SUNTRUST Commercial Note
Florida
Borrower: Atlantic Blue Trust, Inc. Date: October 6. 2004
------------------------- ---------------
Tri-County Grove, LLC
Blue Head Ranch, LLC
Alico Holding, LLC
Borrower's Address: 000 X. Xxxxxxx Xxx., Xxxx Xxxxx, Xxxxxxx 00000
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Loan Amount: Ten Million and No/100 Dollars ($10,000,000.00)
--------------------------------- ------------------
Account No. Note No. |X| Original |_| Renewal
----------- ------------
Officer: Xxxxxx X. Xxxxxxxx, III-13284
-----------------------------
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 ___________ installments of
Term Note 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
_______________, Officer:______________.
|_| Variable Variable payment schedule consisting of _____________ consecutive _________________ installments of
Payment principal of $____________________ each, plus accrued interest, payable on the __________ day of
Term Note 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 borrow up to the Loan Amount but may not reborrow
Borrowing amounts that have been repaid.
Note
|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 Xxxxxxxx unless
there is a material error in such records. Accrued interest will be payable on the 5th
day of each Quarter beginning on January 5, 2005, 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 Xxxxxxxx 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.
|_| Variable Variable payment schedule consisting of _______________________________________________________________
Payment _______________________________________________________________________________________________________
Schedule Note _______________________________________________________________________________________________________.
|_| Additional Terms And Conditions
This Note is governed by additional terms and conditions contained in a
_______________ between the Borrower and SunTrust dated ___________,
_______________, 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). 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 1.00% 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
November 1, 2004.
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
__________, __________, executed by Xxxxxxxx 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:
Assignment of SunTrust Securities. Inc. Account No.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________.
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 Xxxxxxxx, 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 nonpayment 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. 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.
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 Xxxxxxxx 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
Xxxxxxxx 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.
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: No Taxes Are Required
--------------------------------------------.
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): Nonindividual Borrower(s):
__________________________________(Seal) Atlantic Blue Trust, Inc.
Borrower Signature Borrower
__________________________________
Name, printed or typed By: /s/ Xxxx X. Xxxxxxxxx
------------------------
__________________________________(Seal) Xxxx X. Xxxxxxxxx, President
Borrower Signature Name and title, printed
or typed
__________________________________ Tri-County Grove, LLC
Name, printed or typed Borrower
__________________________________(Seal)
Borrower Signature By: /s/ Xxxx X. Xxxxxxxxx
------------------------
__________________________________ Xxxx X. Xxxxxxxxx, Manager
Name, printed or typed Name and title, printed or
typed
_________________________________(Seal) Blue Head Ranch, LLC
Borrower Signature Borrower
_________________________________
Name, printed or typed By: /s/ Xxxx X. Xxxxxxxxx
------------------------
Xxxx X. Xxxxxxxxx, Manager
----------------------------
Name and title, printed or
typed
Alico Holding, LLC
By: /s/ Xxxx X. Xxxxxxxxx,
Manager
--------------------------
Xxxx X. Xxxxxxxxx, Manager
By: /s/ Xxxxxxx X. Xxxx
------------------------
Xxxxxxx X. Xxxx, 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 October 6, 2004 ("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 on the basis
of a 360 day year and the actual number of days elapsed. 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: Nonindividual:
Atlantic Blue Trust, Inc.
___________________________(Seal) ------------------------------------
Borrower
___________________________ By: /s/ Xxxx X. Xxxxxxxxx
Name, printed or typed --------------------------------
Xxxx X. Xxxxxxxxx, President
___________________________(Seal) -------------------------------------
Name and title, printed or typed
Tri-County Grove, LLC
____________________________ -------------------------------------
Borrower
____________________________ By: /s/ Xxxx X. Xxxxxxxxx
Name, printed or typed --------------------------------
Xxxx X. Xxxxxxxxx, Manager
-------------------------------------
_____________________________(Seal) Name and title, printed or typed
______________________________ Blue Head Ranch, LLC
Name, printed or typed
By: /s/ Xxxx X. Xxxxxxxxx
______________________________ ---------------------------------
Xxxx X. Xxxxxxxxx, Manager
Alico Holding, LLC
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxxx, Manager
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Xxxxxxx X. Xxxx, Manager
SUNTRUST Affidavit of Out-of-State Delivery
(Loan Officer at Out-of-State Closing)
STATE OF GEORGIA )
)SS
COUNTY OF WARE )
I, Xxxxxx X. Xxxxxxxx XXX, being first duly sworn upon my oath, depose and
say:
1. That I am a Senior Vice President of SunTrust Bank (the "Payee").
2. That on the 7th day of October, 2004, I witnessed the execution of
that certain Promissory Note or Credit Agreement, and any accompanying Loan
Agreement or Agreement to Commercial Note, dated October 6, 2004, in the
maximum principal amount of Ten Million and No/100 Dollars ($10,000,000.00)
payable by Atlantic Blue Trust, Inc., Tri-County Grove LLC, Blue Head Ranch,
LLC, and Alico Holding, LLC, as Maker, to the Payee.
3. That the execution of the Promissory Note or Credit Agreement, and
any accompanying Loan Agreement or Agreement to Commercial Note, took place in
the city of _______________ in the State of ______________.
4. That I accepted delivery of the Promissory Note or Credit
Agreement, and any accompanying Loan Agreement or Agreement to Commercial Note,
on behalf of the Payee in Waycross, Georgia.
Name:
---------------------------
Title: Senior Vice President
---------------------------
Sworn to and Subscribed Before
Me this ____ day of October , 2004.
Personally Known |_| or
|X|Produced as Identification
-------------
Name:
-------------------------------------
Title: Notary Public
My Commission Expires:
--------------------
My commission No.
------------------------
(Seal)
SUNTRUST Certification of Execution
(Nonindividual)
STATE OF GEORGIA }
} SS
COUNTY OF WARE }
On the 7th day of October, 2004 personally appeared Xxxx X. Xxxxxxxxx as the
President of Atlantic BlueTrust, Inc., a Florida corporation, and before me
executed the attached Promissory Note or Credit Agreement, and any accompanying
Loan Agreement or Agreement to Commercial Note, dated as in the principal
amount of October 6, 2004, of Ten Million and No/100 Dollars ($10,000,000.00)
payable by Atlantic Blue Trust, Inc., Tri-County Grove, LLC, Blue Head Ranch,
LLC, and Alico Holding, Inc. to SunTrust Bank, Lender.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal, in the
state and county aforesaid.
----------------------------------------------------------------
Signature of Notary Public, State of Georgia
Name: /s/ [illegible]
---------------------------------------------------------
My Commission Expires: Notary Public, Ware County, Georgia
---------------------------------------
My Commission Number: My Commission Expires Oct. 15, 2007
---------------------------------------
(SEAL)
(Individual)
STATE OF }
} SS
COUNTY OF }
On the ______ day of ________________, ___________, personally appeared
_________________________________, and before me executed the attached
Promissory Note and/or Loan Agreement, Agreement to Commercial Note or Credit
Agreement dated as of ___________, ________, in the principal amount of
______________________________ Dollars ($______________) payable by __________
to SunTrust Bank, Lender.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal, in the
state and county aforesaid.
-------------------------------------------------------------
Signature of Notary Public, State of
-------------------------
Name:
------------------------------------------------------
My Commission Expires:
------------------------------------
My Commission Number:
------------------------------------
(SEAL)
SUNTRUST Certification of Execution
(Nonindividual)
STATE OF GEORGIA }
} SS
COUNTY OF WARE }
On the 7th day of October, 2004, personally appeared Xxxx X. Xxxxxxxxx as the
Manager of Tri-County Grove, LLC, Blue Head Ranch, LLC, and Alico Holding, LLC,
a limited liability company, and before me executed the attached Promissory
Note or Credit Agreement, and any accompanying Loan Agreement or Agreement to
Commercial Note, dated as in the principal amount of October 6, 2004, of Ten
Million and No/100 Dollars ($10,000,000.00) payable by Atlantic Blue Trust,
Inc., Tri-County Grove, LLC, Blue Head Ranch, LLC, and Alico Holding, LLC to
SunTrust Bank, Lender.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal, in the
state and county aforesaid.
----------------------------------------------------------------
Signature of Notary Public, State of Georgia
---------------------------
Name: /s/ [illegible]
---------------------------------------------------------
My Commission Expires: Notary Public, Ware County, Georgia
---------------------------------------
My Commission Number: My Commission Expires Oct. 15, 2007
---------------------------------------
(SEAL)
(Individual)
STATE OF }
} SS
COUNTY OF }
On the ______ day of ________________, ___________, personally appeared
_________________________________, and before me executed the attached
Promissory Note and/or Loan Agreement, Agreement to Commercial Note or Credit
Agreement dated as of ___________, ________, in the principal amount of
____________________________ Dollars ($______________) payable by __________
to SunTrust Bank, Lender.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal, in the
state and county aforesaid.
-------------------------------------------------------------
Signature of Notary Public, State of
-------------------------
Name:
------------------------------------------------------
My Commission Expires:
------------------------------------
My Commission Number:
------------------------------------
(SEAL)
SUNTRUST Certification of Execution
(Nonindividual)
STATE OF GEORGIA }
} SS
COUNTY OF WARE }
On the 7th day of October, 2004, personally appeared Xxxxxxx X. Xxxx as the
Manager of Alico Holding, LLC, a limited liability company, and before me
executed the attached Promissory Note or Credit Agreement, and any accompanying
Loan Agreement or Agreement to Commercial Note, dated as in the principal
amount of October 6, 2004, of Ten Million and No/100 Dollars ($10,000,000.00)
payable by Atlantic Blue Trust, Inc., Tri-County Grove, LLC, Blue Head Ranch,
LLC, and Alico Holding, LLC to SunTrust Bank, Lender.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal, in the
state and county aforesaid.
----------------------------------------------------------------
Signature of Notary Public, State of Georgia
---------------------------
Name: /s/ [illegible]
---------------------------------------------------------
My Commission Expires: Notary Public, Ware County, Georgia
---------------------------------------
My Commission Number: My Commission Expires Oct. 15, 2007
---------------------------------------
(SEAL)
(Individual)
STATE OF }
} SS
COUNTY OF }
On the ______ day of ________________, ___________, personally appeared
_________________________________, and before me executed the attached
Promissory Note and/or Loan Agreement, Agreement to Commercial Note or Credit
Agreement dated as of ___________, ________, in the principal amount of
____________________________ Dollars ($______________) payable by __________
to SunTrust Bank, Lender.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal, in the
state and county aforesaid.
-------------------------------------------------------------
Signature of Notary Public, State of
-------------------------
Name:
------------------------------------------------------
My Commission Expires:
------------------------------------
My Commission Number:
------------------------------------
(SEAL)
