Exhibit 99.7
SUNTRUST Commercial Note
Florida
Borrower: Atlantic Blue Trust, Inc., Tri-County Grove, LLC, Date: May 5, 2006
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Blue Head Ranch, LLC, Alico Holding, LLC
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Borrower's Address: 000 X. Xxxxxxx Xxx., Xxxx Xxxxx, Xxxxxxx 00000
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Loan Amount: Twenty Million and No/100 Dollars ($20,000,000.00)
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Account No. 0051037933 Note No. 18/26 |_| Original |X| Renewal
Officer: Xxxxxxx Xxxx 13284
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For value received, the borrower(s) named above, whether one or more (the
"Borrower"), jointly and severally promise to pay to the order of SunTrust Bank,
a Georgia banking corporation ("SunTrust") at any of its offices, or at such
place as SunTrust may in writing designate, without offset in U.S. Dollars in
immediately available funds, the Loan Amount shown above, or the total of all
amounts advanced under this Note if less than the full Loan Amount is advanced,
plus interest and any other amounts due, upon the terms specified below.
Note Type Repayment Terms
|_| Demand Note This obligation is payable on demand.
SunTrust shall have the right to demand payment at any
time in its sole and absolute discretion. Principal is
payable on demand; accrued interest will be payable on
the _____ day of each _________________ beginning on
____________, _________ and on demand.
|_| Time Note |_| One payment of all principal, interest and any
other amounts owed will be due and payable on
__________________, _____________________.
|_| Accrued interest will be payable on the _______
day of each ____________ beginning on ___________,
____________. Principal plus any accrued and
unpaid interest and any other amounts owed will
be due and payable on _______________, _________.
|_| Fixed Payment Fixed payment schedule consisting of _____ consecutive
Term Note _________ installments of principal and interest of
$__________ each, payable on the ______ day of each
_______, beginning ___________, _______________, and a
final payment equal to the unpaid balance of principal
plus accrued and unpaid interest and any other amounts
owed due and payable on ____________, ______________.
|_| Variable Variable payment schedule consisting of _____________
Payment consecutive ________ installments of principal of
Term Note $___________ each, plus accrued interest, payable on the
________ day of each ___________, beginning __________,
__________, and a final payment of $________ plus
accrued and unpaid interest and any other amounts owed
due and payable on __________, __________.
|X| Master |_| This is a closed end transaction; Borrower may
Borrowing borrow up to the Loan Amount but may not reborrow
Note amounts that have been repaid.
|X| This is an open end revolving line of credit;
Borrower may borrow an aggregate principal
amount up to the Loan Amount outstanding at any
one time.
|X| Principal is due at maturity, but the
Borrower shall be liable for only so much of the
Loan Amount as shall be equal to the total
amount advanced to the Borrower by SunTrust from
time to time, less all payments made by or for
the Borrower and applied by SunTrust to
principal, plus interest on each such advance,
and any other amounts due. Advances under this
Note shall be recorded and maintained by
SunTrust in its internal records and such
records shall be conclusive of the principal and
interest owed by Borrower unless there is a
material error in such records. Accrued interest
will be payable on the 5th day of each quarter
beginning on July 5, 2006, with all accrued
interest due and payable on the maturity date.
This Master Borrowing arrangement will terminate
on April 5, 2008 (the "maturity date").
|_| This obligation is payable on demand, but
the Borrower shall be liable for only so much of
the Loan Amount as shall be equal to the total
amount advanced to the Borrower by SunTrust from
time to time, less all payments made by or for
the Borrower and applied by SunTrust to
principal, plus interest on each such advance,
and any other amounts due. Advances under this
Note shall be recorded and maintained by
SunTrust in its internal records, and such
records shall be conclusive of the principal and
interest owed by Borrower unless there is a
material error in such records. SunTrust shall
have no obligation to make advances, and all
amounts outstanding are due on demand. Accrued
interest will be payable on the ___ day of each
______ beginning on _______ ,_______ , and on
demand. This Master Borrowing arrangement may
be terminated without notice to the undersigned
by SunTrust.
|_| Payout Requirement for Revolving Line.
Borrower agrees that for each twelve-month or
364-day period that this Master Revolving line
is available, beginning with the date of this
Note, Borrower shall maintain a zero balance
outstanding on the line for at least one 30
consecutive day period.
|_| Irregular ------------------------------------------------------
Payment ------------------------------------------------------
Schedule ------------------------------------------------------
Note ------------------------------------------------------
|X| Additional Terms And Conditions
This Note is governed by additional terms and conditions contained in a(n)
Agreement to Commercial Note between the Borrower and SunTrust dated May 5,
2006 and any modifications, renewals, extensions or replacements thereof (the
"Agreement"). In the event of a conflict between any term or condition
contained in this Note and in the Agreement, such term or condition of the
Agreement shall control.
Interest
Interest will accrue on an actual 360 basis (on the actual number of days
elapsed over a year of 360 days ). Interest shall accrue from the date of
disbursement on the unpaid balance and shall continue to accrue until this
Note is paid in full.
Subject to the above, interest per annum payable on this Note (the "Rate")
shall be:
|_| Fixed: ________% per annum fixed for the term of the loan.
|X| Variable: This is a variable rate transaction. The interest rate
is prospectively subject to increase or decrease without
prior notice and is based on the following Index.
|_| SunTrust Prime Rate, the Prime Rate as established from time to
time by SunTrust.
|_| Wall Street Journal Prime, the Prime Rate published in the
Money Rates section of the Wall Street Journal from time to
time.
|X| The LIBOR Rate as defined on the attached Addendum A.
|_| ________________________________________________________.
Note: The "Prime Rate" is a reference for fixing the lending rate for
commercial loans. The Prime Rate is a reference rate only and does not
necessarily represent the lowest rate of interest charged for
commercial borrowings. If the Index is the SunTrust Prime Rate, the
Index is subject to increase or decrease at the sole option of
SunTrust.
The Rate shall equal |_| the Index.
|X| the Index plus 1.15% per annum.
|_| _____% of the Index plus _____% per annum.
|_| _________________________________________.
Adjustments to the Rate shall be effective:
|_| as of the date the Index changes.
|_| as of the date referenced on the attached
Addendum A.
|X| monthly on the 1st day of each month, or
the next business day if such date does not
fall on a business day, beginning June 1, 2006.
The Rate shall not exceed 18.00% if the Loan Amount is $500,000 or
less, or 24% if the Loan Amount is over $500,000.
|_| Renewal
This Note represents a renewal and amendment of note number ____________ dated
___________ dated ______, __________ , executed by Borrower and does not, and is
not intended to, constitute a novation of the indebtedness evidenced by such
note.
Collateral
Unless otherwise agreed in writing, any collateral pledged to SunTrust to secure
any of the existing or future liabilities of the Borrower to SunTrust shall also
secure this Note. To the extent permitted by law, the Borrower grants to
SunTrust a security interest in and a lien upon all deposits or investments
maintained by the Borrower with SunTrust and any affiliates thereof.
The collateral for this Note includes, but is not limited to, the following:
Alico, Inc. Stock Certificates totaling 600,000 shares as more fully described
in Security Agreement of even date.
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All of the foregoing security is referred to collectively as the "Collateral".
The Collateral is security for the payment of this Note and any other
liability (including overdrafts and future advances) of the Borrower to
SunTrust, however evidenced, now existing or hereafter incurred, matured or
unmatured, direct or indirect, absolute or contingent, several, joint, or
joint and several, including any extensions, modifications or renewals. The
proceeds of any Collateral may be applied against the liabilities of the
Borrower to SunTrust in such order as SunTrust deems proper.
Loan Purpose And Updated Financial Information Required
The Borrower warrants and represents that the loan evidenced by this Note is
being made solely for the purpose of acquiring or carrying on a business,
professional or commercial activity or acquiring real or personal property as an
investment (other than a personal investment) or for carrying on an investment
activity (other than a personal investment activity). The Borrower agrees to
provide to SunTrust updated financial information, including, but not limited
to, tax returns, current financial statements in form satisfactory to SunTrust,
as well as additional information, reports or schedules (financial or
otherwise), all as SunTrust may from time to time request.
Representations and Warranties
This Note has been duly executed and delivered by Borrower, constitutes
Borrower's valid and legally binding obligations and is enforceable in
accordance with its terms against Borrower. The execution, delivery and
performance of this Note and the consummation of the transaction contemplated
will not, with or without the giving of notice or the lapse of time, (a) violate
any material law applicable to Borrower, (b) violate any judgment, writ,
injunction or order of any court or governmental body or officer applicable to
Borrower, (c) violate or result in the breach of any material agreement to which
Borrower is a party or (d) violate Borrower's charter or bylaws as applicable.
No consent, approval, license, permit or other authorization of any third party
or any governmental body or officer is required for the valid and lawful
execution and delivery of this Note.
Default, Acceleration And Setoff
This section is not applicable to notes payable on demand.
An "event of default" shall occur hereunder upon the occurrence of any one or
more of the following events or conditions:
a. the failure by any Obligor (as defined below) to pay when due,
whether by acceleration or otherwise, any amount owed under this
Note;
b. the occurrence of any event of default under any agreement or loan
document executed in conjunction with this Note or the failure of any
Obligor to perform any covenant, promise or obligation contained in
this Note or any other agreement to which any Obligor and SunTrust
are parties;
c. the breach of any of Obligor's representation or warranties contained
in this Note or any other agreement with SunTrust;
d. the failure of any Obligor to pay when due any amount owed to any
creditor other than SunTrust under a written agreement calling for
the payment of money;
e. the death, declaration of incompetency, dissolution, liquidation,
merger, consolidation, termination or suspension of usual business of
any Obligor;
f. any person or entity, or any group of related persons or entities,
shall have or obtain legal or beneficial ownership of a majority of
the outstanding voting securities or rights of any Obligor that is
not a natural person, other than any person or entity, or any group
of related persons or entities that has such majority ownership as of
the date of this Note;
g. the insolvency or inability to pay debts as they mature of any
Obligor, the application for the appointment of a receiver for any
Obligor, the filing of a petition or the commencement of a proceeding
by or against any Obligor under any provision of any applicable
Bankruptcy Code or other insolvency law or statute, or any assignment
for the benefit of creditors by or against any Obligor;
h. the entry of a judgment or the issuance or service of any attachment,
levy or garnishment against any Obligor or the property of any
Obligor or the repossession or seizure of property of any Obligor;
i. a determination by SunTrust that a material adverse change in the
financial condition of any Obligor has occurred since the date of
this Note;
j. any Obligor commits fraud or makes a material misrepresentation at
any time in connection with this Note or any Collateral;
k. any deterioration or impairment of the Collateral or any decline or
depreciation in the value of the Collateral which causes the
Collateral in the judgment of SunTrust to become unsatisfactory as to
character or value;
l. the sale or transfer by any Obligor of all or substantially all of
such Obligor's assets other than in the ordinary course of business;
or
m. any other act or circumstances leading SunTrust to deem itself
insecure.
If an event of default occurs, or in the event of non-payment of this Note in
full at maturity, the entire unpaid balance of this Note shall, at the option of
SunTrust, become immediately due and payable, without notice or demand and no
future advances will be permitted. The entire unpaid balance of this Note shall
automatically become immediately due and payable without notice or demand upon
the occurrence of an event of default under section g above. Upon the occurrence
of an event of default, SunTrust shall be entitled to interest on the unpaid
balance of this Note at the lesser of (a) the Rate plus 4.00% per annum or (b)
the maximum rate allowed by law (the "Default Rate") until paid in full. To the
extent permitted by law, upon default SunTrust will have the right, in addition
to all other remedies permitted by law, to set off the amount due under this
Note or due under any other obligation to SunTrust against any and all accounts,
whether checking or savings or otherwise, credits, money, stocks, bonds or other
security or property of any nature whatsoever on deposit with, held by, owed by,
or in the possession of, SunTrust to the credit of or for the account of any
Obligor, without notice to or consent by any Obligor. The remedies provided in
this Note and any other agreement between SunTrust and any Obligor are
cumulative and not exclusive of any other remedies provided by law.
Setoff and Other Remedies Applicable to Notes Payable on Demand
To the extent permitted by law, if payment is not made upon demand, SunTrust
will have the right, in addition to all other remedies permitted by law, to
set off the amount due under this Note or due under any other obligation of
Borrower to SunTrust against any and all accounts, whether checking or savings
or otherwise, credits, money, stocks, bonds or other security or property of
any nature whatsoever on deposit with, held by, owed by, or in the possession
of, SunTrust to the credit of or for the account of any Obligor (as defined
below), without notice to or consent by Obligor. If payment is not made upon
demand, Borrower shall be deemed to be in default and SunTrust shall be
entitled to interest on the unpaid balance of this Note at the lesser of (a)
the Rate plus 4.00% per annum or (b) the maximum rate allowed by law (the
"Default Rate") from the time of demand until paid in full. The remedies
provided in this Note and any other agreement between SunTrust and any Obligor
are cumulative and not exclusive of any other remedies provided by law.
Late Charges And Other Authorized Fees And Charges
As used herein the term "Obligor" shall individually and collectively refer to
the Borrower and any person or entity that is primarily or secondarily liable on
this Note and any person or entity that has conveyed or may hereafter convey any
security interest or lien to SunTrust in any real or personal property to secure
payment of this Note. If any portion of a payment is at least ten (10) days past
due, the Borrower agrees to pay a late charge of 5% of the amount which is past
due. Unless prohibited by applicable law, the Borrower agrees to pay the fee
established by SunTrust from time to time for returned checks if a payment is
made on this Note with a check and the check is dishonored for any reason after
the second presentment. In addition to any other amounts owed under the terms of
this Note, the Borrower agrees to pay those fees and charges disclosed in the
attached Disbursements and Charges Summary which is incorporated in this Note by
reference and, as permitted by applicable law, the Borrower agrees to pay the
following: (a) all expenses, including, without limitation, any and all costs
incurred by SunTrust related to default, all court costs and out-of-pocket
collection expenses, whether suit be brought or not, incurred in collecting this
Note; (b) all costs incurred in evaluating, preserving or disposing of any
Collateral granted as security for the payment of this Note, including the cost
of any audits, appraisals, appraisal updates, reappraisals or environmental
inspections which SunTrust from time to time in its sole discretion may deem
necessary; (c) any premiums for property insurance purchased on behalf of the
Borrower or on behalf of the owner(s) of any Collateral pursuant to any security
instrument relating to any Collateral; (d) any expenses or costs incurred in
defending any claim arising out of the execution of this Note or the obligation
which it evidences, or otherwise involving the employment by SunTrust of
attorneys with respect to this Note and the obligations it evidences; and (e)
any other charges permitted by applicable law. The Borrower agrees to pay such
amounts on demand, or, at SunTrust's option, such amounts may be added to the
unpaid balance of the Note and shall accrue interest at the stated Rate. Upon
the occurrence of an event of default, or after demand and failure to pay if
this Note is payable on demand, interest shall accrue at the Default Rate.
|_| Prepayment Provisions
This Note is subject to prepayment conditions as described in the attached
Prepayment Rider of even date which is incorporated herein by reference.
Waivers
The Borrower and each other Obligor waive presentment, demand, protest, notice
of protest and notice of dishonor and waive all exemptions, whether homestead or
otherwise, as to the obligations evidenced by this Note and waive any discharge
or defenses based on suretyship or impairment of Collateral or of recourse. The
Borrower specifically waives his/her homestead rights under the laws and
Constitution of the State of Florida. The Borrower and each other Obligor waive
any rights to require SunTrust to proceed against any other Obligor or any
Collateral before proceeding against the Borrower or any of them, or any other
Obligor, and agree that without notice to any Obligor and without affecting any
Obligor's liability, SunTrust, at any time or times, may grant extensions of the
time for payment or other indulgences to any Obligor or permit the renewal or
modification of this Note, or permit the substitution, exchange or release of
any Collateral for this Note and may add or release any Obligor primarily or
secondarily liable. The Borrower and each other Obligor agree that SunTrust may
apply all monies made available to it from any part of the proceeds of the
disposition of any Collateral or by exercise of the right of setoff either to
the obligations under this Note or to any other obligations of any Obligor to
SunTrust, as SunTrust may elect from time to time.
Waiver of Jury Trial
THE BORROWER AND SUNTRUST HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION,
WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, BASED HEREON OR ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY OTHER DOCUMENT OR INSTRUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS NOTE, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUNTRUST
ENTERING INTO OR ACCEPTING THIS NOTE. FURTHER, THE BORROWER HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR AGENT OF SUNTRUST, NOR SUNTRUST'S COUNSEL, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUNTRUST WOULD NOT, IN THE EVENT OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
Patriot Act Notice
SunTrust hereby notifies Borrower that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)),
SunTrust may be required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow SunTrust to identify the Borrower
in accordance with the Act.
Miscellaneous
All amounts received by SunTrust shall be applied to expenses, late fees and
interest before principal or in any other order as determined by SunTrust, in
its sole discretion, as permitted by law. Any provision of this Note which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Note. No amendment, modification, termination or waiver of any provision of
this Note, nor consent to any departure by the Borrower from any term of this
Note, shall in any event be effective unless it is in writing and signed by an
authorized officer of SunTrust, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. If the interest Rate is tied to an external index and the index becomes
unavailable during the term of this loan, SunTrust may, in its sole and absolute
discretion, designate a substitute index with notice to the Borrower. No failure
or delay on the part of SunTrust to exercise any right, power or remedy under
this Note shall be construed as a waiver of the right to exercise the same or
any other right at any time. The captions of the paragraphs of this Note are for
convenience only and shall not be deeded to constitute a part hereof or used in
construing the intent of the parties. All representations, warranties, covenants
and agreements contained herein or made in writing by Borrower in connection
herewith shall survive the execution and delivery of this Note and any other
agreement, document or writing relating to or arising out of any of the
foregoing. All notices or communications given to Borrower pursuant to the terms
of this Note shall be in writing and given to Borrower at Borrower's address
stated above unless Borrower notifies SunTrust in writing of a different
address. Unless otherwise specifically provided herein to the contrary, such
written notices and communications shall be delivered by hand or overnight
courier service, or mailed by first-class mail, postage prepaid, addressed to
the Borrower at the address referred to herein. Any written notice delivered by
hand or by overnight courier service shall be deemed given or received upon
receipt. Any written notice delivered by U.S. Mail shall be deemed given or
received on the third (3rd) business day after being deposited in the U.S. Mail.
Notwithstanding any provision of this Note or any loan document executed in
connection with this Note to the contrary, the Borrower and SunTrust intend that
no provision of this Note or any loan document executed in connection with this
Note be interpreted, construed, applied, or enforced in a way that will permit
or require the payment or collection of interest in excess of the highest rate
of interest permitted to be paid or collected by the laws of the jurisdiction
indicated below, or federal law if federal law preempts the law of such
jurisdiction with respect to this transaction (the "Maximum Permitted Rate").
If, however, any such provision is so interpreted, construed, applied, or
enforced, Borrower and SunTrust intend (a) that such provision automatically
shall be deemed revised so as to require payment only of interest at the Maximum
Permitted Rate; and (b) if interest payments in excess of the Maximum Permitted
Rate have been received, that the amount of such excess shall be deemed credited
retroactively in reduction of the then-outstanding principal amount of this
obligation, together with interest at the Maximum Permitted Rate. In connection
with all calculations to determine the Maximum Permitted Rate, the Borrower and
SunTrust Intend (a) that all charges be excluded to the extent they are properly
excludable under the usury laws of such jurisdiction or the United States, as
they from time to time are determined to this obligation; and (b) that all
charges that may be spread in the manner provided by statute of the jurisdiction
indicated or any similar law, be so spread.
Liability, Successors And Assigns And Choice Of Law
Each Borrower shall be jointly and severally obligated and liable on this Note.
This Note shall apply to and bind each of the Borrower's heirs, personal
representatives, successors and permitted assigns and shall inure to the benefit
of SunTrust, its successors and assigns. Notwithstanding the foregoing, Borrower
shall not assign Borrower's rights or obligations under this Note with
SunTrust's prior written consent. This Note shall be governed by applicable
federal law and the internal laws of the state of Florida. The Borrower agrees
that certain material events and occurrences relating to this Note bear a
reasonable relationship to the laws of Florida and the validity, terms,
performance and enforcement of this Note shall be governed by the internal laws
of Florida which are applicable to agreements which are negotiated, executed,
delivered and performed solely in Florida. Unless applicable law provides
otherwise, in the event of any legal proceeding arising out of or related to
this Note, Borrower consents to the jurisdiction and venue of any court located
in the state of Florida.
Documentary and Intangible Taxes
In the event that any intangible tax or documentary stamp tax is due from
SunTrust to any state or other governmental agency or authority because of the
execution or holding of this Note, the Borrower shall, upon demand, reimburse
SunTrust for any such tax paid.
Documentary Stamp Tax Statement: Florida Documentary Stamp Tax required by law
in the amount of Two Thousand Four Hundred Fifty Dollars and no cents has been
paid or will be paid directly to the Department of Revenue, Certificate of
Registration #00-0000000.
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Garnishment of Wages
For Individual Borrower(s): BORROWER HEREBY CONSENTS TO THE GARNISHMENT OF
HIS/HER WAGES.
By signing below under seal, the Borrower agrees to the terms of this Note and
the disbursement of proceeds as described in the Disbursements and Charges
Summary form provided in connection with this transaction.
Individual Borrower(s): Non-Individual Borrower(s):
(Seal) Atlantic Blue Trust, Inc.
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Borrower Signature Borrower
By: /s/ X.X. Xxxxxxxxx
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Name, printed or typed
(Seal) X.X. Xxxxxxxxx as President
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Borrower Signature Name and title, printed or typed
Tri-County Grove, LLC
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Name, printed or typed Borrower
(Seal) By: /s/ X.X. Xxxxxxxxx
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Borrower Signature
X.X. Xxxxxxxxx as Manager
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Name, printed or typed Name and title, printed or typed
(Seal) Blue Head Ranch, LLC
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Borrower Signature Borrower
By: /s/ X.X. Xxxxxxxxx
-------------------------- ----------------------------
Name, printed or typed
X.X. Xxxxxxxxx as Manager
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Name and title, printed or typed
Alico Holding, LLC
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By: /s/ X.X. Xxxxxxxxx
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X.X. Xxxxxxxxx as Manager
SUNTRUST Addendum A to Note
LIBOR Index Rate (104)
SECTION 1
Definitions. As used in this Addendum, the following terms shall have the
meanings set forth below:
"Bank" shall mean SunTrust Bank and its successors and assigns.
"Borrower" shall collectively and individually refer to the maker of
the attached note dated May 5, 2006 ("Note"). The terms of this
Addendum are hereby incorporated into the Note and in the event of any
conflict between the terms of the Note and the terms of this Addendum,
the terms of this Addendum shall control.
"Business Day" shall mean, with respect to Interest Periods applicable
to the LIBOR Rate, a day on which the Bank is open for business and on
which dealings in U.S. dollar deposits are carried on in the London
Inter-Bank Market.
"Interest Period" shall mean a period of one (1) month, provided that
(i) the initial Interest Period may be less than one month, depending
on the initial funding date and (ii) no Interest Period shall extend
beyond the maturity date of the Note.
"Interest Rate Determination Date" shall mean the date the Note is
initially funded and the first Business Day of each calendar month
thereafter.
"LIBOR Rate" shall mean that rate per annum effective on any Interest
Rate Determination Date which is equal to the quotient of:
(i) the rate per annum equal to the offered rate for
deposits in U.S. dollars for a one (1) month
period, which rate appears on that page of
Bloomberg reporting service, or such similar
service as determined by the Bank, that displays
British Bankers' Association interest settlement
rates for deposits in U.S. Dollars, as of 11:00
A.M. (London, England, time) two (2) Business Days
prior to the Interest Rate Determination Date;
provided, that if no such offered rate appears on
such page, the rate used for such Interest Period
will be the per annum rate of interest determined
by the Bank to be the rate at which U.S. dollar
deposits for the Interest Period are offered to the
Bank in the London Inter-Bank Market as of 11:00
A.M. (London, England, time), on the day which is
two (2) Business Days prior to the Interest Rate
Determination Date, divided by
(ii) a percentage equal to 1.00 minus the maximum
reserve percentages (including any emergency,
supplemental, special or other marginal reserves)
expressed as a decimal (rounded upward to the next
1/100th of 1%) in effect on any day to which the
Bank is subject with respect to any LIBOR loan
pursuant to regulations issued by the Board of
Governors of the Federal Reserve System with
respect to eurocurrency funding (currently referred
to as "eurocurrency liabilities" under Regulation
D). This percentage will be adjusted automatically
on and as of the effective date of any change in
any reserve percentage.
"Prime Rate" shall mean the publicly announced prime lending rate of
the Bank from time to time in effect, which rate may not be the lowest
or best lending rate made available by the Bank or, if the Note is
governed by Subtitle 10 of Title 12 of the Commercial Law Article of
the Annotated Code of Maryland, "Prime Rate" shall mean the Wall Street
Journal Prime Rate, which is the Prime Rate published in the "Money
Rates" section of the Wall Street Journal from time to time.
SECTION 2
Interest. The Borrower shall pay interest upon the unpaid principal balance of
the Note at the LIBOR Rate plus the margin provided in the Note. Interest shall
be due and payable as provided in the Note and shall be calculated as described
in the Note. The interest rate shall remain fixed during each month based upon
the interest rate established pursuant to this Addendum on the applicable
Interest Rate Determination Date.
SECTION 3
Additional Costs. In the event that any applicable law or regulation or the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of law) (i) shall change the basis of taxation of payments to the Bank of
any amounts payable by the Borrower hereunder (other than taxes imposed on the
overall net income of the Bank) or (ii) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by the Bank, or (iii) shall
impose any other condition with respect to the Note, and the result of any of
the foregoing is to increase the cost to the Bank of making or maintaining the
Note or to reduce any amount receivable by the Bank hereunder, and the Bank
determines that such increased costs or reduction in amount receivable was
attributable to the LIBOR Rate basis used to establish the interest rate
hereunder, then the Borrower shall from time to time, upon demand by the Bank,
pay to the Bank additional amounts sufficient to compensate the Bank for such
increased costs (the "Additional Costs"). A detailed statement as to the amount
of such Additional Costs, prepared in good faith and submitted to the Borrower
by the Bank, shall be conclusive and binding in the absence of manifest error.
SECTION 4
Unavailability of Dollar Deposits. If the Bank determines in its sole discretion
at any time (the "Determination Date") that it can no longer make, fund or
maintain LIBOR-based loans for any reason, including without limitation
illegality, or the LIBOR Rate cannot be ascertained or does not accurately
reflect the Bank's cost of funds, or the Bank would be subject to Additional
Costs that cannot be recovered from the Borrower, then the Bank will notify the
Borrower and thereafter will have no obligation to make, fund or maintain
LIBOR-based loans. Upon such Determination Date the Note will be converted to a
variable rate loan based upon the Prime Rate. Thereafter the interest rate on
the Note shall adjust simultaneously with any fluctuation in the Prime Rate.
Individual Non-Individual
(Seal) Atlantic Blue Trust, Inc.
-------------------------- -------------------------------
By: /s/ X.X. Xxxxxxxxx
-------------------------- (Seal) ----------------------------
X.X. Xxxxxxxxx as President
------------------------------
Name and title, printed or typed
Tri-County Grove, LLC
-------------------------------
By: /s/ X.X. Xxxxxxxxx
----------------------------
X.X. Xxxxxxxxx as Manager
-------------------------------
Name and title, printed or typed
Blue Head Ranch, LLC
-------------------------------
By: /s/ X.X. Xxxxxxxxx
----------------------------
X.X. Xxxxxxxxx as Manager
-------------------------
Alico Holding, LLC
-------------------------------
By: /s/ X.X. Xxxxxxxxx
----------------------------
X.X. Xxxxxxxxx as Manager
SunTrust
Agreement to Commercial Note
This Agreement dated May 5, 2006 between Atlantic Blue Trust, Inc., Tri-County
Grove, LLC, Blue Head Ranch, LLC, Alico Holding, LLC ("Borrower") and SunTrust
Bank ("SunTrust") constitutes the "Agreement" referenced under "Additional Terms
and Conditions" in the Commercial Note dated May 5, 2006 in the Loan Amount
equal to $20,000,000.00. The terms and conditions of this Agreement and the
terms and conditions of the Note constitute the entire agreement between
Borrower and SunTrust. All defined terms used herein that are not defined herein
shall have the meanings ascribed to such terms in the above referenced
Commercial Note.
Borrower and SunTrust hereby agree to the following terms and conditions:
I. AFFIRMATIVE COVENANTS
A. Financial Information. Borrower shall deliver the following financial
information to SunTrust as indicated below:
Borrower's Annual Consolidated Financial Statement that has been
audited by a certified public accountant acceptable to SunTrust. Such
Financial Statement shall be prepared on a GAAP (generally accepted
accounting principles) basis and shall be delivered to SunTrust within
One Hundred Fifty (150) days after Borrower's fiscal year-end,
commencing with the fiscal year ending August 31, 2006. "Financial
Statement" shall include at a minimum, a balance sheet, income
statement, statement of retained earnings, statement of cash flows,
footnotes, appropriate supporting schedules and other information
requested by SunTrust.
Borrower's unaudited quarterly Financial Statement, certified by an
authorized officer of Borrower as to its accuracy, shall be delivered
to SunTrust within Ninety (90) days after the close of each fiscal
quarter beginning with the fiscal quarter ending May 31, 2006.
Borrower shall deliver within five (5) days of such request, any
additional financial information with respect to Borrower as SunTrust
may reasonably request.
B. Notification. Borrower shall immediately notify SunTrust of (i) the
occurrence of any event of default (or any circumstances which, with
notice or the passage of time or both, would constitute an event of
default) under the Note, (ii) the commencement of any action, suit, or
proceeding or any other matter that could reasonably be expected to
have a material adverse effect on the financial condition, operations,
assets or prospects of Borrower, (iii) any event or development that
could reasonably be expected to have a material adverse effect on the
assets, operations or financial condition of Borrower and (iv) any
change in the senior management of Borrower.
C. Deposit Accounts. Borrower shall maintain its primary operating account
with SunTrust.
II. CONDITION PRECEDENT TO THE MAKING OF EACH ADVANCE
A. The making of each advance under the Note is subject to accuracy of
representations and warranties and the further condition that no Event
of Default or event which with the passing of time or the giving of
notice or both would constitute an Event of Default shall exist at such
time.
IN WITNESS WHEREOF, Borrower and SunTrust have caused this Agreement to be
executed as of the date first above written.
Individual Borrower(s): Non-Individual Borrower(s):
------------------------------ (Seal) Atlantic Blue Trust, Inc.
Borrower Signature ----------------------------
Borrower
------------------------------ By: /s/ X.X. Xxxxxxxxx
Name -------------------------
X.X. Xxxxxxxxx as President
----------------------------
------------------------------ (Seal) Name and title
Borrower Signature
Tri-County Grove, LLC
------------------------------ ----------------------------
Name Borrower
By: /s/ X.X. Xxxxxxxxx
-------------------------
------------------------------ (Seal) X.X. Xxxxxxxxx as Manager
Borrower Signature ----------------------------
Name and title
------------------------------ Blue Head Ranch, LLC
Name ----------------------------
Borrower
------------------------------ (Seal) By: /s/ X.X. Xxxxxxxxx
Borrower Signature -------------------------
X.X. Xxxxxxxxx as Manager
----------------------------
------------------------------ Name and title
Name
Alico Holding, LLC
------------------------------ (Seal) ----------------------------
Borrower Signature Borrower
By: /s/ X.X. Xxxxxxxxx
------------------------------ -------------------------
Name
X.X. Xxxxxxxxx as Manager
----------------------------
Name and title
SunTrust Bank
By:
---------------------------
Xxxxxxx Xxxx as First Vice President
------------------------------------
Name and title
