FIRST AMENDMENT TO LOAN AGREEMENT
Exhibit
99.13
FIRST
AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN
AGREEMENT (the “Amendment”) made and entered into as of February ___,
2009, by and among FARM CREDIT
OF SOUTHWEST FLORIDA, ACA, a farm credit association having the mailing
address of 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, the “Borrowers” and each a “Borrower”) whose mailing addresses
are X.X. Xxx 0000, Xxxx Xxxxx, Xxxxxxx 00000-0000, and ATLANTICBLUE HOSPITALITY (LAKEVILLE),
LLC, ATLANTICBLUE HOSPITALITY (CAS), LLC, and ATLANTICBLUE DEVELOPMENT, INC.
(collectively, the “Guarantors” and each a “Guarantor”) (Lender, Borrowers, and
Guarantors the “Parties”).
RECITALS
A. Lender,
Borrowers, and Guarantors entered into, and executed, that certain Loan
Agreement dated as of September 24, 2008, by and among the Parties (together,
the “Loan Agreement”), which provided the making of a revolving line of credit
loan in the original principal amount of up to $20,000,000.
B. The
Borrower has requested an additional non-revolving line of credit loan in the
amount of $2,500,000 (the “NRLOC”) evidenced by a promissory note dated of even
date hereof (the “NRLOC Note”).
C. The
Parties are entering into this Amendment to modify the terms and conditions of
the Loan Agreement to include the NRLOC as a Loan under the Loan
Agreement.
NOW,
THEREFORE, for and in consideration of the premises and the mutual terms and
conditions contained herein, and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged by the
Parties hereto, the Parties agree as follows:
1. Definitions. All capitalized terms used in this
Amendment shall have the same meaning as used in the Loan Agreement, unless
expressly modified, replaced or amended herein. From and after the effective date of this Amendment, all
references to “Agreement” contained in the Loan Agreement shall
mean the Loan Agreement, as modified and amended by this
Amendment.
2. Amendments
to Loan Agreement:
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A.
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Advance. The definition of Advance in the
Loan Agreement shall
include an advance of proceeds of the
NRLOC.
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B.
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Loan. The definition of Loan in the
Loan Agreement shall be amended to include the
NRLOC.
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C.
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Maximum
NRLOC Availability.
The definition of Maximum NRLOC Availability shall be added to the Loan
Agreement as follows:
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““Maximum
NRLOC Availability” means, as of any particular date, the NRLOC Commitment minus the outstanding
amount under the NRLOC.”
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D.
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Maximum
RLOC Availability.
The definition of Maximum RLOC Availability set forth in Section
1.27 is hereby
deleted and the
following inserted in its
place:
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“1.27
“Maximum RLOC Availability” means, as of a particular date, the RLOC Commitment
minus
outstanding amounts under the RLOC.”
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E.
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Note. The definition of Note in the
Loan Agreement shall be amended to include the NRLOC
Note.
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F.
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NRLOC. The definition of NRLOC shall be
added to the Loan Agreement as
follows:
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““NRLOC”
means the non-revolving line of credit in the amount of the NRLOC Commitment as
described under Section 2.1(b) hereof.”
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G.
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NRLOC
Commitment. The
definition of NRLOC
Commitment shall be added to the Loan Agreement as
follows:
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““NRLOC
Commitment” means the lesser of: (a) $2,500,000 and (b) Total Commitment minus the outstanding
amount under the RLOC.”
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H.
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NRLOC
Maturity Date. The
definition of NRLOC Maturity date shall be added to the Loan Agreement as
follows:
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““NRLOC
Maturity Date” means August 1, 2009.”
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I.
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Outstanding. The definition of Outstandings
shall be added to the Loan Agreement as
follows:
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““Outstandings”
means the aggregate amount outstanding under the RLOC and NRLOC from time to
time.”
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J.
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Total
Commitment. The
definition of Total Commitment shall be added to the Loan Agreement as
follows:
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““Total
Commitment” means the lesser of: (a) $22,500,000 and (b) 65% of the Market
Value of the Alico Stock.”
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K.
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Obligations. The Parties agree that the Obligations
of Borrowers under the NRLOC Note is secured by that certain Stock Pledge
Agreement dated September 24, 2008, as amended by that certain First
Amendment to Stock Pledge Agreement dated Nov. 20, 2008, and as amended on
even date herewith,
made by Alico Holding, LLC, as Pledgor in favor of
Lender.
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L.
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RLOC
Commitment. The
definition of RLOC Commitment set forth in Section
1.37 is hereby
deleted and the following inserted in its
place:
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“1.37 “RLOC
Commitment” means the lesser of: (1) $20,000,000 and (b) Total Commitment minus the amount
outstanding under the NRLOC.”
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M.
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Section
2.1 of Loan Agreement. Section 2.1 is amended to add
the following:
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(b) (a) NRLOC – Subject to Borrowers’ compliance with the terms and conditions of this Loan
Agreement, Lender shall make available to Borrowers Advances up to the Maximum
NRLOC Availability from the date hereof through the NRLOC Maturity Date.
Advances shall be in minimum increments of not less than $100,000.00, PROVIDED HOWEVER, that no Advance shall
be made under the NRLOC if, after giving effect to such Advance, the Maximum
NRLOC Availability would be a negative number. The obligation to repay the NRLOC
shall be evidenced by the NRLOC Note and shall have the repayment terms and interest rates as set
forth therein. All amounts outstanding under the NRLOC shall be due and payable
on the NRLOC Maturity Date.
(ii) Notice and
Manner of Borrowing. For
Advances under the NRLOC, 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.
(c) Overadvances – If Lender shall at any time determine
that the Outstandings exceed 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 Total Commitment (65% of the Market Value
of Alico Stock) is exceeded by the Outstandings (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 NRLOC or RLOC, at Lender’s election, or (B) promptly pledge
additional Alico Stock having a Market Value of Alico Stock that will eliminate
the Overadvance Amount condition.
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N.
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Section 2.1(a)(ii) of the Loan Agreement is
hereby deleted.
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O.
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Purpose. Section 2.2 is amended to
include the proceeds of the
NRLOC.
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3. Conditions
Precedent. As conditions
precedent to the effectiveness of this First Amendment, Borrowers and Guarantors
shall furnish duly authorized resolutions evidencing their
authority to enter into this First Amendment, together with such other
documentation as Lender shall request in connection with the execution of this
First Amendment.
4. Indemnification. Borrowers agree to release,
indemnify, and hold
harmless the Lender from any claims or causes of actions that may arise in
connection with the execution and consummation of this First Amendment and
transaction contemplated hereby, except to the extent such claims or causes of
action arise from or directly result from the gross
negligence or willful misconduct of Lender, its agents or
representatives.
5. Representations
and Warranties. In order to
induce Lender to enter into this First Amendment, Borrowers and Guarantors
represent and warrant to
Lender as follows:
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A.
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The representations and warranties
made by Borrowers and Guarantors in Section
3 of the Loan
Agreement are true and correct on and as of the date
hereof;
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B.
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There has been no material adverse
change in the condition, financial or otherwise, of Borrowers or Guarantors
since the most recent financial statements of Borrowers and Guarantors
received by Lender under Section
4.1(c) of the Loan
Agreement;
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C.
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The business and properties of
Borrowers and Guarantors are not, and since the most recent financial statement of Borrowers
and Guarantors received by Lender under Section
4.1(c) of the Loan
Agreement, have not been, materially adversely affected in any substantial
way as the result of any fire, explosion, earthquake, accident, strike,
lockout, combination
of workers, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts;
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D.
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Borrowers and Guarantors have paid
all taxes due and owing and no dispute with any tax or revenue authority, whether the State of
Florida, Internal Revenue Service, or
otherwise, exists as of the date of this First Amendment;
and
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E.
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No event has occurred and is
continuing which constitutes, and no condition exists which upon the
consummation of the transaction contemplated hereby would
constitute, a default or Event of Default under the Loan Agreement, as
amended hereby.
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6. Ratification. Borrowers and Guarantors hereby ratify
and affirm the Loan Documents, as modified and amended by this First
Amendment, and agree that
it is and shall continue to be fully bound and obligated by the terms
thereof.
7. Reaffirmation
of Guaranties. Each of
Guarantors hereby (a) reaffinns its continuing, unconditional guaranty, and (b)
agrees that such unconditional guaranty shall (i) extend to all obligations and
liabilities of the Borrowers to the Lender as such may be modified from time to
time, now existing or hereafter arising, and (ii) remains in full force and
effect until terminated in the manner provided therein.
8. Entire
Agreement. This First Amendment sets forth the
entire understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and agreements among
the parties relative to such subject matter. No promise, condition, representation or
warranty, express or implied, not herein set forth shall bind any party hereto,
and not one of them has relied on any such promise, condition, representation or
warranty. Each of the parties hereto acknowledges that, except as in this First Amendment otherwise
expressly stated, no representations, warranties or commitments, express or
implied, have been made by any party to the other. None of the terms or
conditions of this First Amendment may be changed, modified, waived
or cancelled orally or otherwise, except
by writing, signed by all of the parties hereto, specifying such change,
modification, waiver or cancellation of such terms or conditions, or of any
other proceeding or succeeding breach thereof.
9. Successors
and Assigns. This First Amendment shall be binding
upon and inure to the benefit of Borrowers, Guarantors, and Lender and their
respective successors and assigns and legal representatives, heirs and devisees,
as applicable, provided however, that Borrowers, without the prior written consent of Lender, may
not assign any rights, powers, duties or obligations
hereunder.
10. Full Force
and Effect of Loan Documents. Except as hereby specifically amended,
waived or supplemented, the Loan Agreement and other Loan Documents
are hereby confirmed and
ratified in all respects and shall remain in full force and effect according to
their respective terms.
11. Counterparts. This First Amendment may be executed
in any number of counterparts, each of which shall be deemed an original as
against any party whose
signature appears thereon, and all of which shall together constitute one and
the same instrument.
12. Enforceability. Should any one or more of the
provisions of this First Amendment be determined to be illegal or unenforceable
as to one or more of the
parties hereto, all other provisions shall nevertheless remain effective and
binding upon the parties hereto.
13. Governing
Law. The laws and judicial
decisions of the State of Florida shall in all respects govern this First
Amendment.
14. Fees. Borrowers agree to pay at the execution of
this First Amendment, all costs and expenses arising from this First Amendment,
including, without limitation, all Lender fees and expenses, including, but not
limited to, a $5,000 upfront fee, and fees and expenses of Lender’s legal counsel.
[Signature
Page]
IN
WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed as
of the date first above written.
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BORROWERS:
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a
Florida Corporation (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, President
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ALICO
HOLDING, LLC,
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a
Nevada limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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By:
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/s/
Xxx X. Xxxxx, Xx.
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Xxx
X. Xxxxx, Xx., Manager
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BLUE
HEAD RANCH, LLC,
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Florida
limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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BLUE
HEAD FARMS, LLC,
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Florida
limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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BLUE
HEAD CATTLE, LLC,
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Florida
limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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TRI-COUNTY
GROVE, LLC,
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Florida
limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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PHOENIX
INDUSTRIES, LLC,
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Florida
limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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ATLANTICBLUE
WAREHOUSING, LLC,
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a
Florida limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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BLUE
BOX STORAGE, LLC,
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Florida
limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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FOOTMAN
TRAIL, LLC,
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Florida
limited liability company (Seal)
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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GUARANTORS:
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ATLANTICBLUE
HOSPITALITY (Lakeville), LLC,
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a
Florida limited liability company
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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ATLANTICBLUE
HOSPITALITY (CAS), LLC,
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a
Florida limited liability company
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By:
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/s/
XX Xxxxxxxxx
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XX
Xxxxxxxxx, Manager
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ATLANTICBLUE
DEVELOPMENT, INC.
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a
Florida corporation
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By:
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/s/
Xxxx Xxxx Xxxxxx
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Xxxx
Xxxx Xxxxxx, President
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LENDER:
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FARM CREDIT OF SOUTHWEST
FLORIDA, ACA (Seal)
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By:
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/s/ Xxxx
X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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Its:
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Vice
President
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