EXHIBIT 10-33
NINTH AMENDMENT TO LOAN AGREEMENT
THIS NINTH AMENDMENT TO LOAN AGREEMENT dated as of April 30,
1999, by and between:
ORANGE-CO, INC., a Florida corporation and
ORANGE-CO OF FLORIDA, INC., a Florida
corporation, 0000 Xxxxxxx 00 Xxxxx, Xxxxxx,
Xxxxxxx 00000 (hereinafter collectively
referred to as the "Borrowers");
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION, a national banking association,
000 Xxxxx Xxxxxx Xxxxxx, Xxxx Xxxxxx Xxx
0000, Xxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Bank").
W I T N E S S E T H:
WHEREAS, pursuant to the Loan Agreement, dated June 16,
1993, as amended, by and among the Bank and the Borrowers, the
Bank agreed to extend to the Borrowers a working capital line of
credit loan in the maximum principal amount of $50,000,000.00
(the "Working Capital Loan") and a revolving line of credit loan
in the maximum principal amount of $10,000,000.00 (the "Revolving
Loan"); and
WHEREAS, the Borrowers have requested the Bank to renew the
commitments under the Working Capital Loan and Revolving Loan and
to otherwise modify certain terms and conditions related thereto;
and
WHEREAS, the Bank has agreed to the foregoing subject to the
terms and conditions hereof and the other Loan Documents.
NOW, THEREFORE, for and in consideration of the above
premises, and the mutual covenants and agreements contained
herein, the Borrowers and the Bank do hereby agree as follows:
1. Amendments to Loan Agreement. The Loan Agreement is
hereby amended as follows:
2.
(a) Article One of the Loan Agreement is hereby
amended by replacing the definition of "Debt Service" with the
following:
(b)
"'Debt Service' shall mean the
sum of interest payments and regularly
scheduled principal payments made by the
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Borrowers during the most recent twelve
(12) month period."
(a) A definition of "Revolving Loan Maturity Date" is
hereby added to the Loan Agreement to read as follows:
(b)
"'Revolving Loan Maturity
Date' shall mean the earlier occurrence
of (i) an Event of Default hereunder or
(ii) April 30, 2000."
(a) Article One of the Loan Agreement is hereby
amended by replacing the definition of "Revolving Period" with
the following:
(b)
"'Revolving Period' shall mean
the periods during which Advances are
available to the Borrowers under the
Revolving Loan and Working Capital Loan,
respectively, which shall commence on
the satisfaction of each of the
conditions precedent set forth in
Article Five hereof and end on the
Revolving Loan Maturity Date and Working
Capital Loan Maturity Date, respectively."
(a) A definition of "Working Capital Loan Maturity
Date" is hereby added to the Loan Agreement to read as follows:
(b)
"'Working Capital Loan
Maturity Date" shall mean the earlier
occurrence of (i) an Event of Default
hereunder or (ii) April 30, 2001."
(a) Article Four of the Loan Agreement is hereby
amended by replacing Section 4.01(a) of the Loan Agreement as
follows:
(b)
"(a) Accounting;
Financial Statement; Etc. The
Borrowers will deliver or cause to be
delivered to the Bank copies of each of
the following:
(i) as soon as practicable and in
any event within forty-five (45)
days after the end of each quarter
in each fiscal year, internally
generated financial statements of
the Borrowers and their
Subsidiaries for the period from
the beginning of the current fiscal
year to the end of such quarter, in
reasonable detail and certified by
an authorized financial officer of
the Borrowers, subject to changes
resulting from year-end
adjustments;
(ii) as soon as practicable and in
any event within
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ninety (90) days after the end of each
fiscal year, an audited consolidated profit
and loss statement, reconciliation of
surplus statement, and source and
application of funds statement of
the Borrowers and their
Subsidiaries for such year, and an
audited consolidated balance sheet
of the Borrowers and their
Subsidiaries as at the end of such
year, setting forth in each case in
comparative form corresponding
consolidated figures from the
preceding annual audit and
certified to the Borrowers by
independent certified public
accountants of recognized standing
selected by the Borrowers whose
certificate shall be in scope and
substance satisfactory to the Bank;
(iii) promptly upon
transmission thereof, copies of all
such financial statements, proxy
statements, notices, and reports as
it shall send to all stockholders
and of all registration statements
(without exhibits) and all reports
which either Borrower is or may be
required to file with the
Securities and Exchange Commission
or any governmental body or agency
succeeding to the functions of such
Commission;
(iv) promptly upon receipt thereof,
a copy of each other report
submitted to the Borrower by
independent accountants in
connection with any annual,
interim, or special audit made by
them of the books of the Borrowers;
(v) Simultaneously with the
delivery of each set of annual and
quarterly financial statements, a
statement of the Borrower's chief
executive officer, chief
financial/accounting officer or
chief technology officer to the
effect that nothing has come to
his/her attention to cause him/her
to believe that the Y2K Plan
milestones have not been met in a
manner such that the Borrower's and
its Subsidiaries' hardware and
software systems are not Year 2000
Compliant and Ready;
(vi) on a monthly basis, a
Borrowing Base Certificate; and
(vii) with reasonable
promptness, information regarding
the hedging activities of the
Borrowers and their Subsidiaries
including a summary of all futures
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long and short positions and such
other data and information as from
time to time may be required by the
Bank.`
Together with each delivery of
financial statement required by
clause (ii) above, the Borrowers
shall deliver to the Bank a
certificate of said accountants
stating that, in making the audit
necessary to have the certificate
of such financial statements, they
have obtained no knowledge of an
Event of Default or Default, or, if
any such Event of Default or
Default exists, specifying the
nature and period of existence
thereof. Such accountants,
however, shall not be liable to
anyone by reason of their failure
to obtain knowledge of any such
Event of Default or Default which
would not be disclosed in the
course of an audit conducted in
accordance with GAAP. The
Borrowers also covenant that
forthwith upon any officer of the
Borrowers obtaining knowledge of
any Event of Default or Default
under this Agreement or any other
obligation of the Borrowers, it
shall deliver to the Bank and
Officer's Certificate specifying
the nature thereof, the period of
existence thereof, and what action
the Borrowers purposes to take with
respect thereto."
(a) Article Four of the Loan Agreement is hereby
amended by replacing Section 4.01(q) as follows:
(q) Current Ratio. As
at the end of each fiscal quarter,
the Borrowers' Current Ratio shall
equal to or exceed 1.0:1.0.
(a) Article Four of the Loan Agreement is hereby
amended by replacing Section 4.01(r) as follows:
(b)
(r) Debt Service
Coverage Ratio. As at the end of
each fiscal quarter, calculated on
a rolling four quarter basis the
ratio of the Borrowers' Cash Flow
Before Debt Service to its Debt
Service shall be 1.25:1.0.
(a) Article Four of the Loan Agreement is hereby
amended by replacing Section 4.01(s) as follows:
(b)
(s) Minimum Debt to Net
Worth. As at the end of each fiscal
quarter, the ratio of the
Borrowers' Liabilities to
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Net Worth shall be less than 1.2:1.0.
(a) Article Four of the Loan Agreement is hereby
amended by replacing Section 4.01(t) as follows:
(b)
(t) Minimum Net Worth.
As at the end of each fiscal
quarter, the Borrowers' Net Worth
shall be greater than
$90,000,000.00.
(a) Article Four of the Loan Agreement is hereby
amended by adding Section 4.01(w) as follows:
(b)
(w) Year 2000
Compliance. Each Borrower has
developed a comprehensive working
plan (the "Y2K Plan") to insure
that each Borrower's and each
Subsidiary's software and hardware
systems which impact or affect in
any material way the business
operations of either Borrower or
their Subsidiaries are Year 2000
Compliant and Ready (defined
below). Upon the request of the
Bank, each Borrower will promptly
deliver to the Bank a copy of such
Y2K Plan and a copy of any third
party assessment of the Y2K Plan
(if available). Each Borrower and
their Subsidiaries have met all
previous Y2K Plan milestones and
will hereafter meet all future Y2K
Plan milestones so that all
hardware and software systems will
be Year 2000 Compliant and Ready in
accordance with the Y2K Plan,
except where the failure to meet
such milestones has not had, or
would not have, a material adverse
effect on the business, operations,
assets or condition (financial or
otherwise) of either Borrower or
their Subsidiaries on a
consolidated basis. As used
herein, "Year 2000 Compliant and
Ready" means that each Borrower's
and their Subsidiary's hardware and
software systems with respect to
the operation of their business and
their general business plan will:
(i) handle date information
involving any and all dates before,
during and/or after January 1,
2000, including accepting input,
providing output and performing
date calculations in whole or in
part; (ii) operate accurately
without interruption on and in
respect of any and all dates
before, during and/or after January
1, 2000 and without any change in
performance, (iii) respond to and
process two digit year input
without creating any ambiguity as
to the century, and (iv)
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store and provide date input information
without creating any ambiguity as
to the century."
2. Capitalized Terms. All capitalized terms contained
herein shall have the meanings assigned to them in the applicable
Loan Documents (as defined in the Loan Agreement) unless the
context herein otherwise dictates or unless different meanings
are specifically assigned to such terms herein.
3. Representations and Warranties. Each of the Borrowers
represents and warrants as follows:
(a) The execution, delivery and performance of this
Ninth Amendment to Loan Agreement and the other loan documents
provided to the Bank in connection therewith has been duly
authorized by all requisite action of the Borrowers; and
(b) The Loan Documents are valid, legal binding
obligations of the Borrowers enforceable in accordance with their
terms. There are no defenses, counterclaims, rights of setoff or
recoupment thereunder.
4. Miscellaneous. The Borrowers hereby confirm the terms
conditions, representations and warranties of the Loan Agreement.
The Loan Agreement, as amended hereby, shall remain in full force
and effect and this Ninth Amendment to Loan Agreement shall not
be deemed to be a novation.
5. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such
counterpart.
IN WITNESS WHEREOF, the parties have executed the Ninth
Amendment to Loan Agreement as of the day and year first above
written.
BORROWERS:
ORANGE-CO, INC., a Florida corporation
By:/s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxxx, Vice President
(CORPORATE SEAL)
ORANGE-CO OF FLORIDA, INC., a Florida
corporation
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By:/s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxxx, Vice President
(CORPORATE SEAL)
BANK:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx, First Vice President
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