officers
to execute and deliver documents on behalf of and bind each
corporation; and (d) copies of each corporation's Articles of
Incorporation filed with the Secretary of State and all
amendments thereto, the By-Laws of the corporation currently in
effect, and any shareholders agreements currently or in the
future affecting the control, voting rights, ownership or
transfer of the shares of the stock of the corporation which are
attached to the certificate as true and correct copies.
SECTION 3.3 Additional Documentation. Such other
documentation as the Associations may reasonably require.
SECTION 3.4 Survey. A copy of the most recent surveys and
legal descriptions of the Real Property that any Borrower has in
its possession accompanied by an affidavit of an officer of
Orange-co, Inc., attesting to the absence of change in
boundaries, encroachments and overlaps of the Real Property.
SECTION 3.5 Title Commitments.
(a) A title commitment to endorse the First Mortgage Title
Insurance Policy increasing the coverage by $2,000,000.00 issued
by Chicago Title Insurance Company (the "Title Company") and
including copies of all exceptions to coverage. The policy must
(1) guarantee that the Future Advance to the First Mortgage is
the first lien on the Real Property; (2) name Southwest and its
successors and/or assigns as the insured; (3) name Orange-co,
Inc. as the fee simple title holder to the Real Property; (4)
contain only the Permitted Exceptions; and (5) provide such
affirmative coverage's and endorsements as may be required by the
Associations or the Associations' counsel.
(b) A title commitment to issue a mortgagee title insurance
policy in the principal sum of not less than $1,500,000.00 issued
by the Title Company, agreeing to insure the Supplemental
Mortgage in favor of South, as a valid lien on the Real Property,
subject only to the recording of the First Mortgage and the
Permitted Exceptions and shall show Orange-co, Inc. as the fee
simple title holder to the Real Property. In addition,
commitment shall provide for such affirmative coverage's and
endorsements as may be required by the Associations or the
Associations' counsel. The final mortgagee policy shall be
issued to South within thirty (30) days from the date of closing.
SECTION 3.6 Environmental. Borrowers shall complete an
Environmental Hazards Assessment Form ("ENV-1"). In the event
the completed ENV-1 or the appraiser's report (required under
Section 3.10 hereof) reveals evidence of Hazardous Substances
contamination on the Real Property or threat of such
contamination from adjoining property, the Associations reserve
the right to withdraw their commitment to make the Loan.
SECTION 3.7 Regulatory Compliance. Evidence satisfactory to
the Associations that: (1) all governmental zoning ordinances,
restrictive covenants, comprehensive plan provisions, land
development regulations, concurrency management regulations, and
zoning issues affecting the Real Property have been complied
with; and (2) all water use permits and surface water management
permits are in full force and effect and have been pledged for
the Loan.
SECTION 3.8 Access. Evidence satisfactory to the
Associations which establishes legal ingress and egress from the
Real Property to a publicly dedicated roadway. This access in any
event must be reflected on the surveys provided to the
Associations and must be adequate for the Real Property and its
intended use as determined by the Associations in their
discretion. If the access is by private easement the easement
must be insured under the Title Policies
SECTION 3.9 The Following Policies of Insurance:
(a) Public liability insurance in the minimum amount of
$1,000,000.00.
(b) At all times, if any improvements on the Real Property
are located in a special flood hazard zone, Borrowers shall
obtain and maintain flood insurance in form and substance
acceptable to the Associations, designating the Associations as
an additional loss payee, in an amount equal to the lesser of the
outstanding balance of the Loan or the maximum amount available
and otherwise in form and substance approved by the Associations,
including a standard noncontributing mortgagee clause and a
standard subrogation clause.
(c) Business interruption insurance and insurance covering
such other risks as the Associations may require;
(d) Such other insurance policies with such coverages as
are normally maintained by persons engaged in business similar to
Borrowers.
As to all such policies, the Associations must be named as
mortgagee and loss payee, as applicable, and shall be entitled to
receive thirty (30) days advance written notice of cancellation
or material change. An original policy, a certified true copy of
the policy or a certificate evidencing the policy must be
obtained prior to closing of the Loan. All insurance policy
requirements shall be maintained in good standing during the
entire term of the Loan. All insurance companies furnishing the
coverage must be acceptable to the Associations.
SECTION 3.10 Appraisal. An appraisal of the Real Property
satisfactory to the Associations.
SECTION 3.11 Additional Documentation. The Associations
shall have received such other documentation as the Associations
may reasonably require.
In addition to the above requirements, the obligations of
the Associations to close the Loan and make any Advance under the
Syndication Notes are subject to compliance with the following
additional conditions precedent:
SECTION 3.12 No Default. On the date hereof, 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 Potential Default shall
have occurred and be continuing at such time.
SECTION 3.13 Loan Documents. Borrowers shall have executed
and delivered or caused to be delivered to the Associations, in
fully executed form, all the Loan Documents, in form and
substance satisfactory to the Associations, as the Associations
may request and all of the Loan Documents shall be in full force
and effect.
SECTION 3.14 Payment of closing fees, the loan fees and all
costs of closing shall have been paid.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant to each of the Associations
(which representations and warranties shall survive the execution
and delivery of the Loan Documents) that:
SECTION 4.1 Organization, 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 to own its properties and assets
and to carry on its 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, and (iv) has the
power and authority to execute and deliver, and to perform its
obligations under the Loan Documents.
SECTION 4.2 Authorization of Loan for Borrowers, etc. The
execution, delivery and performance of the Loan Documents by each
Borrower (a) has been duly authorized by all requisite action and
(b) will not (i) violate (A) any provision of law, any
governmental rule or regulation, any order, writ, judgment,
decree, determination or award of any court, arbitrator or other
agency of government, (B) the Articles of Incorporation or Bylaws
of any Borrower or (C) any provision of any indenture, agreement
or other instrument to which any Borrower is a party or by which
it 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 any
Borrower other than as permitted by the terms hereof.
SECTION 4.3 Binding Effect. This Agreement is, and the
Syndication Notes and the other Loan Documents when delivered
hereunder will be legal, valid and binding obligations of each
Borrower, enforceable against each Borrower in accordance with
their respective terms, except (a) as enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of
creditors rights; and (b) as enforceability may be limited or
qualified by general principles of equity, whether raised in a
proceeding at law or equity.
SECTION 4.4 Tax Payments. All federal, state and local tax
returns and reports of each Borrower required to be filed have
been filed, and all taxes, assessments, fees and other
governmental charges upon each Borrower, or upon any of such
Borrower's 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 any such Borrower. The charges, accruals, and
reserves on the books of each Borrower in respect of federal,
state and local taxes for all fiscal periods to date are adequate
and no Borrower knows of any other unpaid assessment for
additional federal, state or local taxes for any such fiscal
period or of any basis therefore.
SECTION 4.5 Agreements.
(a) No 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
business, properties, assets, operations or condition (financial
or otherwise). There are no unrealized losses with respect to
any such agreement, indenture, lease or instrument.
(b) No Borrower is a party to, or otherwise subject to any
provision contained in, any instrument evidencing indebtedness of
such Borrower, any agreement relating thereto or any other
contract or agreement which restricts or otherwise limits the
incurring of the Obligations to be evidenced by the Syndication
Notes.
(c) No Borrower is in default in the performance,
observance or fulfillment of any of the material obligations,
covenants or conditions contained in any material agreement or
instrument to which it is a party.
(d) Each Borrower enjoys lawful, peaceful and undisturbed
possession in all material respects to all permits, licenses,
trade names, trade marks, services marks and patents used or
whose use is contemplated in the operation of its business. Each
Borrower enjoys lawful, peaceful and undisturbed possession in
all material respects under all leases as to which such Borrower
is a lessee and all such leases are valid and subsisting and in
full force and effect.
SECTION 4.6 Financial Statements.
(a) Each Borrower has furnished the Associations with
financial statements year ending September 30, 1997. 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 each such Borrower required to be shown in
accordance with such principles. The balance sheets fairly
present the condition of each Borrower as at the dates thereof,
and the profit and loss and surplus statements fairly present the
results of the operations of each Borrower for the periods
indicated.
(b) Since the date of the Financial Statements, there have
been no material undisclosed adverse changes in the actual or
anticipated assets, liabilities, financial condition, business,
operations, affairs or prospects (financial or otherwise) of any
Borrower from that set forth or reflected in the Financial
Statements, other than changes in the ordinary course of
business, none of which have been, either in any case or in the
aggregate, materially adverse.
SECTION 4.7 Litigation, etc. Except as disclosed in the
Financial Statements, there are no undisclosed actions,
proceedings or investigations pending or, to the knowledge of any
Borrower, threatened, against any Borrower or affecting any
Borrower (or any basis therefor known to any 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 any Borrower or in any
Borrower's properties or assets, or in any material impairment of
the right or ability of any Borrower to carry on its operations
as now conducted or proposed to be conducted, or in any material
liability on the part of any Borrower and none which questions
the validity of this Agreement, the Syndication Notes 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 4.8 Violation of Judicial or Governmental Orders,
Laws, Ordinances or Regulations. No Borrower knows of any
violation nor has any notice of a violation of any court order or
of any law, regulation, ordinance, rule, order, code, or
requirement of any governmental authority having jurisdiction
over any Borrower that may detrimentally affect the business and
operation of any Borrower.
SECTION 4.9 Insurance. Borrowers maintain insurance coverage
on the Collateral naming the Associations as loss payee and
additional insured as its interests may appear.
SECTION 4.10 No Outstanding Debt. No Borrower has any
outstanding debt, except for: (i) the Loan; (ii) liabilities
shown on the Financial Statements; and (iii) other obligations in
the nature of trade payables incurred by Borrowers in their
ordinary course of business.
SECTION 4.11 Priority of Liens and Security Interest. The
Security Interest and liens granted to the Associations in the
Collateral shall be and are a perfected first and second liens in
the Real Property and Personal Property, there are no other liens
or security interests in the Collateral except for liens
expressly permitted or provided in this Agreement, and there will
be no other security interests or other liens upon the Collateral
during the term of the Loan without the prior written consent of
the Associations.
SECTION 4.12 Solvency. After giving effect to the funding of
the Loan, the application of the proceeds thereof as contemplated
by this Agreement and the Loan Documents, and the payment of all
estimated banking, legal, accounting and other fees related
thereto, each Borrower is solvent.
SECTION 4.13 Executive Offices And Location of Records.
Orange-co, Inc.'s Principal Place of Business is located at 0000
X.X. Xxxxxxx 00, Xxxxx, Xxxxxx, XX 00000, and all of its books
and records are and shall be maintained there. Orange-co of
Florida, Inc.'s Principal Place of Business is located at 0000
X.X. Xxxxxxx 00, Xxxxx, Xxxxxx, XX 00000, and all of its books
and records are and shall be maintained there.
SECTION 4.14 Investment Companies Act. No Borrower is an
"investment company" or a company "controlled" by, or an
"affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company" (as each of the quoted terms is
defined or used in the Investment Company Act of 1940, as
amended). The making of the Loan by the Associations, the
application of the proceeds and repayment thereof by Borrowers
and the consummation of the transactions contemplated by this
Agreement will not violate any provision of such act or any rule,
regulation or order issued by the Securities and Exchange
Commission thereunder.
SECTION 4.15 Racketeer Influenced and Corrupt Organizations
Act. No Borrower has ever been and is not now engaged, and will
not engage, directly or indirectly, in any pattern of
"racketeering activity" or in any "collection of any unlawful
debt," as each of the quoted terms or phrases is defined or used
by the Racketeer Influenced and Corrupt Organization(s) Act of
either the United States or the Xxxxx xx Xxxxxxx, Xxxxx 00,
Xxxxxx Xxxxxx Code, Section 1961 et,.seg. and Chapter 895,
Florida Statutes, respectively, as each act now exists or is
hereafter amended (the "RICO Lien Acts"). No Borrowers' real
property, interest or interests of any kind, including beneficial
interest or interests, mortgages and leases, in or on the Real
Property and Personal Property, including money, has ever been,
is now, or is any way reasonably anticipated by any Borrower to
become, subject to the any lien, notice, civil investigative
demand, action, suit or any proceeding pursuant to the RICO Lien
Acts.
SECTION 4.16 Regulatory Compliance. Each Borrower has in
the past complied with and is presently complying in all material
respects with all laws applicable to such Borrower's business.
SECTION 4.17 Real Property. Except for the Permitted
Exceptions, the Real Property is free and clear of all liens and
other adverse claims of any nature, and Orange-co, Inc. has good
and marketable fee simple title to the Real Property. Upon the
execution and delivery of the Loan Documents, including the
Future Advance and Supplemental Mortgage, except for the
Permitted Exceptions, Southwest will have a perfected first
mortgage in the Real Property and South will have a perfected
mortgage lien upon the Real Property. There are no matters
pending against any Borrower or the Real Property that could
result in a change of the status of the title to the Real
Property during the period of time between the effective date of
the title commitments for both the Future Advance to the First
Mortgage and the Supplemental Mortgage, and the recording of the
Future Advance and Supplemental Mortgage (herein the "Gap").
Borrowers covenant that Borrowers will not commit any act or
permit any act to be committed that might result in a change in
the status of the title to the Real Property during the Gap, and
Borrowers shall indemnify the Associations, as well as the Title
Agent and the title insurance underwriter issuing the title
commitments and policies, from all costs and expenses (including
reasonable attorney fees) suffered as a result of a change in the
status of the title to the Real Property during the Gap.
SECTION 4.18 Use of Loan. The proceeds of the Loan shall be
used exclusively for the purposes set forth in Article Two of
this Agreement.
SECTION 4.19 ERISA Compliance. Each Borrower has complied
with and will continue to comply with the Employee Retirement
Income Security Act of 1974, as amended, (ERISA).
SECTION 4.20 Fair Labor Standards Act. Each Borrower has
complied with, and will continue to comply with, the provisions
of the Fair Labor Standards Act of 1938, 29 U.S.C. Section 200,
et seq., as amended from time to time (the "FLSA"), including
specifically, but without limitation, 29 U.S.C. Section 215(a).
This representation and warranty, and each reconfirmation hereof,
shall constitute written assurance from each Borrower, given as
of the date hereof and as of the date of each reconfirmation,
that each Borrower has complied with the requirements of the
FLSA, in general, and 29 U.S.C. Section 215(a)(1) thereof, in
particular.
SECTION 4.21 Communication with Accountants. Each Borrower
authorizes Agent to communicate directly with each Borrower's
independent certified public accountants and authorizes those
accountants to disclose to Agent any and all financial statements
and other information of any kind, including copies of any
management letter or substance of any oral information or
conversation that such accountants may have with respect to any
Borrower's business, financial conditions and other affairs.
Agent shall treat information so obtained as confidential, except
that Borrowers consent to the disclosure of such information to
the Associations.
SECTION 4.22 Hazardous Substances. There are no Hazardous
Substances on or under the Real Property and Borrowers are not
now engaged in any litigation, proceedings or investigations, nor
does any Borrower have any knowledge of any pending or threatened
litigation, proceedings or investigations regarding the presence
of Hazardous Substances on the Real Property which will result in
any material adverse change to the value of the Real Property or
in the financial condition of any Borrower.
SECTION 4.23 Zoning. Ordinances. Similar Laws and
Standards. The Real Property is currently zoned for the uses
intended and complies with all applicable zoning ordinances,
concurrency requirements, regulations and restrictive covenants
affecting the Real Property. Further, the uses of the Real
Property presently comply and will continue to comply with all
governmental laws, regulations, ordinances, rules, orders,
standards and codes and with all hazard insurance underwriters'
standards, without reliance on any variance or other special
exemption or provision.
SECTION 4.24 Utilities. All utility services necessary for
the use and the operation of the Real Property for its intended
purpose, are available at the boundary lines of the Real
Property.
SECTION 4.25 Eminent Domain. No condemnation or eminent
domain proceedings have been commenced or, to the knowledge of
any Borrower, are threatened against the Real Property.
SECTION 4.26 Governmental Permits. All governmental
permits, approvals, consents, and other authorizations required
in connection with the use of the Real Property, including all
surface water management permits and water use permits have been
or will be obtained before the Associations are obligated to
advance proceeds of the Loan to Borrowers, and Borrowers shall at
Agent's request, deliver copies of all such permits to the
Associations on or before the date that the Associations are
obligated to advance proceeds of the Loan to Borrowers.
SECTION 4.27 Access. All of the Real Property has access to
a publicly dedicated road right-of-way.
SECTION 4.28 Usury. The amounts to be received by the
Associations which are or which may be deemed to be interest
under any of the Loan Documents or otherwise in connection with
the transactions described herein constitute lawful interest and
are not usurious or illegal under the laws of the State of
Florida, and no aspect of the transaction contemplated by this
Agreement is or will be usurious.
SECTION 4.29 Borrower Setoffs. No Borrower has, as of the
date hereof, any defenses, counterclaims, or setoffs with respect
to any sums to be advanced under this Agreement or under any
other loan between Borrowers and any of the Associations
SECTION 4.30 Disclosure and No Representation, Warranty or
Document Untrue. To the best of each Borrower's knowledge, no
representation or warranty made by any Borrower contained herein,
the Loan Documents, or in any certificate or other document
furnished or to be furnished by any Borrower pursuant hereto, or
which will be made by any Borrower from time to time in
connection with the Loan Documents (a) contains or will contain
any misrepresentation or untrue statement of fact, or (b) omits
or will omit to state any material fact necessary to make the
statements therein not misleading, unless otherwise disclosed in
writing to the Associations. There is no fact known to any
Borrower which adversely affects, or which might in the future
adversely affect, the business, assets, properties or condition,
financial or otherwise, of any Borrower, except as set forth or
reflected in the Loan Documents or otherwise disclosed in writing
to the Associations.
SECTION 4.31 Continuation and Investigation. Borrowers'
warranties and representations contained in this Agreement are
and shall remain correct and complete until the Loan is paid in
full. All representations, warranties, covenants and agreements
made to or with the Associations by or on behalf of, or at the
request of any Borrower in connection with this Agreement may be
relied upon by the Associations notwithstanding any independent
investigation made by or on behalf of the Associations.
SECTION 4.32 No Subsidiaries. No Borrower has Subsidiaries,
except as set forth on Exhibit "C".
SECTION 4.33 Survival. All of the representations and
warranties set forth in this Article shall survive until all
Obligations are satisfied in full.
ARTICLE V
FINANCIAL COVENANTS OF BORROWERS
Borrowers covenant, for so long as any of the principal
amount of or interest on the Syndication Notes is outstanding and
unpaid or any duty or obligation of Borrowers hereunder or under
any other Obligation remains unpaid or unperformed, as follows:
SECTION 5.1 Financial Records. Borrowers at all times will
keep proper and adequate records and books of account in
accordance with GAAP, in which the full, true and correct entries
will be made of its transactions and which will properly and
correctly reflect all items of income and expense in connection
with the operation of Borrowers' business regardless of whether
such income or expense is realized by any Borrower.
SECTION 5.2 Delivery of Financial Statements. Borrowers
shall deliver or secure the delivery to Agent (and each Borrower
authorizes delivery by Agent to each of the Associations) copies
of each of the following:
(a) As soon as practicable and in any event within fifty
(50) days after the end of each fiscal calendar quarter during
the term of this Agreement, the consolidated balance sheet for
Borrowers as of the end of such period and the related statement
of income for such quarter and cumulative year-to-date, all in
reasonable detail and satisfactory in scope certified by an
authorized financial officer of Orange-co, Inc., prepared in
accordance with GAAP. Copies of Orange-co, Inc.'s 10-Q Reports
filed with the Securities and Exchange Commission may be
delivered to Agent in lieu of the quarterly financial statements
provided for herein provided, however, that an authorized
financial officer of Orange-co, Inc. will provide Agent with a
certification thereof as to the accuracy of such reports;
(b) As soon as practicable and in any event within ninety-
five (95) days after each Fiscal Year end, combined audited
Financial Statements of Borrowers prepared in accordance with
GAAP (consisting of an income statement, balance sheet, changes
in capital position and a reconciliation of net worth, including
all normal and reasonable financial notes and further setting
forth such changes in financial position, in each case, in
comparative form figures for the corresponding period in the
preceding fiscal year) that are certified by and contain an
opinion from certified public accountants of recognized national
standing reasonably acceptable to the Associations, all in
reasonable detail and further certified by an authorized
financial officer of each Borrower as to accuracy of such
reports;
(c) Borrowers will provide Agent with copies of all 10-
K Reports filed with the Security and Exchange Commission within
fifteen (15) days of filing of such reports.
(d) Together with each delivery of those items required in
clauses (a) and (b) above, Borrowers shall deliver to Agent a
certificate executed by the an authorized financial officer of
each Borrower, containing computations indicting compliance with
the financial covenant ratios contained in this Agreement and,
stating that to the best such officer's knowledge, (i) Borrowers
have kept, observed, performed and fulfilled each and every
Agreement binding upon them contained in the Loan Documents, and
is not at the time in default of the keeping, observance,
performance or fulfillment of any of the terms, provisions and
conditions thereof; and (ii) that none of the Events of Default
or Potential Defaults, have occurred, or if they have occurred,
specifying all such defaults or potential defaults of which the
officer may have knowledge.
(e) With reasonable promptness, such other data and
information as from time to time may be reasonably required by
the Associations.
SECTION 5.3 Accounting, Financial Statements of Affiliates
and Subsidiaries. The Subsidiaries and Affiliates will deliver
to Agent (and Borrower authorizes delivery by Agent to each of
the Associations) copies of the following:
(a) With reasonable promptness, such data and information
as from time to time may be reasonably required by the
Associations.
SECTION 5.4 Financial Covenants. Borrowers shall observe the
following financial covenants:
(a) Borrowers agree to maintain, on a consolidated basis, a
minimum Tangible Working Capital of $10,000,000.00.
(b) Borrowers agree to maintain a Current Ratio of not less
than 1.5 to 1.0.
(c) Borrowers agree, on a consolidated basis, not to exceed
a Debt to Equity Ratio of 0.85 to 1.0.
(d) The financial covenants required under this Subsection
shall be measured as of the last day of each fiscal quarter of
Borrowers. The financial covenants of this Subsection shall be
computed without regard to deferred tax balances as set forth in
FASB Standard 109.
SECTION 5.5 Quarterly Certification. Quarterly, Borrowers
shall furnish Agent with a Certificate from an authorized
financial officer of each Borrower that no Borrower is in default
of any covenant or obligation under this Agreement or under any
other loan to which Borrowers, or either of them, are a party, or
in the event a default does exist, Borrowers shall furnish such
information as is required under Section 6.3 of this Agreement.
SECTION 5.6 Changes in Accounting Methods. Neither Borrower
will amend or change its accounting methods or practices, its
depreciation or amortization policy or rates, or its fiscal year
end from that in existence as of the date of the Financial
Statements, except as required to comply with GAAP.
ARTICLE VI
OTHER AFFIRMATIVE COVENANTS OF BORROWER
SECTION 6.1 Inspection. Borrowers will permit Agent or
Agent's designated representative to (i) visit any Place of
Business, (ii) inspect the Collateral, (iii) inspect and make
extracts from Borrowers books and records, and (iv) discuss the
affairs, finances and accounts of any Borrowers with the officers
of Borrowers, all at such reasonable times and as often as may
reasonably be requested.
SECTION 6.2 Maintenance of Legal Existence: Compliance with
Laws. Each Borrower shall at all times preserve and maintain in
full force and effect their respective legal existence, powers,
rights, licenses, permits and franchises in the jurisdiction of
its organization; continue to conduct and operate its business
substantially as conducted and operated during the present and
preceding fiscal year of such Borrower; operate in full
compliance with all applicable laws, statutes, regulations,
certificates of authority and orders in respect of the conduct of
its business; and qualify and remain qualified as a foreign
organization in each jurisdiction in which such qualification is
necessary or appropriate in view of its business and operations.
SECTION 6.3 Notice of Default. Borrowers shall immediately
notify Agent in writing upon the happening, occurrence or
existence of any Event of Default, or Potential Default and shall
provide Agent with such written notice containing a detailed
statement by an authorized financial officer of each Borrower of
all relevant facts and the action being taken or proposed to be
taken by each Borrower with respect thereto.
SECTION 6.4 Maintenance of Properties. Each Borrower shall
maintain or cause to be maintained in good repair, working order
and condition the Collateral and all other properties used or
useful in their respective businesses 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 and
advantageously conducted at all times. No Borrower will do or
permit any act or thing which might impair the value or commit or
permit any 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 any Borrower leases
any of its Places of Business, it shall maintain and keep current
at all times all leases for said places of business and shall
provide Associations with appropriate Landlord waivers for such
leased Place of Business.
SECTION 6.5 Notice of Suit, Proceedings, Adverse Change.
Each Borrower shall promptly give Agent 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 any Borrower or the rights
or other properties of any Borrower or (i) which involves
potential liability of any Borrower in an amount in excess of
$50,000.00, or (ii) which the officers or directors of any
Borrower believe in good faith is likely to materially and
adversely affect the financial condition of such Borrower or to
impair the right or ability of such Borrower to carry on its
businesses as now conducted or to pay the Obligations or perform
its duties under the Loan Documents; (b) of any material adverse
change in the condition (financial or otherwise) of any Borrower;
and (c) of any seizure or levy upon any part of the properties of
any Borrower under any process or by a receiver.
SECTION 6.6 Execution and Delivery of Loan Documents. Each
Borrower shall execute and deliver to the Associations all Loan
Documents to be executed by such Borrower as and when requested
by the Associations.
SECTION 6.7 Debts, Taxes and Liabilities. Each Borrower
shall pay and discharge (i) all of its indebtedness and
obligations in accordance with its terms and before it 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 no Borrower shall 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 pursued and for which adequate
reserves have been set aside on its 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.
SECTION 6.8 Notification of Change of Name or Business
Location. Borrowers shall notify Agent of each change in the
name of any Borrower and of each change of the location of any
Place of Business and the office where the records of any
Borrower are kept, and, in such case, shall execute such
documents as the Associations 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 a Borrower
and the office where the records of Borrower are kept may not be
kept out of or removed from Polk County, Florida, without the
prior written consent of the Associations.
SECTION 6.9 Compliance With Laws. Borrowers will comply
with all laws, regulations, rules, ordinances, statutes, orders
and decrees of any governmental authority or court applicable to
Borrowers.
SECTION 6.10 Copies of All Default Notices. Borrowers shall
promptly provide the Associations with copies of all notices of
defaults or matters which will or become defaults upon the
expiration of applicable grace periods under the SunTrust Loan
Agreement and under any other agreement, contract, or lease,
whether contained in the notice or not which any Borrower
receives from time to time.
SECTION 6.11 Further Assurances. Borrowers will, at the cost
of Borrowers, and without expense to the Associations, promptly
upon the request of the Associations: (a) correct any defect,
error or omission which may be discovered in the contents of any
Loan Documents or in the execution or acknowledgment thereof; (b)
execute, acknowledge, deliver and record or file such other and
further instruments (including, without limitation, mortgages,
deeds or trusts, security agreements, financing statements and
specific assignments of rents or leases) and do such further
acts, in either case as may be necessary, desirable or proper in
the Associations' opinion to carry out more effectively the
purposes of the Loan Documents; to protect and preserve the lien
of the First Mortgage, Supplemental Mortgage and the Security
Interest on the Collateral subject thereto and any property
intended by the terms thereof to be covered thereby, including,
without limitation, any renewals, additions, substitutions or
replacements thereto; or protect the Security Interest of the
Associations and the Collateral against the rights or interest of
third parties. Borrowers hereby appoint Agent as its attorney-in-
fact, coupled with an interest, to take the above actions and to
perform such obligations on behalf of Borrowers, at Borrowers'
sole expense, if any Borrower fails to comply with its
obligations under this paragraph.
SECTION 6.12 After Acquired Property. Without the necessity
of any further act of any Borrower or the Associations, subject
to the limitations set forth in any specific Security Instrument,
the lien of and the Security Interest created in the Collateral
automatically extends to and include:
(a) Any and all renewals, replacements, substitutions,
accessions, proceeds, products or additions of or to the
Collateral, subject to the limitations contained in the
definition of Farm Products.
(b) Any and all monies and other property that from time to
time may either by delivery to the Associations or by any
instrument, be subjected to such lien and Security Interest by
Borrowers or by anyone on behalf of Borrowers, or with the
consent of Borrowers, or which otherwise may come into possession
or otherwise be subject to the control of the Associations
pursuant to the Loan Documents.
SECTION 6.13 Indemnity. Borrowers shall indemnify, defend
and hold harmless the Associations from and against, and
reimburse the Associations for, all claims, demands, liabilities,
losses, damages, judgments, penalties, Costs and expenses,
including, without limitation, attorney's fees and disbursements,
which may be imposed upon, asserted against or incurred or paid
by either the Associations by reason of, on account of or in
connection with any claim or damage occurring in, upon or in the
vicinity of the Collateral through any cause whatsoever, or
asserted against the Associations on account of any act performed
or omitted to be performed under the Loan Documents or on account
of any transaction arising out of or in any way connected with
the Collateral or the Loan Documents, except as a result of the
willful misconduct or gross negligence of the Associations.
SECTION 6.14 Additional Documents. From time to time,
Borrowers shall provide Agent the following additional
assurances:
(a) Preservation of Security. Borrowers shall sign and
deliver to Agent such documents, instruments, assignments and
other writings and do such other acts necessary or desirable to
preserve and protect the Collateral at any time securing or
intended to secure the Syndication Notes, as the Associations may
reasonably require.
(b) Additional Documentation. Borrowers shall furnish
such additional and/or updated copies of the documents required
by Article III above.
SECTION 6.15 Insurance. During the term of this Agreement,
Borrowers shall maintain the insurance coverage required by
Article III hereof.
SECTION 6.16 Application. Each Borrower shall use its best
efforts to collect the maximum amount of insurance proceeds (the
"Insurance Proceeds") payable on account of any act or occurrence
of any kind or nature which results in damage, loss or
destruction to the Real Property ("Casualty") and the maximum
award or payment or compensation payable ("Taking Proceeds") on
account of any action or proceeding which results in a
condemnation or other taking for public or private use of all or
any portion of the Real Property or which relates to injury,
damage, benefit or betterment thereto (a "Taking"). In the case
of a Casualty, the Associations may, at their sole option make
proof of loss to the insurer, if not made promptly by Borrowers.
No Borrower shall settle or otherwise compromise any claim of any
Borrower for Insurance Proceeds or Taking Proceeds without the
Associations' prior written consent in any amount of more than
$20,000.00. Each Borrower hereby assigns, sets over and transfers
to Associations, all Insurance Proceeds and all Taking Proceeds
and authorizes payment of such proceeds to be made directly to
the Agent for distribution to the Associations. The Associations
may, in their sole discretion, apply such proceeds to either of
the following, or any combination thereof: (i) payment of the
Syndication Notes, either in whole or in part, in any order
determined by the Associations in their sole discretion; or (ii)
repair or replacement, in part or entirely, of any part of the
Real Property or the improvements thereon so destroyed, damaged
or taken, in which event the Associations may impose such terms,
conditions and requirements for the disbursements of proceeds for
such purpose as they, in their sole discretion, deem advisable;
provided, however that the Associations shall allow the repair or
replacement of the Real Property so long as the Associations
determine, in their sole discretion, that no Event of Default or
Potential Default exists under the Loan Documents. The
Associations shall not be a trustee with respect to any Insurance
Proceeds or Taking Proceeds and may co-mingle Insurance Proceeds
or Taking Proceeds with its funds without obligation to pay
interest thereon. If the Associations elect to allow any
Borrower to use all or any portion of the proceeds for the
restoration of the Real Property, the Associations will make such
proceeds available to Borrowers upon such terms and conditions as
the Associations deem advisable in the Associations' sole and
exclusive discretion.
SECTION 6.17 Financial Records. Borrowers at all times will
keep proper and adequate records and books of account in
accordance with GAAP in which the full, true and correct entries
will be made of its transactions and which will properly and
correctly reflect all items of income and expense in connection
with the operation of Borrowers' businesses regardless of whether
such income or expense is realized by Borrowers.
SECTION 6.18 Environmental Compliance.
(a) No Borrower has undisclosed knowledge after due
investigation of (i) the presence of any unlawful "Hazardous
Substances" on the Real Property, or (ii) any spills, releases,
discharges or disposal of Hazard Substances that have occurred or
are presently occurring on or onto the Real Property or any
adjacent properties, or (iii) any spills or disposal of Hazardous
Substances that have occurred or are presently occurring off the
Real Property as a result of any construction or operation and
use of the Real Property.
(b) In connection with the operation and use of the Real
Property, each Borrower represents that, as of the date of the
First Mortgage and continuing through the date of the Future
Advance and Supplemental Mortgage, it has no undisclosed
knowledge of any failure to comply with all applicable local,
state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the generation,
recycling, re-use, sale, storage, handling, transport and
disposal of any Hazardous Substances.
(c) Each Borrower represents and warrants to the
Associations that it has duly investigated the present and past
uses of the Real Property and has made due inquiry of the
appropriate governmental agencies and offices having jurisdiction
over the Real Property and the laws regulating the environment,
as to whether the Real Property or any lands in the immediate
vicinity of the Real Property is or has been the site of, storage
of or contamination by any Hazardous Substances.
(d) No Borrower will use, generate, manufacture, produce,
store, release, discharge or dispose of on, under or about the
Real Property or transport to or from the Real Property any
Hazardous Substance or allow any other person or entity to do so,
except those which are used in accordance with applicable
Environmental Laws and with all required permits and approvals
and consistent with legal agricultural activities on the Real
Property. Each Borrower agrees to keep and maintain the Real
Property in compliance with and shall not cause or permit the
Real Property to be in violation of any Environmental Laws; and
(e) Each Borrower will give prompt written notice to the
Associations of the following: (i) any proceeding or inquiry by
any governmental authority (including, without limitation, the
Florida Department of Environmental Protection or any local
health department) with respect to the presence of any Hazardous
Substance on the Real Property or the migration thereof from or
to other lands; (ii) all claims made or threatened by any third
party against any Borrower or the Real Property relating to any
loss or injury resulting from any Hazardous Substance; and (iii)
any Borrower's discovery of any occurrence or condition on any
lands adjoining or in the vicinity of the Real Property that
could cause the Real Property or any part thereof to be subject
to any restrictions on the ownership, occupancy, transferability
or use of the Real Property under any Environmental Laws or any
regulation adopted in accordance therewith, or to be otherwise
subject to any restrictions on the ownership, occupancy,
transferability or use of the Real Property under any
Environmental Laws.
(f) The Associations shall have the right to join and
participate in, as a party if they so elect, any legal
proceedings or actions initiated in connection with any
Environmental Laws and have all their attorney's fees, Costs, and
other expenses in connection therewith paid by Borrowers.
(g) In the event that any investigation, site monitoring,
containment, clean up, removal, restoration or other remedial
work of any kind or nature (the "Remedial Work") is reasonably
necessary or desirable under any applicable local, state or
federal law or regulation, any judicial order, or by any
governmental or non-governmental entity or person because of, or
in connection with, the current or future presence, suspected
presence, release or suspected release of a Hazardous Substance
in or into the air, soil, ground water, surface water or soil
vapor at, on, about, under or within the Real Property (or any
portion thereof) Borrowers shall, within thirty (30) days after
written demand for performance thereof by the Associations (or
such shorter period of time as may be required under any
applicable law, regulation or agreement), commence to perform or
cause to be commenced, and thereafter diligently prosecute to
completion, all such Remedial Work. All Remedial Work shall be
performed by one or more contractors, approved in advance in
writing by the Associations and under the supervision of a
consulting engineer approved in advance in writing by the
Associations. All costs and expenses of such Remedial Work shall
be paid by Borrowers including, without limitation, the charges
of such contractor and/or the consulting engineer and each
Association's reasonable attorney's fees and any other Costs
incurred in connection with monitoring or reviewing such Remedial
Work. In the event that Borrowers shall fail to timely commence
or cause to be commenced or fail to diligently prosecute the
completion of such Remedial Work, the Associations may, but shall
not be required to, cause such Remedial Work to be performed and
all costs and expenses thereof, or incurred in connection
therewith, shall be deemed a Cost and become part of the debt
evidenced by the Syndication Notes and shall be secured by the
First Mortgage and Supplemental Mortgage.
(h) Each Borrower hereby agrees unconditionally, absolutely
and irrevocably to indemnify, defend and hold harmless the
Associations, their affiliates, successors, assigns and the
officers, directors, employees and agents of the Associations,
against and in respect of: (i) any loss, liability, cost, injury,
expense or damage of any and every kind whatsoever (including
without limitation, all Costs), which at any time and from time
to time may be suffered or incurred in connection with any
inquiry, charge, claim, cause of action, demand or lien made or
arising directly or indirectly or in connection with, with
respect to or as a direct or indirect result of the presence on
or under or the escape, seepage, leakage, spillage, discharge,
emission or release from the Real Property into or upon any land,
the atmosphere or any water course, body of water or wetlands of
any Hazardous Substances including, without limitation, any
losses, liabilities, damages, injuries, Costs and expenses
incurred in connection with removal, encapsulation or other
treatment of Hazardous Substances from or on the Real Property or
claims asserted or arising under the Environmental Laws whether
now known or unknown including, without limitation, all; (ii) any
loss or damage resulting from a loss of priority of the Future
Advance or the record First Mortgage due to the imposition of a
lien against the Real Property; (iii) any attorney's fees,
engineering fees and/or charges of any contractor or expert
retained or consulted in connection, with any inquiry, claim or
demand including, without limitation, any costs incurred in
connection with the compliance with such inquire, claim or
demand; (iv) any loss, liability, cost, expense or damage
(including, without limitation, attorney's fees) suffered or
incurred as a result of, arising out of or in connection with any
failure of the Real Property to comply with all applicable
Environmental Laws and any litigation, proceeding or
environmental investigation relating to such compliance or
noncompliance; (v) any loss, liability, cost, damage or expense
(including, without limitation, court costs and attorney's fees)
directly or indirectly arising from any claim, action, demand,
cause of action or damage relating to or in connection with any
personal injury concerning or relating to the presence of any
Hazardous Substance on the Real Property.
(i) The provisions of and the undertakings and
indemnification set out in this paragraph shall survive the
satisfaction and release of the Security Instruments and shall
continue to be the joint and several liability, obligation and
indemnification of Borrowers, binding upon Borrowers, forever.
(j) If at any time or times hereafter the Associations
employ counsel for advice or other representation with respect to
this indemnity, to represent the Associations in any litigation
contest, dispute, suit or proceeding in any way relating to this
indemnity or to enforce Borrowers' obligations under this
indemnity, then in all of the foregoing events, all of the
reasonable attorney's fees and expenses arising from such
services and all expenses, Costs and charges in any way arising
in connection therewith or relating thereto shall be paid by
Borrowers to the Associations, on demand.
(k) The representations, warranties and covenants of
Borrowers set forth in this paragraph shall continue in effect
and, to the extent permitted by law, shall survive the transfer
of title to the Real Property pursuant to foreclosure
proceedings, by deed in lieu of foreclosure or otherwise.
Borrowers acknowledge and agree that their covenants and
obligations under this paragraph are separate and distinct from
their obligations under the Security Instruments and any other
Loan Documents.
SECTION 6.19 Reappraisal. If at any time and for any reason
the Associations, in their sole opinion, reasonably determine
that the value of the Real Property may have declined or be less
than the Associations previously anticipated, or the Associations
are required to reappraise the Real Property pursuant to
regulation or direction from Farm Credit Administration, then,
within sixty (60) days from the Associations' written request,
Borrowers shall, at Borrowers' sole expense, provide to the
Associations a current appraisal of the Real Property, from an
appraiser reasonably acceptable to the Associations and in form
and content as required by the Associations. Borrowers shall
cooperate fully with such appraiser and provide all documents and
information as the appraiser may reasonably request in connection
therewith.
SECTION 6.20 Water Use Permits. Borrowers shall at all
times maintain all water use permits and shall provide copies of
all such permits to Associations upon request. Borrowers agree
to comply with all the terms and conditions of any each water use
permit associated with the Real Property and shall not
voluntarily amend or otherwise curtail the quantities of water
permitted for the Real Property without the prior written consent
of Associations. Further, Borrowers agree not to transfer any
quantities of water associated with the Real Property, as
currently permitted under water use permit, to any other location
without the prior written consent of Associations.
SECTION 6.21 Surface Water Management Permits. Borrowers
agree to comply with all of the terms and conditions of any
surface water management permit affecting the Real Property and
to furnish Associations with copies of all such surface water
management permits upon request by Associations. Further,
Borrowers agree to provide written notice to Associations of any
proposed amendments to any surface water management permits and
agree not to voluntarily amend such surface water management
permits without the prior written consent of Associations.
Borrowers agree to comply with all of the terms and conditions of
any surface water management permit affecting the Real Property
so long as any Obligations are outstanding.
SECTION 6.22 Year 2000 Compliance. Prior to June 30, 1999,
Borrowers shall furnish Associations with such reports, audits,
and other information as is necessary to demonstrate Borrowers'
compliance with all "Year 2000" mandates. All such reports shall
include analysis of Borrowers' information systems and computer
systems software and Borrowers shall make all such software and
hardware upgrades, as may be necessary, to preserve the integrity
of Borrowers' information systems for the transition to the
calendar year 2000. In the event Borrowers fail to furnish the
reports, audits, or other information as required by this
paragraph, Associations reserve the right, at Borrowers' sole
cost and expense to conduct such audits, tests, and reviews as
Associations reasonably deem necessary to ensure Borrowers'
ability to comply with all "Year 2000" mandates.
ARTICLE VII
NEGATIVE COVENANTS
Borrowers covenant, for so long as any of the principal
amount of, or interest on, the Syndication Notes is outstanding
and unpaid or any Obligations remain unpaid or unperformed, that
no Borrower will undertake any of the following actions, without
the prior written consent of the Associations:
SECTION 7.1 Merger, Consolidation, Dissolution, etc.
Consolidate with or merge into any other corporation or
partnership, including a merger of Borrowers; permit another
corporation or partnership to merge into either of them; dissolve
or take or omit to take any action which would result in their
dissolution; acquire all or substantially all the properties or
assets of any other Person; enter into any arrangement, directly
or indirectly, with any Person whereby a 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.
SECTION 7.2 Changes in Business. Engage in any business
other than the business presently conducted by such Borrower on
the date of this Agreement and business of substantially the same
type or directly related thereto.
SECTION 7.3 Other Agreements. Enter into any arrangements,
contractual or otherwise, which would materially and adversely
affect any Borrower's duties to or the rights of, the
Associations under the Loan Documents, or which is inconsistent
with, limit, or abrogate any of the Loan Documents.
SECTION 7.4 Loans by Borrowers. Extend any credit or loan
any monies to any Person other than:
(a) advances made in the normal course of a Borrower's
business for harvesting costs;
(b) credit extended in connection with the sale of juice
dispensing equipment under purchase money security arrangements
represented by promissory notes and security agreements or
capital leases therefore ;
(c) loans and advances on an inter-company basis.
SECTION 7.5 Sale or Encumbrance.
(a) Convey, assign, sell, mortgage, encumber, pledge,
dispose of, hypothecate, grant a security interest in, grant
options with respect to, or otherwise dispose of (directly or
indirectly or by operation of law or otherwise, of record or not)
all or any, part of the legal or beneficial interest in any part
or all of the Collateral.
(b) Sell, assign or otherwise dispose of (whether or not of
record or for consideration or not), or permit the sale,
assignment or other disposition of, all or substantially all of
the assets of any Borrower.
SECTION 7.6 Loans to Borrowers/Liens on Collateral. Other
than loans with one or more of the Associations, Borrowers will
not borrow from anyone on the security of, or create, incur, or
suffer to exist any lien on any of the Collateral.
SECTION 7.7 Other Liens. Create, assume, or suffer to exist
any lien upon the Collateral, whether now owned or hereafter
acquired, except liens for taxes not yet due or which are being
actively contested in good faith by appropriate proceedings;
SECTION 7.8 Compliance with Regulation U and Regulation G.
Permit any part of the proceeds of the Loan made pursuant to this
Agreement to be used to purchase or carry or reduce or retire any
loan incurred to purchase or carry any margin stock (within the
meaning of Regulation U or Regulation G of the Board of Governors
of the Federal Reserve System) or to extend credit to others for
the purpose of purchasing or carrying any such margin stock, or
to be used for any other purpose which violates or which would be
inconsistent with the provisions of Regulation U, or Regulation
G, or other applicable regulation. Each Borrower covenants that
it is not engaged in and will not become engaged in as one of its
principal business activities, the extending of credit for the
purpose of purchasing or carrying such margin stock. If
requested by Associations, each Borrower will furnish to
Associations in connection with Loan hereunder, a statement in
conformity with the requirements of Federal Reserve Form U-1 or
comparable form pursuant to Regulation G, referred to in said
regulations. In addition, each Borrower covenants that no part
of the proceeds of the Loan hereunder will be used for the
purchase of commodity future contracts (or margins therefore for
short sales) for any commodity not required for the normal raw
material inventory of such Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
The following each and all are Events of Default hereunder:
SECTION 8.1 Monetary Default. If Borrowers shall default in
any payment of the principal of or interest on the Notes, or any
of them, when and as the same shall become due and payable,
whether at maturity, by acceleration at the discretion of the
Associations or otherwise;
SECTION 8.2 Non-Monetary Default under the Agreement. If
Borrowers shall default in the performance or compliance with any
of the terms, conditions, covenants or agreements contained in
this Agreement (other than that set forth in Section 8.1 above);
SECTION 8.3 Third Party Default. If any Borrower shall
suffer a default in the performance under the SunTrust Loan
Agreement or under any agreement with any other Person other than
the Associations where such default involves a contractual
liability of such Borrower in excess of $1,000,000.00;
SECTION 8.4 Misrepresentation. If any representation or
warranty made in writing by or on behalf of any Borrower, in this
Agreement 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;
SECTION 8.5 Dissolution. If any order, judgment, or decree
is entered in any proceedings against any Borrower decreeing the
dissolution of such Borrower and such order, judgment, or decree
remains unstayed and in effect for more than thirty (30) days;
SECTION 8.6 Bankruptcy, Failure to Pay Debts, etc. If any
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 any Borrower or a
substantial part of any Borrower's assets, or shall commence any
proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, 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 any
Borrower, in which an order for relief is entered or which
remains undismissed for a period of thirty (30) days or more, or
any Borrower by any act or omission shall indicate its consent
to, approval of or acquiescence in any such petition,
application, or proceeding or order for relief for the
appointment of a custodian, receiver or any trustee for any
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 thirty (30) days or
more;
SECTION 8.7 Fraudulent Conveyance. If any Borrower shall
conceal, remove, or permit to be concealed or removed, any part
of its properties, with intent to hinder, delay or defraud its
creditors or any of them, or make or suffer 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;
SECTION 8.8 Final Judgment. If a final judgment for the
payment of money in excess of $500,000.00 shall be rendered
against any Borrower, and the same shall remain undischarged or
shall not be bonded off to the satisfaction of the Associations
for a period of thirty (30) consecutive days during which the
execution shall not be effectively stayed;
SECTION 8.9 Impairment of Security. If any Security
Instrument, agreement, or other instrument given to the
Associations to evidence or secure the payment and performance of
the Obligations hereunder shall be revoked by any Borrower or
shall cease to be in full force and effect, or the protection or
security afforded the Associations in any portion of the
Collateral secured thereby is impaired for any reason; or any
Borrower shall default in any material respect in the performance
or observance of any term, covenant, condition or agreement on
its part to be performed or observed under any Security
Instrument and such default shall not have been cured or waived
in any applicable grace period contained therein; or any
representation or warranty of any Borrower made in any Security
Instrument shall be false in any material respect on the date as
of which made; or for any reason (except for acts or omissions of
the Associations) the Associations shall fail to have a valid,
perfected and enforceable security interest, lien or mortgage
encumbering the Collateral (or any of them) as required under
this Agreement or if any Borrower shall contest in any manner
that any Security Instrument constitutes its valid and
enforceable agreement or any Borrower shall assert in any manner
that it has no further obligation or liability under such
agreement;
SECTION 8.10 Cross-Default. The default under any other Loan
between Borrowers and any Associations shall be deemed an Event
of Default hereunder.
SECTION 8.11 Condemnation. If the Real Property, or any
material part thereof, is condemned or taken by right of eminent
domain or other public authority and Borrowers' ability to carry
on its business is materially affected as a result of such
taking.
SECTION 8.12 Maintenance Of Majority Ownership.
(a) The failure of Xxx Xxxx Xxxxxxx, Inc. to maintain a
Beneficial Majority Ownership of each Borrower.
(b) The failure of Xxx Xxxx Xxxxxxx, III to maintain a
Beneficial Majority Ownership of Xxx Xxxx Xxxxxxx, Inc.
ARTICLE IX
RIGHTS UPON DEFAULT
Upon the occurrence or continuing of any Event of Default,
the Associations shall have and may exercise any or all of the
rights set forth herein (provided, however, the Associations
shall be under no duty or obligation to do so):
SECTION 9.1 Acceleration. To declare the indebtedness
evidenced by the Syndication Notes and all other Obligations to
be forthwith due and payable, whereupon the Syndication Notes 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 Syndication Notes or in such other Obligations to the
contrary notwithstanding, and, upon such acceleration, the unpaid
principal balance and accrued interest upon the Syndication Notes
shall from and after such date of acceleration bear interest at
the Default Rate.
SECTION 9.2 Right of Setoff. To exercise any rights of
setoff granted by law or under this Agreement or the Loan
Documents.
SECTION 9.3 Other Rights. To exercise such other rights as
may be permitted under any of the Loan Documents or applicable
law.
SECTION 9.4 Uniform Commercial Code. To exercise from time
to time any and all rights and remedies of a secured creditor
under the UCC and any and all rights and remedies available to it
under any other applicable law.
SECTION 9.5 Foreclosure. Subject to the requirements of the
Act, foreclose the First Mortgage and the Supplemental Mortgage
on the Real Property and/or the Security Interest in the Personal
Property by instituting a foreclosure suit in any court having
jurisdiction thereof.
SECTION 9.6 Cure of Defaults. Cure any default or Event of
Default without releasing any Borrower from any obligation
hereunder or under the Loan Documents. In connection with
exercising its right to cure an Event of Default, the
Associations may enter upon the Real Property and do such acts
and things as the Associations deem necessary or desirable to
protect the Real Property, including, without limitation: (i)
paying, purchasing, contesting or compromising any encumbrance,
charge, lien, claim of lien, tax, assessment, fine, or other
imposition; (ii) paying any insurance premiums and (iii)
employing counsel, accountants, contractors and other appropriate
persons to assist the Associations in the foregoing.
SECTION 9.7 Receiver. Secure the appointment of a receiver
or receivers, as a matter of right for the Real Property, whether
such receivership is incident to a proposed sale of the Real
Property or otherwise, and without regard to the value of the
Real Property or the solvency of any Borrower. Each Borrower
hereby consents to the appointment of such receiver or receivers,
waives any and all defenses to such appointment and agrees not to
oppose any application therefor by the Associations. The
appointment of such receiver, trustee or other appointee by
virtue of any court, order or laws shall not impair or in any
manner prejudice the rights of the Associations to receive
payment of the rents and income pursuant to any lease assignment;
the receiver shall be appointed to take charge of, manage,
preserve, protect, and operate the Real Property and any business
or businesses situated thereon, or any combination thereof;
collect all income, including rents; harvest and sell crops not
severed as of the date of appointment of the receiver and collect
the proceeds therefrom; make all necessary and needed repairs;
pay all taxes, assessments and insurance premiums and all other
costs incurred in connection with the Real Property; and after
payment of the expenses of the receivership, including reasonable
attorney's fees and court costs, if any, to apply all net
proceeds derived therefrom in the reduction of the indebtedness
under the Notes and any other Obligations or in such other manner
as the court shall direct. All expenses, fees and compensation
incurred pursuant to any such receivership shall also be secured
by the lien of the First Mortgage and the Supplemental Mortgage
until paid. The receiver, personally or through agents, may
exclude any Borrower wholly from the Real Property and have,
hold, use, operate, manage and control the Real Property and may,
in the name of each Borrower, exercise all of each Borrower's
rights and powers to maintain, construct, operate, restore,
insure, and keep insured the Real Property in such manner as such
receiver shall deem appropriate.
SECTION 9.8 Other Security. The Associations may proceed to
realize upon any and all other security for the Syndication Notes
in such order as the Associations may elect; and no such action,
suit, proceeding, judgment, levy, execution or other process will
constitute an election of remedies by the Associations or will in
any manner alter, diminish or impair the lien and security
interest created by the Future Advance and the First Mortgage and
Supplemental Mortgage, unless and until the Syndication Notes are
paid in full.
SECTION 9.9 Collect Income. Following the occurrence of an
Event of Default, if the Associations shall be entitled to
collect and receive all income from the Collateral which shall
for all purposes constitute property of the Associations and
after deducting the expenses of conducting the business thereof
and of all maintenance, repairs, renewals, replacements,
alterations, additions, betterment's and improvements and amounts
necessary to pay for taxes, assessments, insurance and prior or
other profit charges upon the Collateral or any part thereof, as
well as just and reasonable compensation for the services of the
Associations and all attorneys, agents, clerks, servants and
other employees properly engaged by the Associations, the
Associations shall apply the money received, first to the payment
of the indebtedness secured by the First Mortgage, the Future
Advance, and the Supplemental Mortgage, when and as the same
shall become payable and then to the payment of any other sums
required to be paid by Borrowers to the Associations under the
Loan Documents.
SECTION 9.10 Use of Fund Balance. To use any funds of
Borrowers, including any balance which may be available in any
cash collateral, reserve or contingency account under the Loan.
SECTION 9.11 Status of the Collateral Upon an Event of
Default. Upon the occurrence of any Event of Default, and
pursuant to the procedures agreed to among the Associations under
Article IX, Agent, after giving written notice to Borrowers and
the Associations of the actions to be taken, may at any time or
times thereafter (i) deliver any correspondence or notices
required by this Agreement; (ii) receive directly, for the
benefit of all of the Associations and for the reduction of each
of the Syndication Notes as provided hereafter in this Agreement,
all payments and process related to the Collateral; and (iii)
oversee the exercise of the remedies permitted by this Article
IX, which remedies must be unanimously approved by each of the
Associations.
In the case of any sale of the Collateral, the proceeds
which then may be held or recovered by Agent for the benefit of
all of the Associations, shall be applied in the following order:
(a) First, to the payment of all of the reasonable costs
and expenses of such sale and of the collection or enforcement of
such collateral, and reasonable compensation to Agent, its agents
and attorneys, and all of the reasonable expenses and liabilities
incurred and advances made by Agent in connection therewith;
(b) Second, to the liquidation of the indebtedness under
the 7.6 Loan as required by the Collateral Sharing Agreement.
(c) Third, to the payment ratably of the amounts due for
principal and of interest on each of the Syndication Notes and
the liabilities on the 5.0 Loan then outstanding, without
preference or priority of such indebtedness owing to one
Association over a another, or of principal over interest, or of
interest over principal; and
(d) Fourth, to the payment of the surplus, if any, to
Orange-co., Inc. or its successors or assigns, or to whomsoever
may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
SECTION 9.12 Rights of the Associations. Subsequent to the
existence of an Event of Default, or of a Potential Default, the
Associations shall meet to establish written procedures to be
taken by Agent for the protection, collection and enforcement of
the Collateral. Agent shall not act with respect to the
Collateral except in accordance with the written procedures as
established by the unanimous consent of the Associations and
under Agent's loan participation agreement with AgFirst Farm
Credit Bank; provided, however, if an emergency situation exists,
Agent, in its sole discretion and in good faith, may (but is not
required to) take whatever action it deems necessary to protect
the Collateral or enforce the rights of the Associations under
the Loan Documents until the Associations agree on a written
procedure in accordance with this Section.
SECTION 9.13 Enforcement of the Syndication Notes. Nothing
herein contained shall affect or impair any Association's right,
which is absolute and unconditional, to enforce the payment of
its Note, provided; however, that none of the Associations may
enforce or demand enforcement of, any rights or liens with
respect to the Collateral except upon the terms and conditions
stated in this Agreement.
SECTION 9.14 Obligation to the Associations. Borrowers
shall be deemed to be directly obligated to each of the
Associations to the extent of the full amount of the Note in
favor of such Association, and each Association shall be entitled
to exercise the rights of offset applicable to it pursuant to
this Agreement.
SECTION 9.15 Default Other Obligations. Each Association
may, at its option, treat an Event of Default under this
Agreement as an Event of Default or default under any other loan
between Borrowers or either of them and such Association.
The Associations agree among themselves that, if an
Association shall obtain payment through the exercise of a right
of offset or other collection efforts, such Association shall
remit such amount to Agent for redistribution to Associations
pursuant to their Proportionate Share as set out in this
Agreement.
ARTICLE X
AGENCY PROVISIONS
SECTION 10.1 Authorization and Action. Each Association
hereby irrevocably appoints and authorizes Agent to take such
actions as agent on behalf of such Association and to exercise
such powers under this Agreement as are delegated to Agent by the
terms of this Agreement, together with such additional powers as
are reasonably incidental thereto. Agent shall not, by reason of
this Agreement, be a trustee or fiduciary for any of the other
Associations. Agent shall have only those duties and
responsibility expressly set forth in this Agreement. As to any
matters not expressly provided for in this Agreement and the
Collateral Sharing Agreement (including, without limitation,
enforcement or collection of the Syndication Notes), Agent shall
not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or so refraining from acting)
upon the instructions given by the Associations (with such
instructions to require the unanimous consent of all of the
Associations), and such instructions shall be binding upon all
holders of the Syndication Notes; provided, however, Agent shall
not be required to take any action which exposes Agent to
personal liability or which is contrary to this Agreement, the
Collateral Sharing Agreement, or applicable law.
In general, and except as otherwise provided in this
Agreement, The Collateral Sharing Agreement or any of the other
Loan Documents and except as otherwise mutually agreed by Agent
and each of the Associations, Agent will act on behalf of each of
the Associations in connection with the receipt and collection of
payments with respect to accounts payable, accrued interest,
penalties or prepayment charges and principal under the Loan and
Agent will service, manage, collect and enforce the Loan on
behalf of itself and each other Association.
SECTION 10.2 Termination of Agency Status.
10.2.1 Notwithstanding any contrary provision contained
in this Agreement, any Association may terminate the agency of
the Agent with respect to the Loan, by providing written notice
thereof to Agent, upon the occurrence of any of the following
events:
(a) The appointment of a conservator or receiver for,
or the liquidation of, Agent by the Farm Credit Administration or
the filing of any petition of bankruptcy by or against Agent
unless discharged within thirty (30) days; or
(b) The Association shall make a good faith
determination that Agent has failed or refused to comply with
its duties and obligations as Agent in accordance with, and
pursuant to, the terms of this Agreement; or
(c) Agent is in continuous material default under its
General Financing Agreement with AgFirst Farm Credit Bank which
has not been cured or, default thereunder waived, within sixty
(60) days from the date of default.
10.2.2 Upon the termination of Agent's agency status on
behalf of any Association, such Association thereafter shall have
the right to represent its own interest with respect to its
interest in the Loan including, without limitation, its Note.
Without limiting the generality of the immediately preceding
sentence, such Association shall have the right to immediately
direct Borrowers to pay all principal and interest payments with
respect to such Association's Note directly to such Association
(referred to herein as a "Direct Payment Notice"), and, if
requested by the particular Association, Agent shall join in any
such Direct Payment Notice.
10.2.3 Furthermore, upon the termination of Agent's
agency status on behalf of any Association, then, notwithstanding
any contrary provision contained in this Agreement, all further
decisions with respect to the Loan shall require the unanimous
consent of Agent and each Association.
SECTION 10.3 Rights of Agent as an Association. With
respect to this Agreement, the Loan made by it and the
Syndication Note issued to it, Agent shall have the same rights
and powers under this Agreement as any of the other Associations
and may exercise the same as though it were not Agent; and the
term "Associations" shall, unless otherwise expressly indicated,
include Agent in its individual capacity. Agent may lend money
to, and generally engage in any kind of business with Borrowers,
any of Borrowers' Affiliates and any Person who may do business
with or own securities of any Borrower or any Affiliate, all as
if Agent were not Agent and without any duty to account therefor
to the other Associations.
SECTION 10.4 Successor Agent. In the event of termination
of Southwest as Agent, South shall automatically shall be the
successor Agent. The successor Agent shall succeed to and become
vested with all of the rights, powers, privileges and duties of
the removed Agent, and the removed Agent shall be discharged from
any further duties and obligations under this Agreement.
SECTION 10.5 Provisions With Respect to Information as to
Borrowers and the Loan. Until such time as this Loan, and all of
the Syndication Notes, have been paid in full, each of the
Associations, including, in particular, Agent, shall be obligated
to furnish to each of the other Associations any and all
information, including Confidential Information (as defined
below), with respect to Borrowers and with respect to the Loan
which may, at any time, come into the possession of Agent or any
of the other Associations, as the case may be; provided, however,
each of the Associations receiving any Confidential Information
of Borrowers will exercise the same degree of care to protect
such Confidential Information from any unauthorized disclosure
and from any unauthorized use as such Association exercises to
protect such Association's own confidential and proprietary
information.
Agent hereby acknowledges and confirms to each Association
that Agent has advised Borrowers, and Borrowers hereby consent,
that each Association will be entitled to receive any and all
information, including any Confidential Information, with respect
to Borrowers and with respect to the Loan which may, at any time,
be furnished by, or at the direction of, Borrowers to any
Association, including Agent, or otherwise obtained by any
Association, including Agent.
The term "Confidential Information" as used in this Section,
shall mean any information which is in writing, which is clearly
marked "Confidential" and which is provided by, or at the
direction of, Borrowers to any of the Associations, including, in
particular, Agent, with respect to the business or businesses,
financial condition, operations, assets and properties,
management, suppliers, customers, production or sales of
Borrowers; provided, however, the term "Confidential Information"
shall not include any of the foregoing information (a) which, at
the time of disclosure to any of the Associations, is otherwise a
part of the public domain, or (b) which, at any time after
disclosure to any of the Associations, becomes a part of the
public domain through no fault of any of the Associations, (c)
which is received by any of the Associations from a third party
who is legally in possession of it and who is not under any
obligation of confidentiality with respect thereto, or (d) which,
at the time of disclosure to any of the Associations, is already
in the possession of any of the Associations.
SECTION 10.6 Provisions With Respect to Payments by
Borrowers. Except as otherwise expressly provided in this
Agreement, or in any of the other Loan Documents, the following
provisions shall be applicable with respect to all payments made
by or on behalf of Borrowers with respect to the Loan:
10.6.1 Payments with respect to the Loan shall be
allocated first to costs, next to accrued interest, next to
penalties or any Prepayment Premiums, and last to principal. Any
payments received by Agent and not designated by Borrowers as
applying to a specific loan shall be applied first to the Note on
which interest or principal is currently due (to the extent of
the amount due) and next to loans in accordance with Agent's
customary practices.
10.6.2 If Agent has one or more loans to Borrowers
other than the Loan under this Agreement, then, notwithstanding
any contrary provision contained herein, Agent shall have an
obligation of fairness with respect to its collection practices,
its application of payments that are not designated as payments
on a specific loan, and its application of the proceeds of any
security which is not the primary security for this Loan. Agent
shall conduct its collection practices in a manner consistent
with what its conduct would be if it were the sole owner of all
outstanding loans to Borrowers. Agent further agrees that it
will attempt to apply default remedies in a manner that permits
the proceeds of Collateral for all outstanding loans, including
this Loan, to be divided equitably among the outstanding balances
of all loans that are secured to the same extent by such
Collateral; provided, however, this provision shall never be
interpreted or construed to require that the collateral which is
first lien Collateral for this Loan to be applied against the
balance of any other loans to Borrowers while there is a balance
outstanding on this Loan except to the extent required by this
Agreement, the Act, the Collateral Sharing Agreement, or other
loan participation agreement among the Associations and AgFirst
Farm Credit Bank.
10.6.3 Notwithstanding the foregoing provisions, if the
Loan is declared to be in distress or is declared to be in
default, then, except as otherwise provided in this Agreement,
the Collateral Sharing Agreement, or as otherwise mutually agreed
by Agent and all of the Associations, Agent and all of the
Associations will thereafter each share in subsequent principal
and interest payments and/or collections and losses in proportion
to their Proportionate Share.
10.6.4 Any payment or portion thereof made by or on
behalf of Borrowers and designated by Agent, in accordance with
this Agreement or any of the other Loan Documents, as payment of
interest shall be applied prorata according to the Proportionate
Share of the accrued interest for each Association's Note
evidencing the Loan at the time of receipt of any such payment.
10.6.5 All fees received by Agent from Borrowers for
default and late charges and prepayment charges shall be shared
by Agent and all of the Associations at such time as they are
received by Agent according to each Association's Proportionate
Share.
10.6.6 All origination, closing and servicing fees paid
by or on behalf of Borrowers under this Agreement or any of the
other Loan Documents shall, unless otherwise mutually agreed by
the Associations, belong to Agent; provided, however, commitment
fees, regardless of when paid, shall be divided among the
Associations as provided in the offer of syndication for the
Loan.
10.6.7 All principal and interest payments and other
amounts collected by Agent under the Loan will be held in trust
by Agent for the benefit of all of the Associations until such
funds are actually paid to and received by each particular
Association. Each Association, as the beneficiary of such trust,
will at all times be immediately entitled to payment of all funds
held in trust by Agent for such Association.
SECTION 10.7 Benefits of this Article X. Although binding
upon and creating certain obligations for Borrowers, none of the
provisions of this Article X shall inure to the benefit of
Borrowers or any Person other than the Associations and AgFirst
Farm Credit Bank as a loan participant; consequently, neither
Borrowers or any other Person shall be entitled to rely upon or
to raise as a defense, in any manner whatsoever, the failure of
any of the Associations to comply with the provisions of this
Article X.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cumulative Remedies. The remedies provided in
this Agreement and in the Loan Documents are cumulative and not
exclusive of any remedies provided by law or in equity. Upon an
Event of Default, the Associations may elect to exercise any one
or more of such remedies and such election shall not waive or
cause the Associations to have elected not to subsequently
exercise any other such remedies available to it under the
Agreement or any Loan Document.
SECTION 11.2 Amendments, etc. No amendment, modification,
termination or waiver of any provision of this Agreement, the
Syndication Notes or the other Loan Documents, nor consent to any
departure by Borrowers, shall in any event be effective unless
the same shall be in writing and signed by the Associations, and
then such waiver or consent shall be effective only in specific
instance and for the specific purpose for which given.
SECTION 11.3 Addresses for Notices, etc. All notices,
requests, demands and other communications provided for hereunder
shall be in writing and shall be deemed to have been given (i) in
the case of delivery, when addressed to the other party and
delivered to the address set forth below, (ii) in the case of
mailing, three (3) days after said notice has been deposited in
the United States Mails, postage prepaid, by certified or return
mail, and addressed to the other party as set forth below, and
(iii) in all of the cases, when received by the other party. The
address at which notices may be sent under this Section are the
following:
If to Borrowers:
Orange-co, Inc. and Orange-co, Inc. of Florida, Inc.
X.X. Xxx 0000
Xxxxxx, XX 00000
If to South:
Farm Credit of Xxxxx Xxxxxxx, XXX
00000 - 70th Road South
X.X. Xxx 0000
Xxxx Xxxxx, XX 00000
If to Agent in its capacity as Agent and as an Association:
Farm Credit of Southwest Florida, ACA
P. O. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Any party may at any time change the address to which notices may
be sent under this Section by the giving of notice of such to the
other party in the manner set forth herein.
SECTION 11.4 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, except to the extent that applicable federal
law supersedes such state law.
SECTION 11.5 Actions and Process. Any legal action or
proceeding against Borrowers with respect to this Agreement may
be brought in such of the courts of competent jurisdiction of the
state or federal courts located in DeSoto County, Florida as the
Associations or their successors and assigns, as the case may be,
may elect, and, by execution and delivery of this Agreement,
Borrowers irrevocably submit to the nonexclusive jurisdiction of
such courts for purposes of legal actions and proceedings
hereunder and, in case of any such legal action or proceeding
brought in the above-named Florida courts, hereby irrevocably
consent, during such time, to the service of process out of any
of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered mail, postage
prepaid, to Borrowers at its address as provided in Section 11.3
hereof; or by any other means permitted by applicable law. If it
becomes necessary for the purpose of service of process out of
any such courts, Borrowers shall take all such action as may be
required to authorize a special agent to receive, for and on
behalf of it, service of process in any such legal action or
proceeding, and shall take all such action as may be necessary to
continue said appointment in full force and effect so that
Borrowers will at all times have an agent for service of process
for the above purposes available in DeSoto County, Florida. To
the extent permitted by law, a final judgment (a copy certified
by the court that has rendered the judgment shall be conclusive
evidence of the fact and of the amount of any indebtedness of
Borrowers to the Associations) against Borrowers in any such
legal action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on an unsatisfied
judgment. To the extent that any Borrower has or hereafter may
acquire any immunity from jurisdiction of any of the above-named
courts or from any legal process therein, each such Borrower
hereby irrevocably waives such immunity, and each such Borrower
hereby irrevocably waives and agrees not to assert by way of
motion, as a defense, or otherwise, in any legal action or
proceeding brought hereunder in any of the above-named courts,
(i) the defense of immunity, (ii) any claim that it is not
personally subject to the jurisdiction of the above-named courts
by reason of immunity or otherwise, (iii) that it or any of its
property is immune from the above described legal process
(whether through service of notice, attachment prior to judgment,
attachment in aid of execution, or otherwise), (iv) that such
action or proceeding is brought in an inconvenient forum, that
venue for the action or proceeding is improper or that this
Agreement may not be enforced in or by such courts, or (v) any
defense that would hinder or delay the levy, execution or
collection of any amount to which any party hereto is entitled
pursuant to a final judgment of any court having jurisdiction.
Nothing in these provisions shall limit any right of an
Association to bring actions, suits or proceedings in the courts
of any other jurisdiction. Borrowers expressly acknowledge that
the foregoing waiver is intended to be irrevocable under the laws
of the State of Florida and of the United States of America.
SECTION 11.6 Survival of Representations and Warranties.
All representations, warranties, covenants and agreements
contained herein or made in writing by Borrowers in connection
herewith shall survive the execution and delivery of this
Agreement, the Syndication Notes and the other Loan Documents and
be true and correct during the term of the Loan.
SECTION 11.7 Time of the Essence. Time is of the essence of
this Agreement, the Syndication Notes and the other Loan
Documents,
SECTION 11.8 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 11.9 Severability. In case any one or more of the
provisions contained in this Agreement, the Syndication Notes or
the other 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 Syndication
Notes or the other Loan Documents, but this Agreement, the
Syndication Notes 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 be in the reasonable opinion of the
Associations adversely affect the rights of the Associations
under any or all of the Loan Documents, the same shall be an
Event of Default.
SECTION 11.10 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 11.11 Conflict. In the event any conflict arises
between the terms of this Agreement and the terms of any other
Loan Document, the Association shall have the option of selecting
which conditions shall govern the loan relationship evidenced by
this Agreement and, if the Associations do not so indicate, the
terms of this Agreement shall govern in all instances of such
conflict.
SECTION 11.12 Term. The term of this Agreement shall be for
such period of time until the Loan and Syndication Notes have
been repaid in full, and all Obligations have been paid to the
Associations in full. At such time, the Associations shall xxxx
all the Loan Documents "Cancelled" and return them to Borrowers.
SECTION 11.13 Expenses. Borrowers agree, whether or not the
transactions hereby contemplated shall be consummated, to pay and
save Associations harmless against liability for the payment of
documentary stamp taxes, intangible tax, all out-of-pocket
expenses arising in connection with this transaction and 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,
acquisition and performance of the Syndication Notes (including
any renewal, extension, substitution or replacement thereof)
issued under or pursuant to this Agreements (excepting only any
tax on or measured by net income of Association determined
substantially in the same manner, other than the rate of tax, as
net income is presently determined under the Federal Internal
Revenue Code), all printing costs and the reasonable fees and
expenses of any special counsel to Association in connection with
this Agreement and any subsequent modification thereof or consent
thereunder. The obligations of Borrowers under this Section
11.13 shall survive payment of the Syndication Notes.
SECTION 11.14 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
itself authorize any delegation of duties by Borrowers or any
other assignment which may be prohibited by the terms and
conditions of this Agreement.
SECTION 11.15 Further Assurances. Borrowers shall, from
time to time, execute such additional documents as may reasonably
be requested by the Associations or the counsel, to carry out and
fulfill the intent and purpose of this Agreement and the Loan
Documents.
SECTION 11.16 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 11.17 WAIVER OF JURY TRIAL. EACH BORROWER HEREBY
AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE
SYNDICATION LOAN DOCUMENTS, AND/OR THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT, OR ANY DEALINGS BETWEEN BORROWERS AND THE
ASSOCIATIONS. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction,
including without limitation, contract claims, tort claims,
breach of duty claims, and all other common law and statutory
claims. Borrowers acknowledge that this waiver is a material
inducement to the Associations to enter into a business
relationship with Borrowers. Borrowers represent and warrant
that each has reviewed this waiver with their legal counsel, and
that such waiver is knowingly and voluntarily given following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED, EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, REPLACEMENTS, REAFFIRMATIONS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT. In the event of litigation this Agreement may
be filed as a written consent to a trial by the court.
No claim may be made by any Borrower against the
Associations, any of their affiliates and their respective
directors, officers, employees, attorneys or agents for any
special, indirect or consequential damages ("Special Damages") in
respect of any breach or wrongful conduct (whether the claim
therefor is based on contract, tort or duty imposed by law) in
connection with, arising out of, or in any way related to the
transactions contemplated or relationship established by this
Agreement, or an act, omission or event occurring in connection
herewith or therewith; and each Borrower hereby waives, releases
and agrees not to xxx upon any such claim for Special Damages
whether or not accrued and whether or not known or suspected to
exist in its favor.
SECTION 11.18 No Waiver. No failure or delay on the part of
the Associations in exercising any right, power or remedy
hereunder, or under the Syndication Notes 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.
SECTION 11.19 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.
Signed and sealed in
the presence of: Orange-co, Inc., a Florida corporation
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
--------------------------- ------------------------
(Print Name)Xxxx X. Xxxxxxx Xxxx Xxxxxx, as its President
/s/ X. X. Xxxxx, III By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------- ---------------------------------------
(Print Name)X.X. Xxxxx, III Xxxx Xxxxxxxxxxx, as its Vice President
and Chief Financial Officer
Orange-co of Florida, Inc.,
a Florida corporation
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxx
---------------------------- -----------------------------
(Print Name)Xxxx X. Xxxxxxx Xxxx Xxxxxx, as its President
/s/ X. X. Xxxxx, III By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------- -----------------------------
(Print Name)X. X. Xxxxx, III Xxxx Xxxxxxxxxxx, as its Vice President
and Chief Financial Officer
Farm Credit of South Florida, ACA
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Print Name------------------ Xxxxxx X. Xxxxxxxx,
its Senior Vice President
----------------------------
Print Name------------------
Farm Credit of Southwest Florida, ACA
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------------- ---------------------------------
Print Name Xxxx X. Xxxxxxx Xxxx X. Xxxxxx,
its Senior Vice President
/s/ X. X. Xxxxx, III
----------------------------
Print Name X. X. Xxxxx, III
