LOAN AGREEMENT
Exhibit
99.10
THIS
LOAN AGREEMENT (the “Loan Agreement”) is
made and entered into to be effective on September 24, 2008, by and between
Farm Credit of Southwest
Florida, ACA, an
agricultural credit association for itself and as agent/nominee for other
lending institutions having an interest, direct or indirect, in the Loan (as
defined hereinbelow) from time to time, whose address is 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (“Lender”), ATLANTIC BLUE GROUP, INC., ALICO
HOLDING, LLC, BLUE HEAD RANCH, LLC, BLUE HEAD FARMS, LLC, BLUE HEAD CATTLE, LLC,
TRI-COUNTY GROVE, LLC, PHOENIX INDUSTRIES, LLC, ATLANTICBLUE WAREHOUSING, LLC,
BLUE BOX STORAGE, LLC AND FOOTMAN TRAIL, LLC (collectively, “Borrowers” and each a
“Borrower”),
whose addresses are X.X. Xxx 0000, Xxxx Xxxxx, Xxxxxxx 00000-0000 and the
Guarantors (as defined below) (collectively, the “Parties”, each
singly, a “Party”).
NOW,
THEREFORE, in consideration of the terms and conditions set forth herein, Lender
and Borrowers enter into this Loan Agreement and agree as follows:
1. Definitions. For
the purposes hereof:
1.1 “Advance”
means an advance of proceeds of the RLOC to Borrowers pursuant to the terms
of this Loan Agreement.
1.2 “Advance
Agent” means Xxx X. Xxxxx, Xx., or such other Person as may be designated by
Borrowers in writing from time to time.
1.3 “Affiliate”
means, with respect to a named Person, (a) any Person directly or indirectly
owning five percent (5%) or more of the voting stock or rights in such named
Person or of which the named Person owns five percent (5%) or more of such
voting stock or rights; (b) any Person controlling or controlled by or under
common control with such named Person; (c) any officer, director or managing
employee or agent of such named Person or any Affiliate of the named Person; and
(d) any immediate family member of the named Person or any Affiliate of such
named Person.
1.4 “Alico
Stock” means the 800,000 shares of Alico, Inc. common stock and all rights
related thereto pledged by Alico Holding, LLC, as collateral for the Loan
pursuant to the Stock Pledge Agreement and any additional shares of Alico, Inc.
common stock pledged to Lender from time to time.
1.5 “Business
Day” means any day on which Lender is open for business.
1.6 “Change
of Control” means an event or series of events by which:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such
person or its subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right
to acquire (such right, an “option right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of 25% or more of the equity securities of the
applicable Credit Party entitled to vote for members of the board of directors
or equivalent governing body of such Credit Party on a fully-diluted basis (and
taking into account all such securities that such person or group has the
right to acquire pursuant to any option right) excluding beneficial owners of
more than 25% of the equity securities of such Credit Party entitled to vote for
members of the board of directors or equivalent governing body of such Credit
Party on a fully-diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any option right)
at the execution of this Loan Agreement;
(b) during any
period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of such Credit Party cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors); or
(c) any Person
or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the management or
policies of such Credit Party, or control over the equity securities of such
Credit Party entitled to vote for members of the board of directors or
equivalent governing body of such Credit Party on a fully-diluted basis (and
taking into account all such securities that such Person or group has the right
to acquire pursuant to any option right) representing 25% or more of the
combined voting power of such securities, excluding such persons with such
powers at all time of the execution of this Amended and Restated Loan
Agreement.
1.7 “Closing”
or “Closing Date” means the date hereof.
1.8 “Code”
means the Uniform Commercial Code as in effect under the laws of the State of
Florida from time to time, as the same may be amended.
1.9 “Collateral”
means the Alico Stock pledged pursuant to the Stock Pledge
Agreement.
1.10 “Credit
Parties” means, collectively, Borrowers, and any Subsidiary of any Borrowers
which, after the Closing Date, is joined to this Loan Agreement pursuant to
Section 4.1(m)
hereof, and “Credit Party” means any of them.
1.11 “Environmental
Laws” shall mean state, federal or local environmental laws or regulations,
including but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. § 9601 et seq.; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. § 1101 et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Hazardous Materials
Transportation Act of 1974, 49 U.S.C. § 1801 et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air
Act, 42 U.S.C. § 4701 et m.; the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. § 136 et seq.; the Safe
Drinking Water Act, 42 U.S.C. § 3001 et seq.; the Toxic
Substances Control Act, 15 U.S.C. § 2601 et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; any laws
regulating the use of biological agents or substances including animal, medical
or infectious wastes, each as amended or supplemented, and any analogous future
or present local, state, and federal statutes, regulations, and ordinances
promulgated pursuant thereto which may be applicable.
1.12 “Event
of Default” shall have the meaning set forth in Article 6.
1.13 “Expiration
Date” means the Business Day occurring immediately prior to the RLOC Maturity
Date.
1.14 “GAAP”
means generally accepted accounting principles and practices as in effect from
time to time and recognized as such by the American Institute of Certified
Public Accountants, consistently applied.
1.15 “Governmental
Authority” means the government of the United States or any other nation, or of
any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any
supra-national bodies such as the European Union or the European Central
Bank).
1.16 “Guarantors”
means Atlanticblue Hospitality (Lakeville), LLC, Atlanticblue Hospitality (CAS),
LLC, and Atlantieblue Development, Inc., each a Guarantor.
1.17 “Guaranty
Agreements” means the guaranty agreement of each Guarantor dated of even date
herewith in favor of Lender guaranteeing the Loan.
1.18 “Indebtedness”
means, collectively, all liabilities (including, without limitation, Capital
Lease obligations) of the subject Person, whether owing by such Person alone or
with one or more others in a joint, several, or joint and several capacity,
whether now owing or hereafter arising, whether owing absolutely or
contingently, whether created by loan, overdraft, guaranty of payment, or other
contract or by quasi-contract or tort, statute or other operation of law or
otherwise.
1.19 “Insolvent”
means, for the subject Person, that such Person shall have ceased paying its
debts in the ordinary course of business or shall have become incapable of
paying its debts as they become due, or is experiencing a financial condition
such that the sum of the Person’s debts is greater than all of such Person’s
property, at a fair valuation, exclusive of property transferred, concealed or
removed with intent to hinder, delay or defraud such Person’s
creditors.
1.20 “Intercompany
Transaction” means any Indebtedness or obligation arising from business done
with or for, or Indebtedness owed between or among, Credit Parties or any
Affiliate thereof.
1.21 “Internal
Control Event” means a material weakness in, or fraud that involves management
or other employees who have a significant role in, any Credit Party’s internal
controls over financial reporting, in each case as described in the Securities
Laws.
1.22 “Lien”
or “Liens” means, with respect to any asset, mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such
asset.
1.23 “Loan
Documents” means this Loan Agreement, the Note, the Subordination Agreement, the
Tax Indemnification Agreement, Stock Pledge Agreement, the Guaranty Agreements
and such consents and all other documents, instruments, certificates and
agreements executed and/or delivered by any Credit Party or any third party in
favor of Lender in connection with the Loan or any Collateral.
1.24 “Loan”
means, the RLOC as described in Section 2.1.
The terms Loan and RLOC may be used interchangeably in this Loan
Agreement.
1.25 “Market
Value of Alico Stock” shall be aggregate value of the Alico Stock as quoted on
NASDAQ.
1.26
“Material Adverse Effect” means a material adverse effect on (a) the
properties or business, operations or financial condition of any Credit Party,
taken as a whole, or (b) the ability of the subject Credit Party to perform in
any material respect its obligations under the Loan Documents.
1.27 “Maximum
RLOC Availability” means, as of any particular date, the RLOC Commitment minus outstanding
amounts under the RLOC.
1.28 “Net
Worth” means the total stockholders’ or owners’ equity as shown on the balance
sheet of the subject Person at any particular date.
1.29 “Note”
means, the RLOC Note. The terms Note and RLOC Note may be used interchangeably
in this Loan Agreement.
1.30 “Obligations”
means (a) all principal and/or interest which may be due under the Note, and all
other present and future Indebtedness, obligations and liabilities of Borrowers,
and all obligations of any Credit Party, to Lender arising pursuant to this Loan
Agreement and/or any other Loan Document (including, without limitation, any
joinder agreements entered into in accordance with Section 4.1(m)
below), regardless of whether such Indebtedness, obligations or liabilities are
direct, indirect, fixed, contingent, joint or joint and several (including any
interest, fees and other charges under this Loan Agreement or any other Loan
Document, which would accrue but for the filing of a bankruptcy or insolvency
action, whether or not such claim is allowed in such bankruptcy or insolvency
action); (b) all costs incurred by Lender to obtain, preserve, perfect and
enforce the security interest securing payment of such Indebtedness and to
maintain, preserve and collect the Collateral, including, but not limited to,
taxes, assessments, insurance premiums, repairs, attorneys fees and legal
expenses, rent, storage charges, advertising costs, brokerage fees and expenses
of sale; (c) all other obligations or liabilities of any Credit Party owing to
Lender, from time to time, whether now existing or hereafter arising,
regardless of how incurred; and (d) all renewals, extensions and modifications
of any of the foregoing, or any part thereof.
1.31 “Overadvance
Threshold” means 70% of the Market Value of the Alico Stock.
1.32 “Person”
means an individual person, corporation, limited liability company, trust, joint
venture, limited or general partnership, any government or agency or political
subdivision of any government, or any other entity or organization.
1.33 “Pledgor”
means Alico Holding, LLC.
1.34 “Real
Estate” shall have the meaning as set forth in Section 3.8
hereof.
1.35 “Registered
Public Accounting Firm” has the meaning specified in the Securities Laws and
shall be independent of the Borrowers as prescribed by the Securities
Laws.
1.36 “RLOC”
means the revolving line of credit in the amount of the RLOC Commitment as
described under Section 2.1(a)
hereof.
1.37 “RLOC
Commitment” means the lesser of: (a) $20,000,000 and (b) 65% of the Market Value
of the Alico Stock.
1.38 “RLOC
Maturity Date” means August 31, 2011, or such later date as may be determined
pursuant to Section
2.1(a) hereof.
1.39 “RLOC
Note” means the RLOC Note of Borrowers dated as of the Closing Date in favor of
Lender in the amount of the RLOC as set forth in Section 2.1(a)
(substantially in the form of Exhibit 1.39 attached
hereto), as well as any promissory note or notes issued by Borrowers in
substitution, replacement, extension, amendment or renewal of any such
promissory note or notes.
1.40 “SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
1.41 “Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934,
Xxxxxxxx-Xxxxx and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the SEC or the
Public Company Accounting Oversight Board, as each of the foregoing may be
amended in the effect on any applicable date hereunder.
1.42 “Stock
Pledge Agreement” means that certain Stock Pledge Agreement of Pledgor pledging
the Alico Stock.
1.43 “Subordination
Agreement” means those certain agreements, reasonably satisfactory to Lender,
which subordinate all Subordinated Debt to the Loan.
1.44 “Subordinated
Debt” means all Indebtedness owed by Borrowers to any other Credit
Party.
1.45 “Subsidiary”
means any corporation, partnership or other entity in which any Person, directly
or indirectly, owns fifty percent (50%) or more of the stock, capital or other
interests (legal or beneficial) which is effectively controlled, directly or
indirectly, by such Person.
1.46 “Substances”
shall have the meaning as set forth in Section 3.8
hereof.
1.47 “Tax
Indemnification Agreement” means that certain agreement of Borrowers to Lender
dated of even date herewith in which Borrowers agree to indemnify Lender at all
times and hold Lender harmless from against any and all actions or causes of
action, claims, demands, liabilities, loss damage or expense of any kind or
nature including reasonable attorney’s fees, which Lender may at any time
sustain or incur in relation to intangible taxes and documentary stamps arising
as a result of the Loan.
2. The Credit
Facility.
2.1
Loans,
Etc. Lender hereby agrees to make the following credit
facility available to Borrowers, on terms and conditions set forth
herein:
(a) (i) RLOC - Subject to
Borrowers’ compliance with the terms and conditions of this Loan Agreement,
Lender shall make available to Borrowers Advances up to the Maximum RLOC
Availability from the Closing Date through the Expiration Date, which, in
accordance with the RLOC Note, may be advanced, paid down and readvanced.
Advances shall be in minimum increments of not less than $100,000.00. PROVIDED
HOWEVER, that no Advance shall be made under the RLOC if, after giving effect to
such Advance, the Maximum RLOC Availability would be a negative number. The
obligation to repay the RLOC shall be evidenced by the RLOC Note and shall have
the repayment terms and interest rates as set forth therein. All amounts
outstanding under the RLOC shall be due and payable on the RLOC Maturity
Date.
Lender and Borrowers agree that the RLOC Maturity Date may be extended for
additional one year periods in the following manner. Each year commencing May
31, 2009 Borrowers may request in writing that the RLOC Maturity Date be
extended for an additional one year period provided that (i) Borrowers request
the extension in a writing provided to Lender by May 31st of such year and (ii) Lender
shall not have notified Borrowers in writing by July 31st of the same year of Lender’s
intention to terminate the Loan, which decision shall be made in the sole
discretion of Lender. If Lender does not elect to terminate the Loan as provided
above the RLOC Maturity Date shall be deemed extended for one additional
year.
(ii) Overadvances - If
Lender shall at any time determine that the total amount outstanding under the
RLOC exceeds the Overadvance Threshold (70% of the Market Value of the Alico
Stock), it shall immediately notify Borrowers by telephone of the amount by
which the RLOC Commitment (65% of the Market Value of Alico Stock) is exceeded
by the sum of then-outstanding amounts under the RLOC (such amount, the
“Overadvance Amount”). Within forty-eight (48) hours of such notification, or,
if the next succeeding day shall not be a Business Day, then no later than 2:00
p.m. Arcadia, Florida time, on the Business Day immediately following the date
of notification, Borrowers shall (A) pay or prepay an amount in
readily-available funds not less than the Overadvance Amount, to be applied to
amounts owed under the RLOC, or (B) promptly pledge additional Alico Stock
having a Market Value of Alico Stock in an amount not less than the Overadvance
Amount.
(iii) Notice and Manner of
Borrowing -For Advances under the RLOC, Advance Agent shall give Lender
at least one (1) Business Day’s notice of a request for an Advance, specifying
the date and amount thereof. Any such notice (including, but not limited to,
telephonic notice) which Lender believes in good faith to have been given by
Advance Agent (or such other individuals as may be designated in writing by
Borrowers) shall be deemed given by Borrowers. Any Advance made by Lender based
on such notice shall, when wired to an account of any Borrower described in any
written wire transfer instructions delivered by Advance Agent (or such other
individual) in connection herewith, be Loans for all purposes
hereunder.
2.2 Purposes. The
proceeds of the RLOC shall be used by the Borrowers for financing Borrowers’
operating expenses and other general corporate purposes.
2.3 Conditions Precedent.
In no event shall Lender be obligated to make any Advance to Borrowers until all
matters, documents, papers and certificates required hereunder have been
furnished to Lender’s satisfaction or so long as any Event of Default has
occurred and is continuing. In addition to other matters set forth herein, the
following documents and matters shall be required to be executed or performed by
Borrowers and such other Persons as may be necessary and appropriate at or
before Closing (unless as provided otherwise under Section 5 hereof, in
connection with the pledge of Collateral):
(a) This Loan
Agreement, duly executed and delivered;
(b) The Note
and all other Loan Documents, duly executed and delivered;
(c) The
Collateral documents required under Section 5.1 hereof,
duly executed and delivered along with delivery of the certificates evidencing
the Alico Stock and stock powers related thereto. Financing statements covering
any of the Collateral shall be recorded in the appropriate recording offices as
prescribed under the Code or the laws of any other applicable
jurisdiction.
(d) Resolutions,
approved by the directors, managers and/or members of each Borrower and each
Guarantor, in form and substance satisfactory to Lender, authorizing the
execution, delivery and performance of all Loan Documents, on behalf of each
Borrower and Guarantor, as applicable;
(e) A
Certificate of Good Standing for each Borrower and each Guarantor, from its
state of incorporation or formation and satisfactory evidence of each Borrowers’
and each Guarantors’ qualification to do business in any applicable
jurisdictions in which, according to the laws of such jurisdictions, it is
required to qualify to do business;
(f) Evidence,
reasonably satisfactory to Lender, of Borrowers’ compliance with any material
regulations, policies, orders and permitting and licensing requirements to which
Borrowers, its operations and properties, is subject or in the event of any
noncompliance, that such noncompliance will not have a Material Adverse
Effect;
(g) An opinion
of all Credit Parties’ Florida counsel opining, among other things, as to the
due authorization and execution of the Loan Documents and the enforceability of
the Loan Documents in accordance with the terms thereof;
(h) Payment by
Borrowers of all fees and closing costs required hereunder and under the Loan
Documents;
(i) The
insurance policies required under Section 4.1(d)
hereof;
(j) Such other
matters as Lender may reasonably require.
2.4 Lender Stock. On or
before the Closing Date, Borrowers shall own stock in Farm Credit of Southwest
Florida, ACA in an amount equal to $1,000.00. Such stock is at risk and is
retireable only at the discretion of Lender’s board of directors and in
accordance with Lender’s bylaws.
2.5 Fees, Costs, and
Expenses. Borrowers shall pay, on or before the Closing Date
(or subsequent to the Closing Date if required pursuant to the Tax
Indemnification Agreement), any and all costs and expenses reasonably incurred
by Lender in making the Loan available to Borrowers, including, without
limitation, any recording costs, documentary stamp taxes, intangibles taxes and
intangibles recording taxes, and Lender’s reasonable legal expenses and fees,
regardless of whether the transactions contemplated hereunder close, unless
failure to close is the fault of Lender. In addition, Borrowers shall pay Lender
the following fees:
(a) Unused Commitment
Fee. An unused commitment fee in the amount of 12.5 basis points (.125%)
times the
average daily balance of the unused portion of the RLOC Commitment computed
annually in arrears on September 24th of each year commencing September 24, 2009
and payable within fifteen (15) days following each calendar
year-end.
(b) Commitment Fee. At
Closing, Borrowers shall pay a commitment fee of $28,000.00 to
Lender.
3. Representations and
Warranties. To induce Lender to make the Loan, Credit Parties
make the following representations and warranties, which shall survive the
execution and delivery of the Note and other Loan Documents:
3.1 Good Standing.
Borrowers and Guarantors are each duly incorporated or organized, validly
existing, and in good standing under the laws of the State of Florida and each
has the power and authority to own its property and to carry on its business in
each jurisdiction in which it does business.
3.2 Authority and
Compliance. Each Credit Party has full power and authority to execute and
deliver the Loan Documents to which it is a party and to incur and perform its
obligations provided for therein, all of which have been duly authorized by all
proper and necessary action of the appropriate governing body. No consent or
approval of any public authority or other third party is required as a condition
to the validity of any of the Loan Documents, and each Credit Party is in
material compliance with all laws and regulatory requirements to which it is
subject, except to the extent any such non-compliance would not cause a Material
Adverse Effect.
3.3 Binding Agreement.
This Loan Agreement and the other Loan Documents executed by the Credit Parties
constitute valid and legally binding obligations of the Credit Parties,
enforceable in accordance with their terms.
3.4 Litigation. There is
no proceeding involving any Credit Party pending or, to the knowledge of any
Credit Party, threatened, before any court or governmental authority,
agency
or
arbitration authority, except as disclosed to Lender on Schedule 3.4 hereof
and acknowledged by Lender prior to the date of this Loan Agreement; provided
however, such disclosure shall not be required with respect to any matters
which, if determined adversely to the Credit Parties, collectively, would
reasonably be expected to result in liability of less than $500,000 in the
aggregate or matters, which, if determined adversely to any Credit Party would
reasonably be expected to result in liability of less than $500,000 with respect
to any individual matter, in each case excluding amounts with respect to which
an insurance carrier admits full coverage (except for applicable
deductibles).
3.5 No Conflicting
Agreements. There is no article of incorporation, certificate of
formation, partnership certificate, bylaw, partnership agreement or other
document pertaining to the organization, power, or authority of any Credit Party
and no provision of any existing agreement, deed of trust, mortgage, indenture
or contract binding on any Credit Party or affecting its properties, which would
conflict with or in any way prevent the execution, delivery, or carrying out of
the terms of this Loan Agreement and the other Loan Documents except as would
not reasonably be expected to have a Material Adverse Effect.
3.6 Taxes. All taxes and
assessments due and payable by each Credit Party have been paid or are being
contested in good faith by appropriate proceedings and each Credit Party has
filed all tax returns which it is required to file except, in each case, as
would not reasonably be expected to have a Material Adverse Effect.
3.7 Environmental
Matters. To its best knowledge, after due inquiry, each Credit Party
represents and warrants to Lender for itself and its Subsidiaries, except as may
be otherwise disclosed in writing to Lender, that any real estate owned or
leased by it (the “Real Estate”) has never been and is not now being used in
material violation of any material Environmental Laws; that no proceedings are
pending against it concerning any alleged violations of any Environmental Laws
on or related to the Real Estate, that the Real Estate is free of any hazardous
or toxic substance or wastes, including but not limited to, asbestos, PCBs,
petroleum products, fertilizers and pesticides (“Substances”) other than such
Substances as are associated with the commercial operations of the Credit
Parties or their Subsidiaries, except as would not reasonably be expected to
have a Material Adverse Effect; and to the extent that any Substances are kept
or stored on the Real Estate, each Credit Party or its Subsidiary is maintaining
them in accordance with all applicable laws, except where such failure to
maintain would not reasonably be expected to have a Material Adverse Effect;
that if a Credit Party or any Subsidiary of a Credit Party is transporting any
Substances, such transportation is being conducted in material compliance with
all applicable laws; each Credit Party or its Subsidiaries have all required
permits for the use and discharge of any Substances on the Real Estate and all
uses and discharges on the Real Estate are being made in compliance with such
permits; that each Credit Party and its Subsidiaries are in compliance with all
applicable laws regulating the creation, storage, handling, processing and/or
transportation of animal wastes; that, in the event that any of the foregoing
representations and warranties is untrue or is qualified in any way, Credit
Parties have made a complete disclosure to Lender of all material facts
which might
Loan
Agreement
Farm
Credit of Southwest Florida
ACA/Atlantic
Blue Group, Inc., et xx
Xxxx
10 of 38
indicate
an environmental risk or the violation of any Environmental Laws on or related
to the Real Estate.
3.8 Compliance with Laws.
To its best knowledge, after due inquiry, each Credit Party is in compliance
with all federal, state, and local laws (or laws of other jurisdictions to which
it is subject), permitting requirements, regulations and other governmental
requirements applicable to it or to any of its property (including, but not
limited to, laws regulating wetlands), business operations, employees, and
transactions, except, in each case, as would not be reasonably expected to have
a Material Adverse Effect.
3.9 Accurate Financial
Information. The financial information furnished to Lender by each Credit
Party is complete and accurate and no Credit Party has any undisclosed direct or
material contingent liabilities. The financial information provided by each
Credit Party, in connection with such Credit Party’s application to Lender for
the Loan, remains substantially accurate and no Material Adverse Effect or
Internal Control Event has occurred since such information was
furnished.
3.10 Solvency. (i) No
Credit Party is Insolvent; (ii) the pledge of the Collateral as contemplated
herein to Lender will not render any Credit Party Insolvent; (iii) each Credit
Party has made adequate provision for the payment of all of its creditors other
than Lender; and (iv) no Credit Party has entered into this transaction to
provide preferential treatment to Lender or any other of its creditors in
anticipation of seeking relief under federal or state bankruptcy or insolvency
laws.
3.11 ERISA. No employee
benefit plan established or maintained, or to which contributions have been
made, by any Credit Party, which is subject to Part 3 of Subtitle 13 of Title I
of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
had an “accumulated funding deficiency” (as such term is defined in Section 302
of ERISA) as of the last day of the most recent fiscal year of such plan ended
prior to the date hereof, or would have had such an accumulated funding
deficiency on such day if such year were the first year of such plan to which
such Part 3 applied; and no material liability to the Pension Benefit Guaranty
Corporation has been incurred with respect to any such plan by such
party.
To
the best knowledge of each Credit Party, after due inquiry, each such employee
benefit plan (if any exists) complies with all applicable requirements of ERISA
and of the Internal Revenue Code of 1986 as amended (“IRC”) and with all
applicable rulings and regulations issued under the provisions of ERISA and the
IRC except, in each case, where the failure to comply would not be reasonably
expected to have a Material Adverse Effect. This Loan Agreement and the
consummation of the transactions contemplated herein do not and will not involve
any prohibited transaction within the scope of ERISA or Section 4975 of the
IRC.
3.12 Ownership of
Collateral. Pledgor represents and warrants that it is the absolute owner
of the Collateral, as its interests appear, as set forth in Section 5.1 hereof,
and that the Collateral is owned free and clear of all liens, encumbrances, and
security interests of any kind.
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3.13 Material Contracts.
Each Credit Party has performed all of its respective obligations under all
material contracts to which it is a party and which are in effect as of the date
of this Loan Agreement, except for those obligations the failure of which to
comply with is not reasonably expected by such Credit Party to have a Material
Adverse Effect and, to the knowledge of each Credit Party, each party thereto is
in substantial compliance with each such material contract, and each such
material contract is, after giving effect to the transactions contemplated by
this Loan Agreement will be, in full force and effect in accordance with the
terms thereof.
3.14 Trade Relations. To
the knowledge of each Credit Party, there exists no actual or threatened
termination, cancellation or limitation of, or any adverse modification or
change in, the business agreements, contracts or arrangements of any Credit
Party (which agreements, contracts or arrangements extend for a period in excess
of one (1) year) with any material customer, any group of customers, or any
cooperative marketing association or trade exchange whose purchases, marketing
or trade efforts, individually or in the aggregate, are material to the business
of such Credit Party, and which customers or associations are not readily
replaceable in the ordinary course of business.
3.15 Regulation U. No
Credit Party is engaged principally, or as one of its important activities, in
the business of extending credit for the purchasing or carrying margin stock
(within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System).
3.16 Collateral Status.
The Alico Stock is freely tradable, without restrictions or registration, on a
public exchange or quotation system (NASDAQ) and no further action is required
to trade the Alico Stock.
4. Covenants.
4.1 Affirmative
Covenants. During the term of this Loan Agreement:
(a) Continuation of Pre-closing
Conditions, Representations and Warranties. Credit Parties agree that all
conditions precedent to the making of the Loan shall remain satisfied at all
times during the term of this Loan Agreement, and that representations and
warranties made by each Credit Party in the Loan Documents signed by it, shall
be deemed to be made at all times during the term of this Loan Agreement except
to the extent such representations and warranties expressly relate to an earlier
date.
(b) Maintenance. Each Credit
Party shall maintain all of its property in good condition and repair and make
all necessary replacements thereof and repairs thereto, and preserve and
maintain all licenses, trademarks, privileges, permits, franchises, certificates
and the like necessary for the operation of its businesses, and to do or cause
to be done all things necessary to preserve and keep in full force and effect
its existence and its rights, except, in each case, as would not reasonably be
expected to have a Material Adverse Effect. Each Credit Party shall also
maintain such books of record and account in material conformity with all
applicable
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requirements
of any Governmental Authority having regulatory over such Credit Party as the
case may be.
(c) Financial
Statements/Information.
Credit Parties shall furnish to Lender (i) Credit Parties’
quarterly internally-prepared consolidated and consolidating financial
statements, within forty-five (45) days of each of Credit Parties’ fiscal
quarter-ends, and certified by the Chief Financial Officer (or such other
designee reasonably acceptable to Lender) of Atlantic Blue Group, Inc. to fairly
present the financial condition of Credit Parties; (ii) annual audited
consolidated and consolidating financial statements of Credit Parties, prepared
by a Public Accounting Firm acceptable to Lender, together with an unqualified
opinion of such accountants reasonably acceptable to Lender, any management
letters issued by such accountants, all within one hundred fifty (150) days of
each Borrower’s fiscal year-end; (iii) such other information respecting the
financial condition and operations of Credit Parties or any Affiliate or
Subsidiary thereof as Lender may from time to time reasonably request. All
financial statements, opinions, reports and management letters described in
clause (i) and (ii) above shall be prepared in accordance with GAAP and
applicable Securities Laws, if any, and shall be in form and content
satisfactory to Lender, and shall include, without limitation, an income
statement, balance sheet, a cash flow statement and a list of contingent
liabilities and claims reportable under GAAP guidelines. All financial
statements shall be accompanied by a compliance certificate, in the form of
Exhibit 4.1(c)
hereto, setting forth Credit Parties’ compliance with, and actual calculations
for, financial covenants required under Section
4.3 hereof, and signed by the Chief Financial Officer of
Atlantic Blue Group, Inc. (or such other designee reasonably acceptable to
Lender).
(d) Insurance. Each
Credit Party shall maintain with financially sound and reputable insurance
companies insurance of the kinds, covering the risks, and in the amounts usually
carried by entities and individuals engaged in businesses similar to that of the
respective Credit Party. If such insurance is afforded in whole or in part
through self-insurance plan(s), Lender shall be provided with the plan
description and any excess coverage limitations, which shall be reasonably
satisfactory to Lender. If any Credit Party is in default under Article 6 hereof and
Lender is exercising its remedies under Article 7 hereof,
Lender shall have the right to settle and compromise any and all claims under
any policy under which Lender is listed as a loss payee and Borrowers hereby
appoint Lender as its attorney-in-fact, with power to demand, receive, and
receipt for all monies payable thereunder, to execute in the name of any Credit
Party or Lender or both any proof of loss, notice, draft, or other instruments
in connection with such policies or any loss thereunder and generally to do and
perform any and all acts as the applicable Credit Party, but for this
appointment, might or could perform. Unless otherwise agreed, to the extent
Lender is a loss payee under the applicable policy, Lender shall be entitled to
apply the proceeds of any such policies to satisfy the indebtedness arising
under the RLOC. Borrowers shall pay on demand all of Lender’s reasonable costs
and expenses incurred in connection with the collection and disbursement of
insurance proceeds, including, without limitation, inspection, engineering and
legal fees. Lender shall have the right to apply any excess proceeds
toward reduction of the Obligations.
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All
insurance policies provided hereunder shall be in an amount sufficient to avoid
the application of any co-insurance provisions and must include provisions for a
minimum thirty (30) day advance written notice of any intended policy
cancellation or non-renewal. The insurance required hereunder shall be in
addition to, and not a replacement for, the insurance required under any other
Loan Documents.
(e) Payment and Performance of
Obligations. Credit Parties shall pay and perform all Obligations under
this Loan Agreement and the Loan Documents and pay or perform (a) all taxes,
assessments and other governmental charges that may be levied or assessed upon
it or any of its property (including without limitation, withholding, social
security, payroll and similar employment related taxes on the date such taxes
are due), and (b) all other indebtedness, obligations and liabilities in
accordance with customary trade practices; provided that Credit Parties may
contest any item described in the foregoing clauses (a) and (b) in good faith so
long as adequate reserves are maintained with respect thereto in accordance with
GAAP.
(f) Access to Collateral and
Financial Information. Credit Parties shall permit any representative or
agent of Lender to examine and audit any or all of its books and records,
wherever located, upon request by Lender, in each case at reasonable times and
after reasonable notice to the respective Credit Party.
(g) Notification of
Environmental Claims. If any Substances and/or animal wastes shall be
brought upon the Real Estate, Credit Parties shall, or shall cause their
Subsidiaries to, maintain and/or remove them in substantial accordance with all
applicable laws. Credit Parties shall, or shall cause its Subsidiaries to,
promptly take all action which is needed to xxxxx any material environmental
risk or comply with any Environmental Laws on or related to the Real Estate at
its sole expense except where the failure to take action or comply would not
reasonably be expected to have a Material Adverse Effect. Credit Parties will,
or will cause their Subsidiaries to, promptly inform Lender in writing of any
environmental risk or violation of any Environmental Laws on or related to the
Real Estate of which it has knowledge which could reasonably be expected to have
a Material Adverse Effect or the commencement of any proceeding against it or
receipt of any notices by it concerning any alleged violation of Environmental
Laws on or related to the Real Estate. Credit Parties will, or will cause their
Subsidiaries to, immediately advise Lender in writing of (i) any and all
enforcement, cleanup, remedial, removal, or other governmental or regulatory
actions instituted, completed, or, to the knowledge of any Credit Party or any
such Subsidiary threatened pursuant to any applicable federal, state, or local
laws, ordinances or regulations relating to any Substances or animal wastes
affecting its business operations; and (ii) all claims made or, to the knowledge
of any Credit Party or any Subsidiary of any Credit Party threatened by any
Person against it relating to damages, contributions, cost recovery,
compensation, loss or injury resulting from any Substances or animal wastes.
Credit Parties shall, or shall cause their Subsidiaries to, immediately notify
Lender of any substantial remedial action taken by it with respect to its
business operations.
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(h) Purpose of Loan.
Credit Parties shall use the proceeds of the Loan only for the purpose or
purposes represented to Lender in Section 2.2.
(i) Adverse Changes.
Credit Parties shall provide notice to Lender, as soon as possible, and in
any event within five (5) Business Days after it becomes aware of the occurrence
of a Material Adverse Effect, including notice of (i) any material default
occurring with respect to any Credit Party’s material obligations owed to any
other creditor, (ii) acceleration of any part of or demand for payment in full
of any outstanding material obligation earlier than the scheduled date, or (iii)
of the threat by any person, firm, corporation or other entity to whom it is
indebted to declare any material debt due or determine that any material
provision of any agreement between such party and any Credit Party has been
violated. Such notice shall contain a statement setting forth details of such
Material Adverse Effect and the action that is proposed in response
thereto.
(j) Notice of Litigation. Credit Parties
shall promptly notify Lender in the event that any legal action is filed or, to
the knowledge of Credit Parties, threatened against any Credit Party; provided
however, such notice shall not be required with respect to any matters which, if
determined adversely to any Credit Party would reasonably be expected to result
in less than $500,000 excluding amounts with respect to which an insurance
carrier admits full coverage (except for applicable deductibles).
(k) Notice of Default.
Credit Parties shall immediately notify Lender, by telephone followed by written
notice, upon the occurrence of any Event of Default or circumstances which, if
uncured with the lapse of time, would create an Event of Default.
(l) Notice of Change in
Status. Credit Parties shall promptly notify Lender of the change or
conversion of any of their taxpayer status under the rules of the Internal
Revenue Code.
(m) Joinder Agreement.
Each Credit Party shall cause any Subsidiary which is created or acquired
following the Closing Date to enter into a joinder agreement to this Loan
Agreement, a guaranty agreement, subordination agreement and such other
documentation as deemed necessary by Lender whereby such Subsidiary shall agree
to enter into an unlimited guaranty of the Loan, all in a form satisfactory
to Lender.
(n) Subordinated Debt.
Each Credit Party shall cause any indebtedness now or hereafter owing from
it to any other Credit Party to be fully subordinated to the Loan and
Obligations in a form satisfactory to Lender.
(o) ERISA Compliance. Credit Parties
shall maintain any employee benefit plan in substantial compliance with all
applicable requirements of ERISA and of the IRC and with all applicable rulings
and regulations issued under the provisions of ERISA and the IRC, except where
the failure to maintain such employee benefit plan in substantial compliance
with such requirement would be reasonably expected to have a Material Adverse
Effect.
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(p) Internal Control
Event. Credit Parties shall promptly notify Lender of the occurrence of
any Internal Control Event.
4.2 Negative Covenants.
During the term of this Loan Agreement, without prior written consent of
Lender:
(a) Merger, Sale of Assets,
Etc. Except in the ordinary course of business consistent with past
practice, no Credit Party will enter into any merger, corporate reorganization
or consolidation; or make any substantial change in the basic type of business
now conducted by it; sell, lease, transfer, or otherwise dispose of its assets
or cause, suffer or permit the transfer of any material ownership interest or
change of control of its stock.
(b) Name Change, Etc. No
Credit Party will change its name or any name in which it does business, or move
its principal place of business or chief executive office, or change the
location of its books and records, or change its state of formation, without
giving written notice thereof to Lender at least thirty (30) days prior
thereto.
(c) Encumbrance of Assets,
Etc. Except in the ordinary course of business consistent with past
practice, no Credit Party will encumber, pledge, lien, grant a security interest
in or dispose of any of its material assets without giving ten (10) days written
notification to the Lender. No Credit Party shall take any action that would
make it impossible for it to carry out its business as now conducted, or would
cause a Material Adverse Effect.
(d) Judgments, etc.
No Credit Party will allow any number of judgments for the payment of
money in excess of the sum of $500,000 excluding amounts with respect to which
an insurance carrier admits full coverage (except for applicable deductibles),
to remain unsatisfied against it for a period of thirty (30) consecutive days,
unless execution thereof is stayed.
(e) Extension of Loans;
Guaranty. No Credit Party will make any loans, advances, extensions of
credit to, or become a guarantor or surety for, any person, firm, corporation or
any other entity.
(f) Environmental Laws.
Credit Parties will not permit, any Substances or animal wastes to be stored or
maintained on the Real Estate except as provided in Section 4.1(g).
(g) Distributions. No
Credit Party will pay or declare any distribution or dividend if an Event of
Default then-exists, or after giving effect thereto, there shall exist an Event
of Default hereunder.
(h) Margin Stock. No
Credit Party will use any proceeds of the Loan to purchase or carry any margin
stock (within the meaning of Regulation U of the Board of Governors of Federal
Reserve System) or extend any credit to others for the purpose of purchasing or
carrying any such margin stock.
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4.3 Financial Covenants.
During the term of the Loan, Credit Parties shall maintain the following,
on a consolidated basis:
(a) Net Worth. A
Net Worth at all times of not less than $150,000,000.
Compliance
with the foregoing covenants shall be tested quarterly on the last day of each
fiscal quarter of Borrowers.
Unless
otherwise agreed to by Lender, in writing, or otherwise set forth herein,
Borrowers’ compliance with the foregoing financial covenants shall be determined
in accordance with GAAP.
5. Security for
RLOC.
5.1 Collateral. As
security for the RLOC, Borrowers have executed and delivered or will execute and
deliver to Lender appropriate security instruments, financing statements, and
other security documents in form reasonably satisfactory to Lender, sufficient
to create a first perfected security interest in the Collateral and any and all
proceeds thereof, together with such third-party consents as may be deemed
reasonably necessary by Lender and its counsel to give effect to such security
interests.
5.2 Lender Equities. All
equities, if any, owned by the Credit Parties in Lender shall secure the Loan
and may be applied (at Lender’s discretion) against the Loans upon the
occurrence of an Event of Default.
6. Events of Default.
The occurrence of any of the following shall constitute an event of default
(“Event of Default”):
6.1 Payment. Any payment
of principal, interest, or other sum owed to Lender under the Loan Documents or
otherwise due from any Credit Party to Lender is not made when due and such
breach continues for five (5) Business Days after Lender provides written notice
to the Credit Parties of such failure to pay.
6.2 Additional Defaults.
Any provision or covenant of any Loan Document is breached in any material
respect, or any warranty, representation, or statement made or furnished to
Lender by any Credit Party (whenever created) in connection with the Loan, and
the Loan Documents (including any warranty, representation, or statement in any
Credit Party’s financial statements) or to induce Lender to make the Loan, is
untrue or misleading in any material respect or an event of default under any
other Loan Document occurs.
6.3 Cross-Default. Any
material default by any Credit Party occurs under any loan agreement or loan
document with Lender or another financial institution, whether now existing or
hereafter arising, which default is not corrected within the cure period
provided in such agreement, if any.
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6.4 Dissolution or
Bankruptcy. Dissolution, termination of existence, liquidation,
insolvency, business failure, appointment of receiver of any part of the
property of, assignment for the benefit of creditors by, or the commencement of
any proceeding under state or federal bankruptcy laws or other insolvency laws
by any Credit Party or the commencement of an involuntary proceeding against any
Credit Party under state or federal bankruptcy laws which, in each case, is not
dismissed within ninety (90) days after such commencement, or a merger or
consolidation or sale of any Credit Party’s assets, other than a sale of assets
in the ordinary course of business, which has not been consented to by
Lender.
6.5 Change of Control.
There occurs any Change of Control of any Borrower.
7. Lender’s Remedies. In
addition to any remedies available to Lender under the Note and other Loan
Documents, the Lender shall have the following remedies:
7.1 Acceleration. Upon
the occurrence of an Event of Default, Lender shall have the option to terminate
any right of Credit Parties to request Advances under the RLOC and to declare
the entire unpaid principal amount of the Loan, accrued interest and all other
Obligations immediately due and payable, without presentment, demand, or notice
of any kind.
7.2 Remedies. Upon the
occurrence of an Event of Default, Lender shall be entitled to pursue all rights
and remedies available under each of the Loan Documents, as well as all rights
and remedies available at law, or in equity, and such rights and remedies shall
be cumulative. Without in any way limiting the generality of the foregoing,
Lender shall also have the following non-exclusive rights:
(a) Immediate Possession of Non Real
Estate Collateral. To take immediate possession of all Collateral which
is not real estate, whether now owned or hereafter acquired, without notice,
demand, presentment, or resort to legal process, and, for those purposes, to
enter any premises where any such Collateral is located and remove the such
Collateral therefrom;
(b) Assembly of
Collateral. To require Credit Parties to reasonably assemble and make the
Collateral available to Lender at a place to be designated by Lender which is
also reasonably convenient to Borrowers;
(c) Repair of Collateral.
To make any repairs to or otherwise protect the value of the Collateral
which Lender deems reasonably necessary or desirable for the purposes of
sale;
(d) Set-off. To exercise
any and all rights of set-off which Lender may have against any account, fund,
or property of any kind, tangible or intangible, belonging to any Credit Party
which shall be in Lender’s possession or under its control (including equities
owned by Borrowers in Lender as described in Section 5
hereof);
(e) Cure. To cure any
Event of Default in such manner as deemed appropriate by
Lender;
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(f) Security Interest. To
enforce its rights to the Collateral as set forth in the Stock Pledge
Agreement and the Code.
7.3 Proceeds. The
proceeds from any disposition of the Collateral shall be used to satisfy
the following items in the order they are listed:
(a) The
expenses of taking, removing, storing, repairing, holding, maintaining and
selling the Collateral and otherwise enforcing the rights of Lender under the
Loan Documents, including any legal costs and reasonable attorney’s
fees;
(b) The expense
of liquidating or satisfying any liens, security interests, or encumbrances on
the Collateral which may be prior to the security interest of Lender that
Lender, at its option, elects to satisfy;
(c) Any unpaid
fees, accrued interest and other sums due Lender with respect to Loan Documents,
and then the unpaid principal amount of the RLOC.
(d) Any amounts
in excess of the foregoing shall be paid to Borrowers.
7.4 Resort to Credit Party. Lender
may, at its option, pursue any and all rights and remedies directly against any
one or more of the Credit Parties without resort to any Collateral or any other
Credit Party(ies).
7.5 Deficiency. To the
extent the proceeds realized from the disposition of the Collateral shall fail
to satisfy any of the foregoing items, each Credit Party shall remain liable to
pay any deficiency to Lender.
7.6 Advances/Reimbursements.
All amounts advanced by Lender under the Loan Documents, or due Lender as a
result of expenditures reasonably made by Lender, shall bear interest at the
rate applicable to past due principal as specified in the Note or herein from
the date demanded until paid in full. Unless otherwise specified in the Loan
Documents, such advances and other sums, together with accrued interest, shall
be due and payable on demand.
7.7 Default Rate of
Interest. Upon the occurrence of any Event of Default, the Loan shall
thereafter bear interest at a rate equal to the then-current rate specified in
the Note plus two percent
(2.0%) (200 basis points) (the “Default Rate”).
7.8 Late
Charges. If Borrowers shall fail to pay any installment of
principal or interest on or within twenty-nine (29) days after the date on which
such payment shall be due in accordance with the Note, Lender shall be entitled
to collect from Credit Parties, to compensate Lender for documented
administrative and other services associated with such failure, a late charge
equal to one and one-half percent (1.50%) of the amount of such installment;
provided, however, in no event shall late charges, together with default
interest rate charged hereunder, exceed the rate allowed by law.
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8. Damages;
Waiver.
8.1 No Punitive Damages.
Each Party agrees that it shall not have a remedy of punitive or exemplary
damages against any other in any dispute and hereby waives any right or claim to
punitive or exemplary damages it may have now or which may arise in the future
in connection with any dispute, whether the dispute is resolved by arbitration
or judicially.
8.2 Waiver of Jury Trial.
To the extent permitted by law, the Parties hereby waive any right they
may have to a jury trial with regard to a dispute under this Loan Agreement and
any Loan Documents.
9. Multiple
Borrowers.
9.1 Joint and Several
Liability. Each Person identified as a Borrower shall be jointly and
severally liable with each other Borrower for the payment and performance of all
of the Obligations; each such Person shall be deemed to have separately made the
representations and warranties set forth herein; each such Person shall be
responsible jointly and severally with the other Borrowers for all of the
indemnities set forth in any of the Loan Documents; each such Person shall be
responsible for discharging the covenants contained in each of the Loan
Documents applicable to it; and each such Person shall be deemed separately
to have granted a security interest in the types and items of its property
constituting Collateral. Lender shall have the right to deal with any single
Borrower with regard to all matters concerning the rights and obligations of
Lender hereunder and the duties and liabilities of Borrowers hereunder. All
actions or inactions of the officers, managers, members and agents of any
Borrower with regard to the transactions contemplated under any of the Loan
Documents shall be deemed to be binding upon all Borrowers hereunder. Any
Advances or other extensions of credit made to one Borrower shall be deemed to
have been made to and for the benefit of all Borrowers, it being understood that
Borrowers’ businesses are a mutual and collective enterprise and Borrowers
believe that the consolidation of all Obligations under this Agreement will
enhance the aggregate borrowing powers of each Borrower and ease the
administration of their loan relationship with Lender, all to the mutual
advantage of Borrowers. Each Borrower hereby appoints each other Borrower as its
true and lawful attorney-in-fact, with full right and power, for purposes of
exercising all rights of such appointing Borrower hereunder and under applicable
law with regard to the transactions contemplated under the Loan
Documents.
9.2 Unconditional Nature of
Liabilities. Borrowers’ joint and several liability with respect to
the Obligations shall, to the fullest extent permitted by applicable law, be
unconditional irrespective of (i) the validity, enforceability, avoidance or
subordination of any of the Obligations or of any document evidencing or
securing any part of the Obligations, (ii) the absence of any attempt to collect
any of the Obligations from any other Borrower or any Collateral or other
security therefor, or the absence of any other action to enforce the same, (iii)
the waiver, consent, extension, forbearance or granting of any indulgence by
Lender with respect to any Loan Documents, (iv) the failure by Lender to take
any steps to perfect or maintain the perfected status of its security interest
in or Lien upon, or to preserve its right to, any of the
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Collateral
or Lender’s release of any Collateral or its termination or release of any Liens
upon any Collateral, (v) the release or compromise, in whole or in part, of the
liability of any Borrower for the payment of any of the Obligations, (vi) any
amendment or modification of any of the Loan Documents or any waiver of an Event
of Default, (vii) any increase in the amount of the Obligations beyond any
limits imposed herein or any increase or decrease in the amount of any interest,
fees or other charges payable in connection therewith, or (viii) any other
circumstances that might constitute a legal or equitable discharge or
defense of any Borrower. Each Borrower shall be deemed to have waived any
provision under applicable law that might otherwise require Lender to pursue or
exhaust its remedies against any Collateral before pursuing such Borrower. Each
Borrower consents that Lender shall be under no obligation to marshal any assets
in favor of any Borrower or against or in payment of any or all of the
Obligations.
9.3 Subordination. Each
Borrower subordinates any claims, including any right of payment, subrogation,
contribution and indemnity, that it may have from or against any other Borrower,
and any successor or assign of the Borrower, including any trustee, receiver or
debtor-in-possession, howsoever arising, due or owing or whether heretofore, now
or hereafter existing, to the full payment of all of the
Obligations.
10. Miscellaneous.
10.1 Notice. All notices,
demands, or other communications given under the Loan Documents shall be in
writing, and shall be mailed to the address of each Party as set forth below (or
as set forth in any other Loan Document), said mailing to be certified United
States government mail to the mailing address, with notice in each case to be
effective when sent. Either Party must provide written direction to the other in
order to change the address to which said notice shall be sent.
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If
to Lender, to
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Credit of Southwest Florida, ACA
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000
Xxxxx Xxxxxxx Xxxxxx
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Xxxxxxx,
Xxxxxxx 00000
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Attn:
Xxxxx X. Xxxx
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With
copy, to
|
Xxxxxx
Xxxxx, LLC
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|
000
Xxxx XxXxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000
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Attn:
Xxxxx Xxxxxxx
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If
to Credit Parties, to
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Atlantic
Blue Group, Inc.
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X.X.
Xxx 0000
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|
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Xxxx
Xxxxx, Xxxxxxx 00000-0000
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|
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Attn:
X.X. Xxxxxxxxx, Chief Executive
Officer
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10.2 Waiver. No
failure or delay on the part of Lender in exercising any power or right
hereunder, and no failure of Lender to give Credit Parties notice of an Event of
Default, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power preclude any other or further exercise
thereof or the exercise of any other right or power hereunder. No modification
or waiver of any provision of any Loan Document or consent to any departure by
Credit Parties from any Loan Document shall in any event be effective unless the
same shall be in writing, signed by Lender and Borrowers (and any other Credit
Parties that may exist at that time), and such waiver or consent shall be
effective only in the specific instance and for the particular purpose for which
it was given.
10.3 Benefit. The Loan
Documents shall be binding upon and shall inure to the benefit of Borrowers and
Lender and their respective successors and assigns.
10.4 Governing Law and
Jurisdiction. The Loan Documents and this Loan Agreement, unless
otherwise specifically provided therein, and all matters relating thereto, shall
be governed by and construed and interpreted in accordance with the laws of the
State of Florida; PROVIDED
HOWEVER, to the extent that the creation, validity, perfection,
enforceability or priority of any lien or security interest, or the rights and
remedies with respect to any lien or security interest, in the Collateral are
governed by the laws of a jurisdiction other than the State of Florida, then the
laws of such jurisdiction shall govern, except as superseded by applicable
United States Federal Law.
10.5 Assignment,
etc.
(a) Lender may
assign or participate the Loan Documents, in whole or in part, to AgFirst, Farm Credit Bank, its
successors and assigns, to other lending institutions, their successors and
assigns, and/or any other Farm Credit institution organized under the Farm
Credit Act of 1971, as amended, its successors and assigns, without any notice
whatsoever to Borrowers. Credit Parties hereby authorize Lender to disclose all
information (including financial) provided to Lender by such Credit Parties in
connection with the Loan to any actual or prospective assignee or participant of
all or part of the Loan. No Credit Party may assign the Loan Documents or any
interest therein or obligation thereunder without Lender’s prior written
consent.
10.6 Severability.
Invalidity of any one or more of the terms, conditions or provisions of this
Loan Agreement shall in no way affect the balance hereof, which shall remain in
full force and effect.
10.7 Construction.
Whenever the context and construction so require, all words used in the
singular number herein shall be deemed to have been used in the plural, and vice
versa, and the masculine gender shall include the feminine and neuter and the
neuter shall include the masculine and feminine. All references to Sections
shall mean Sections of the Loan Document. The terms
“herein,” “hereinbelow,” “hereunder,” and similar terms are references
to the particular Loan Document in its entirety and not merely the particular
Article, Section, or Exhibit
Loan
Agreement
Farm
Credit of Southwest Florida
ACA/Atlantic
Blue Group, Inc., et xx
Xxxx
22 of 38
in
which any such term appears. Captions are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of the Loan Document nor the intent of any provision thereof. All references to
any Loan Document shall include all amendments, extensions, renewals,
restatements or replacements of the same. The terms “include”, “including” and
similar terms shall be construed as if followed by the phrase “without being
limited to” and “Real Estate”, “Real Property Collateral” and “Collateral” shall
be construed as if followed by the phrase “or any part thereof”. No inference in
favor of any party shall be drawn from the fact that such party has drafted any
portion of the Loan Document. In the event of any inconsistency between the
terms of the Loan Agreement and any other Loan Document (with the exception of
the Note which shall control), the terms of the Loan Agreement shall control,
provided that any provision of any Loan Document, other than the Loan Agreement,
which imposes additional Obligations upon Borrowers or provides additional
rights or remedies to Lender shall be deemed to be supplemental to, and not
inconsistent with, the Loan Agreement.
10.8 Execution in
Counterparts. All Loan Documents may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument, and in making proof of the Loan
Document, it shall not be necessary to produce or account for more than one such
counterpart.
10.9 Examinations/Communications.
Lender’s examinations, inspections, or receipt of information pertaining to the
matters set forth in the Loan Documents shall not in any way be deemed to reduce
the full scope and protection of the Loan Documents or the Obligations of the
Credit Parties arising under the Loan Documents. Credit Parties agree that
Lender shall have no duty or obligation of any nature to (i) make any
investigation, inspection or review regarding any Collateral at any time, with
any such investigation that is undertaken being solely for the benefit of
Lender; or (ii) communicate in any manner with any Credit Party irrespective of
the fact that Lender’s information, or lack thereof, could be material to such
Credit Party’s actions with respect to the Obligations.
10.10 No Third Party
Beneficiaries. The Loan Documents are entered into for the sole benefit
of Credit Parties, their successors and assigns, and no third party shall be
deemed to have any privity of contract nor any right to rely on any Loan
Document to any extent or for any purpose whatsoever, nor shall any other person
have any right of action of any kind hereof or be deemed to be a party
beneficiary.
10.11 No Participation.
Nothing in the Loan Documents, and no action or inaction whatsoever on the part
of Lender through the Closing Date, shall be deemed to make Lender a partner or
joint venturer with any Credit Party, and the Credit Parties indemnify and hold
Lender harmless from and against any and all claims, losses, causes of action,
expenses (including attorneys’ fees) and damages arising from the relationship
between Lender and any Credit Party being construed as or related to be anything
other than that of creditor and debtor. This provision shall survive the
termination of all Loan Documents.
Loan
Agreement
Farm
Credit of Southwest Florida
ACA/Atlantic
Blue Group, Inc., et xx
Xxxx
23 of 38
10.12 Confirmation of Status. Upon
request of Lender from time to time, Credit Parties shall also confirm in
writing the status of the Loan, and the Obligations, and provide other
information reasonably requested by Lender.
10.13 Limitation of
Damages. Credit Parties and Lender mutually agree that no Party shall be
liable to the other for incidental, consequential or speculative damages arising
from any breach of contract, tort or other wrongful conduct in connection with
the negotiation, documentation, administration, or collection of the Loan, but
only for the actual direct loss suffered by said Party.
10.14 Costs, Expenses and
Attorneys’ Fees. Credit Parties
shall pay to Lender immediately upon demand the full amount of all reasonable
out-of-pocket costs and expenses, including reasonable attorneys’ fees, costs of
experts and all other expenses, incurred by Lender (a) in connection with the
negotiation and preparation of this Loan Agreement and each of the other Loan
Documents and any future modifications, renewals, restatements and replacements
thereof (for which legal fees shall be determined at that time) (b) upon the
occurrence of an Event of Default, or of circumstances which, if left uncured,
would result in an Event of Default, the costs of additional appraisals,
environmental studies, title insurance, survey updates and legal reviews, such
costs to be incurred for reasonable cause, (c) the perfection, preservation,
protection and continuation of the liens and security interest granted Lender in
the Collateral and the custody, preservation, protection, repair and operation
of any of the Collateral, (d) the pursuit by Lender of its rights and remedies
under the Loan Documents and applicable law, (e) for payment of taxes
(including, but not limited to, documentary stamp taxes, intangibles taxes, and
any penalties or fines related to failure to pay such amounts timely), expenses,
costs or other amounts levied, incurred or related to the Loan and the
recordation of any Loan Documents, and (f) defending any counterclaim,
cross-claim or other action, or participating in any bankruptcy proceeding,
mediation, arbitration, litigation or dispute resolution of any other nature
involving Lender or any Credit Party or any Collateral and relating to the Loan,
except to the extent Lender has been adjudicated to have engaged in wrongful
conduct.
10.15 Further Assurances.
At any time after the Closing Date, each Credit Party, at the request of Lender,
shall execute and deliver such further documents and agreements and take such
further actions as Lender reasonably deems necessary or appropriate to permit
each transaction contemplated by the Loan Documents to be consummated in
accordance with the provisions thereof and to perfect, preserve, protect and
continue all liens, security interests and rights of Lender under the Loan
Documents, financing statements, continuation statements, new or replacement
Note, and/or agreements supplementing, extending or otherwise modifying the
Note, this Loan Agreement, or the Stock Pledge Agreement, and certificates as to
the amount of the indebtedness evidenced by the Note. Each Credit Party
herein irrevocably with full power of substitution constitutes and appoints
Lender as its attorney-in-fact, such appointment being coupled with an interest
with the right to enforce Lender’s rights with respect to the above further
assurances. Lender shall file any document necessary to release the Liens on the
Collateral described herein, including, without limitation, appropriate UCC
termination
Loan
Agreement
Farm
Credit of Southwest Florida
ACA/Atlantic
Blue Group, Inc., et xx
Xxxx
24 of 38
statements,
upon the repayment in full of all Obligations and the earlier of (i) the
termination of the RLOC Commitment and (ii) the RLOC Maturity Date.
10.16 Incorporation by
Reference. This Loan Agreement is incorporated by reference into various
Loan Documents, and shall govern each and every Loan Document. In executing any
Loan Document, the signatories thereto other than Lender expressly agree to be
bound by all provisions of this Loan Agreement pertaining to the Credit Parties
in their various capacities.
10.17 Integration. This
Loan Agreement and the Loan Documents supersede any and all prior expressions,
written or oral (including, but not limiting to any commitment letter or term
sheets), among the Parties related to, describing or governing the terms of, the
Loans and any transaction related thereto.
10.18 Time of the Essence.
Time is of the essence to all Loan Documents.
10.19 Confidential
Information. For purposes of this paragraph, the term “Confidential
Information” means any and all information that the Borrowers furnish to Lender
(on its own behalf or on behalf of any Subsidiaries created subsequent to the
date hereof), other than information that: (a) is now or subsequently becomes
generally available to the public through no fault or breach on the part of the
Parties hereto; (b) Lender can demonstrate to have had rightfully in its
possession prior to disclosure by the Borrowers; (c) Lender can demonstrate was
independently developed without the use of any Confidential Information; or (d)
Lender rightfully obtains from a third party who has the right to transfer or
disclose it. Lender shall not disclose any Confidential Information to any other
party without the prior written consent of the Borrowers, other than: (i) to
Lender’s officers, directors, employees, agents and advisors, who need to review
the Confidential Information for purposes of this Loan Agreement and any related
matters; (ii) as contemplated by Section 10.5 hereof,
to additional lending institutions, and then only if such institutions have been
informed of this provision and agree to comply with the obligations contained
herein as if binding on them directly, and (iii) as required by law or judicial
process.
11. Additional
Provisions. Riders attached hereto are hereby incorporated into this Loan
Agreement as if set forth verbatim.
[Signature
Page Attached]
Loan
Agreement
Farm
Credit of Southwest Florida
ACA/Atlantic
Blue Group, Inc., et xx
Xxxx
25 of 38
IN
WITNESS WHEREOF, the parties hereto have executed this Loan Agreement under seal
as of the date first above written.
|
BORROWERS:
|
||
|
ATLANTIC
BLUE GROUP, INC., a
Florida
Corporation
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, President
|
||
|
ALICO
HOLDING, LLC, a Nevada limited
liability
company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
By:
|
/s/ Xxx X. Xxxxx, Xx. | |
|
Xxx
X. Xxxxx, Xx., Manager
|
||
|
BLUE
HEAD RANCH, LLC, a Florida
limited
liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
BLUE
HEAD FARMS, LLC, a Florida
limited
liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
BLUE
HEAD CATTLE, LLC, a Florida
limited
liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
Loan
Agreement
Farm
Credit of Southwest Florida
ACA/Atlantic
Blue Group, Inc., et xx
Xxxx
26 of 38
|
TRI-COUNTY
GROVE, LLC, a Florida
limited
liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
PHOENIX
INDUSTRIES, LLC, a Florida
limited
liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
ATLANTICBLUE
WAREHOUSING, LLC,
a
Florida limited liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
BLUE
BOX STORAGE, LLC, a Florida
limited
liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
FOOTMAN
TRAIL, LLC, a Florida
limited
liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
Loan
Agreement
Farm
Credit of Southwest Florida
ACA/Atlantic
Blue Group, Inc., et xx
Xxxx
27 of 38
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GUARANTORS:
|
||
|
ATLANTICBLUE
HOSPITALITY
(Lakeville),
LLC, a Florida limited liability
company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
ATLANTICBLUE
HOSPITALITY (CAS),
LLC,
a Florida limited liability company
|
||
|
By:
|
/s/ XX Xxxxxxxxx | |
|
XX
Xxxxxxxxx, Manager
|
||
|
ATLANTICBLUE
DEVELOPMENT, INC.
a
Florida corporation
|
||
|
By:
|
/s/ Xxxx Xxxx Xxxxxx | |
|
Xxxx
Xxxx Xxxxxx, President
|
||
Loan
Agreement
Farm
Credit of Southwest Florida
ACA/Atlantic
Blue Group, Inc., et xx
Xxxx
28 of 38
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LENDER:
|
||
|
FARM
CREDIT OF SOUTHWEST
FLORIDA,
ACA for itself and as
agent/nominee
for other lending institutions
having
an interest, direct or indirect, in the
Loans
from time to time
|
||
| /s/ Xxxx X. Xxxxxxx | ||
|
By:
|
Xxxx
X. Xxxxxxx
|
|
|
Its:
|
Vice
President
|
|
Loan
Agreement
Farm Credit of
Southwest Florida
ACA/Atlantic Blue Group, Inc., et xx
ACA/Atlantic Blue Group, Inc., et xx
Xxxx 29 of
38
