FARM CREDIT OF FLORIDA, ACA AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 99.19
FARM CREDIT OF
FLORIDA, ACA
AMENDED AND RESTATED
THIS AMENDED AND RESTATED LOAN AGREEMENT (the “Loan Agreement”) is made and entered into to be effective as of the 20th day of September, 2012, by and between Farm Credit of Florida, ACA, an agricultural credit association, for itself, as successor by merger to Farm Credit of Southwest Florida, ACA, and as agent/nominee for other lending institutions having an interest, direct or indirect, in the Loans (as defined below) from time to time, including, without limitation, Florida Federal Land Bank Association, FLCA, a wholly-owned subsidiary of Farm Credit of Florida, ACA, whose address is 000 X.X. 0xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (“Lender”), Atlantic Blue Group, Inc., Alico Holding, LLC, Blue Head Ranch, LLC, Blue Head Farms, LLC, Tri-County Grove, LLC, Phoenix Industries, LLC, Atlanticblue Warehousing, LLC, and Footman Trail, LLC (collectively, “Borrowers” and each a “Borrower”), whose addresses are X.X. Xxx 0000, Xxxx Xxxxx, Xxxxxxx 00000-0000 and the Guarantors (as defined below) (collectively, the “Parties”, each singly, a “Party”).
WHEREAS, the Parties have an existing credit relationship governed by, among other things, that certain Loan Agreement dated to be effective as of September 24, 2008, and as amended by: (i) that certain First Amendment to Loan Agreement dated to be effective as of February 4, 2009; (ii) that certain Second Amendment to Loan Agreement dated to be effective as of April 23, 2010; (iii) that certain Loan and Note Modification Agreement dated to be effective as of April 21, 2011; (iv) that certain Fourth Amendment to Loan Agreement dated to be effective as of May 1, 2011; (v) that certain Fifth Amendment to Loan Agreement dated to be effective as of December 22, 2011; and (vi) that certain Sixth Amendment to Loan Agreement dated to be effective as of May 29, 2012; and
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the Parties enter into this Loan Agreement and agree as follows:
1.1 “Affiliate” means, with respect to a named Person, (a) any Person directly or indirectly owning five percent (5%) or more of the voting stock or rights in such named Person or of which the named Person owns five percent (5%) or more of such voting stock or rights; (b) any Person controlling or controlled by or under common control with such named Person; (c) any officer, director or managing employee or agent of such named Person or any Affiliate of the named Person; and (d) any immediate family member of the named Person or any Affiliate of such named Person.
1.2 “Alico Stock” means the One Million Five Hundred Thousand Ninety (1,500,090) shares of Alico, Inc. common stock, together with any stock split, spin off, split up or reclassification, or combination of shares thereof and all rights related thereto, as pledged by Alico Holding, LLC, as collateral for the Loans pursuant to the Stock Pledge Agreement and any additional shares of Alico, Inc. common stock pledged to Lender from time to time.
1.3 “Business Day” means any day on which Lender is open for business.
1.4 “Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 25% or more of the equity securities of the applicable Credit Party entitled to vote for members of the board of directors or equivalent governing body of such Credit Party on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right) excluding beneficial owners of more than 25% of the equity securities of such Credit Party entitled to vote for members of the board of directors or equivalent governing body of such Credit Party on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right) at the execution of this Loan Agreement;
(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of such Credit Party cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding,
in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or
(c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of such Credit Party, or control over the equity securities of such Credit Party entitled to vote for members of the board of directors or equivalent governing body of such Credit Party on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing 25% or more of the combined voting power of such securities, excluding such persons with such powers at all time of the execution of this Amended and Restated Loan Agreement.
1.5 “Closing” or “Closing Date” means the date hereof as above first written.
1.6 “Code” means the Uniform Commercial Code as in effect under the laws of the State of Florida from time to time, as the same may be amended.
1.7 “Collateral” means the Real Estate Collateral, the Alico Stock pledged pursuant to the Stock Pledge Agreement and the Debt Service Reserve Account, together with any other real or personal property otherwise pledged, transferred or assigned to Lender as security for the repayment and performance of the Obligations, or any portion thereof, whether now or in the future..
1.8 “Credit Parties” means, collectively, Borrowers, and any Subsidiary of any Borrowers which, after the Closing Date, is joined to this Loan Agreement pursuant to Section 4.1(m) hereof, and “Credit Party” means any of them.
1.9 “Debt Service Reserve Account” shall have the meaning as set forth in Section 5.2 hereof
1.10 “Environmental Laws” shall mean state, federal or local environmental laws or regulations, including but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9601 et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 1101 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C, § 6901 et seq.; the Hazardous Materials Transportation Act of 1974, 49 U.S.C. § 1801 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 4701 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 3001 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; any laws
regulating the use of biological agents or substances including animal, medical or infectious wastes, each as amended or supplemented, and any analogous future or present local, state, and federal statutes, regulations, and ordinances promulgated pursuant thereto which may be applicable.
1.11 “Event of Default” shall have the meaning set forth in Article 6.
1.12 “GAAP” means generally accepted accounting principles and practices as in effect from time to time and recognized as such by the American Institute of Certified Public Accountants, consistently applied.
1.13 “Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
1.14 “Guarantors” means Atlanticblue Hospitality (Lakeville), LLC, Atlanticblue Hospitality (CAS), LLC, and Atlanticblue Development, Inc., each a Guarantor.
1.15 “Guaranty Agreements” means the guaranty agreement of each Guarantor dated of even date herewith in favor of Lender guaranteeing the Loans, together with any modifications, amendments, reaffirmations, restatements or replacements thereof.
1.16 “Indebtedness” means, collectively, all liabilities (including, without limitation, Capital Lease obligations) of the subject Person, whether owing by such Person alone or with one or more others in a joint, several, or joint and several capacity, whether now owing or hereafter arising, whether owing absolutely or contingently, whether created by loan, overdraft, guaranty of payment, or other contract or by quasi-contract or tort, statute or other operation of law or otherwise.
1.17 “Insolvent” means, for the subject Person, that such Person shall have ceased paying its debts in the ordinary course of business or shall have become incapable of paying its debts as they become due, or is experiencing a financial condition such that the sum of the Person’s debts is greater than all of such Person’s property, at a fair valuation, exclusive of property transferred, concealed or removed with intent to hinder, delay or defraud such Person’s creditors.
1.18 “Intercompany Transaction” means any Indebtedness or obligation arising from business done with or for, or Indebtedness owed between or among, Credit Parties or any Affiliate thereof.
1.19 “Internal Control Event” means a material weakness in, or fraud that involves management or other employees who have a significant role in, any Credit Party’s internal controls over financial reporting, in each case as described in the Securities Laws.
1.20 “Lien” or “Liens” means, with respect to any asset, mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset.
1.21 “Loan Documents” means this Loan Agreement, the Notes, the Subordination Agreement, the Tax Indemnification Agreement, the Stock Pledge Agreement, the Real Estate Collateral Documents, the Guaranty Agreements and such consents and all other documents, instruments, certificates and agreements executed and/or delivered by any Credit Party or any third party in favor of Lender in connection with the Loans or any Collateral, all of the foregoing as may be modified, amended, renewed, reaffirmed, restated or replaced from time to time.
1.22 “Loans” means, collectively, the Term Loan A and the Term Loan B, each as described in Section 2.1, together with any other loan made by Lender, whether now existing or in the future, stating that it is governed by or subject to this Agreement; all of the foregoing together with any modifications, extensions, renewals, amendments or replacements thereof.
1.23 “Material Adverse Effect” means a material adverse effect on (a) the properties or business, operations or financial condition of any Credit Party, taken as a whole, or (b) the ability of the subject Credit Party to perform in any material respect its obligations under the Loan Documents.
1.24 “Net Worth” means the total stockholders’ or owners’ equity as shown on the balance sheet of the subject Person at any particular date.
1.25 “Notes” means the Term Loan A Note and the Term Loan B Note, together with any other promissory note, whether now existing or in the future, executed in favor of Lender and stating that it is governed by or subject to this Agreement; all of the foregoing together with any modifications, extensions, renewals, amendments or replacements thereof.
1.26 “Obligations” means (a) all principal and/or interest which may be due under the Notes, and all other present and future Indebtedness, obligations and liabilities of Borrowers, and all obligations of any Credit Party, to Lender arising pursuant to this Loan Agreement and/or any other Loan Document (including, without limitation, any joinder agreements entered into in accordance with Section 4.1(n) below), regardless of whether such Indebtedness, obligations or liabilities are direct, indirect, fixed, contingent, joint or joint and several (including any interest, fees and other charges under this Loan Agreement or any other Loan Document, which would accrue but for the filing of a bankruptcy or insolvency action, whether or not such claim is allowed in such bankruptcy or insolvency action); (b) all costs incurred by Lender to obtain, preserve, perfect and enforce the security interest securing payment of such Indebtedness and to maintain, preserve and collect the Collateral, including, but not limited to, taxes, assessments, insurance premiums, repairs, attorneys’ fees and legal expenses, rent, storage charges, advertising costs, brokerage fees and expenses of sale; (c) all other obligations or liabilities of any Credit
Party owing to Lender, from time to time, whether now existing or hereafter arising, regardless of how incurred; and (d) all renewals, extensions and modifications of any of the foregoing, or any part thereof.
1.27 “Obligors” means, collectively, each Borrower, each Credit Party and each Guarantor, and “Obligor” means any one of them.
1.28 “Person” means an individual person, individual officer, corporation, limited liability company, trust, joint venture, limited or general partnership, any government or agency or political subdivision of any government, or any other entity or organization.
1.29 “Pledgor” means Alico Holding, LLC.
1.30 “Real Estate” shall have the meaning as set forth in Section 3.7 hereof.
1.31 “Real Estate Collateral” means certain real property of Blue Head Ranch, LLC, and other rights arising from or incidental thereto, as more particularly provided in the Real Estate Collateral Documents or otherwise pledged or assigned to Lender as security for the Loans, or any portion thereof, including, but not limited to, that certain real property located in or near the County of Highlands, State of Florida, together with other interests arising from or related thereto, pledged as collateral for the Loans pursuant to the Real Estate Collateral Documents, and all improvements now or hereafter located thereon, all fixtures, and any other related items more particularly described in the Real Estate Collateral Documents; all of the foregoing together with any proceeds thereof, and any appurtenances and other rights, claims or benefits arising from or pertaining thereto.
1.32 “Real Estate Collateral Documents” means any and all mortgages, security deeds, deeds of trust, and any other documents, instruments and agreements covering or related to the Real Estate Collateral, including, without limitation: that certain Mortgage and that certain Assignment of Lessor’s Interest in Leases, each dated of even date herewith, and UCC fixture financing statement(s) filed in connection therewith; all of the foregoing together with all improvements situated thereon, any assignments of leases pertaining thereto, and other rights, easements and interests associated therewith or appurtenant thereto.
1.33 “Registered Public Accounting Firm” has the meaning specified in the Securities Laws and shall be independent of the Borrowers as prescribed by the Securities Laws.
1.34 “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
1.35 “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934, Xxxxxxxx-Xxxxx and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the Public Company Accounting Oversight Board, as each of the foregoing may be amended in the effect on any applicable date hereunder.
1.36 “Stock Pledge Agreement” means that certain Stock Pledge Agreement of Pledgor pledging the Alico Stock dated September 24, 2008; as amended by that certain First Amendment to Stock Pledge Agreement dated November 20, 2008; as further amended by that certain Second Amendment to Stock Pledge Agreement dated February 4, 2009; and as further amended on even date herewith.
1.37 “Subordination Agreement” means those certain agreements, reasonably satisfactory to Lender, which subordinate all Subordinated Debt to the Loans, together with any modifications, amendments, reaffirmations, restatements or replacements thereof
1.38 “Subordinated Debt” means all Indebtedness owed by Borrowers to any other Credit Party.
1.39 “Subsidiary” means any corporation, partnership or other entity in which any Person, directly or indirectly, owns fifty percent (50%) or more of the stock, capital or other interests (legal or beneficial) which is effectively controlled, directly or indirectly, by such Person.
1.40 “Substances” shall have the meaning as set forth in Section 3.8 hereof.
1.41 “Tax Indemnification Agreement” means that certain agreement of Borrowers to Lender dated of even date herewith in which Borrowers agree to indemnify Lender at all times and hold Lender harmless from against any and all actions or causes of action, claims, demands, liabilities, loss damage or expense of any kind or nature including reasonable attorney’s fees, which Lender may at any time sustain or incur in relation to intangible taxes and documentary stamps arising as a result of the Loans.
1.42 “Term Loan A” means the term loan as described in Section 2.1(a).
1.43 “Term Loan A Maturity Date” means the maturity date as set forth in the Term Loan A Note.
1.44 “Term Loan A Note” means that certain Fixed Rate Note dated of even date herewith and executed by Borrowers in favor of Lender, as more particularly provided in Section 2.1(a), as well as any promissory note or notes issued by Borrowers in substitution, replacement, extension, amendment or renewal thereof
1.45 “Term Loan B” means the term loan as described in Section 2.1(b).
1.46 “Term Loan B Maturity Date” means the maturity date as set forth in the Term Loan B Note.
1.47 “Term Loan B Note” means that certain Fixed Rate Note dated of even date herewith and executed by Borrowers in favor of Lender, as more particularly provided in Section
2.1(b), as well as any promissory note or notes issued by Borrowers in substitution, replacement, extension, amendment or renewal thereof.
(a) This Loan Agreement, duly executed and delivered;
(b) The Notes and all other Loan Documents, duly executed and delivered;
(c) The Collateral documents required under Section 5.1 hereof, duly executed and delivered along with delivery of the certificates evidencing the Alico Stock and stock powers related thereto. Financing statements covering any of the Collateral shall be recorded in the appropriate recording offices as prescribed under the Code or the laws of any other applicable jurisdiction.
(d) Resolutions, approved by the directors, managers and/or members of each Borrower and each Guarantor, in form and substance satisfactory to Lender, authorizing the execution, delivery and performance of all Loan Documents, on behalf of each Borrower and Guarantor, as applicable;
(f) Evidence, reasonably satisfactory to Lender, of Borrowers’ compliance with any material regulations, policies, orders and permitting and licensing requirements to which Borrowers, its operations and properties, is subject or in the event of any noncompliance, that such noncompliance will not have a Material Adverse Effect;
(g) In connection with the Real Estate Collateral, Borrowers shall cause to be delivered to Lender ALTA title insurance policies, containing no exceptions as are unacceptable to Lender, endorsed as of the Closing Date, in amounts satisfactory to Lender; PROVIDED, FURTHER, that Borrowers shall also provide copies of existing surveys, a boundary survey, and environmental assessments satisfactory to Lender, covering the Real Estate Collateral;
(h) Assurances, to the satisfaction of Lender, of Lender’s requisite lien position with respect to the Collateral, including, but not limited to, Lender’s receipt of consents and waivers from third parties claiming rights in the Collateral under statute, contract or otherwise;
(i) An opinion of all Credit Parties’ Florida counsel opining, among other things, as to the due authorization and execution of the Loan Documents and the enforceability of the Loan Documents in accordance with the terms thereof;
(j) Payment by Borrowers of all fees and closing costs required hereunder and under the Loan Documents;
(k) The insurance policies required under Section 4.1(d) hereof; and
(1) Such other matters as Lender may reasonably require.
2.4 Lender Stock. On or before the Closing Date, Borrowers shall own stock in Farm Credit of Florida, ACA in an amount equal to $1,000.00. Such stock is at risk and is retireable only at the discretion of Lender’s board of directors and in accordance with Lender’s bylaws.
3.1 Good Standing. Borrowers and Guarantors are each duly incorporated or organized, validly existing, and in good standing under the laws of the State of Florida and each has the power and authority to own its property and to carry on its business in each jurisdiction in which it does business.
expected to result in liability of less than $100,000 with respect to any individual matter, in each case excluding amounts with respect to which an insurance carrier admits full coverage (except for applicable deductibles).
applicable to it or to any of its property (including, but not limited to, laws regulating wetlands), business operations, employees, and transactions, except, in each case, as would not be reasonably expected to have a Material Adverse Effect.
To the best knowledge of each Credit Party, after due inquiry, each such employee benefit plan (if any exists) complies with all applicable requirements of ERISA and of the Internal Revenue Code of 1986 as amended (“IRC”) and with all applicable rulings and regulations issued under the provisions of ERISA and the IRC except, in each case, where the failure to comply would not be reasonably expected to have a Material Adverse Effect. This Loan Agreement and the consummation of the transactions contemplated herein do not and will not involve any prohibited transaction within the scope of ERISA or Section 4975 of the IRC.
material contract, and each such material contract is, after giving effect to the transactions contemplated by this Loan Agreement will be, in full force and effect in accordance with the terms thereof.
(c) Financial Statements/Information. Credit Parties shall furnish to Lender:
(i) Quarterly Statements. Credit Parties’ quarterly internally-prepared consolidated and consolidating financial statements: (x) for the quarters ending March 31st, June 30th, and December 31st of each year, within forty-five (45) days of each fiscal quarter-ends, and (y) for fiscal quarter ending September 30th of each year, on or before December 29th of such year, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) of Atlantic Blue Group, Inc. to fairly present the financial condition of Credit Parties;
(ii) Statements Excluding Alico, Inc. Credit Parties’ quarterly internally-prepared consolidated and consolidating financial statements, excluding the results of the operations of Alico, Inc., for the quarter ending September 30th of each year, within forty-five (45) days of such fiscal quarter-end, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) of Atlantic Blue Group, Inc. to fairly present the financial condition of Credit Parties;
(iii) Annual Statements. Annual audited’ consolidated and consolidating financial statements of Credit Parties, prepared by a Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants, all within one hundred fifty (150) days of each Borrower’s fiscal year-end;
(vi) Conservation Easement Sale Reporting. In any month that any Credit Party executes the sale of any conservation easement, the Credit Parties shall provide to Lender internally-prepared financial statements and a summary of the easement sale transaction (including, without limitation, the sale price, net proceeds, property encumbered and a description of the use and/or allocation of the sales proceeds) within fifteen (15) days of such month end; and
(v) Other Reports. Such other information respecting the financial condition and operations of Credit Parties or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request.
All financial statements, opinions, reports and management letters described in clauses (i) through (iv) above shall be prepared in accordance with GAAP and applicable Securities Laws, if any, and shall be in form and content satisfactory to Lender, and shall include, without limitation, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements described in clauses (i) and (iii) above shall be accompanied by a compliance certificate, in the form of Exhibit 4.1(c) hereto, setting forth Credit Parties’ compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Atlantic Blue Group, Inc. (or such other designee reasonably acceptable to Lender).
usually carried by entities and individuals engaged in businesses similar to that of the respective Credit Party. If such insurance is afforded in whole or in part through self-insurance plan(s), Lender shall be provided with the plan description and any excess coverage limitations, which shall be reasonably satisfactory to Lender. If any Credit Party is in default under Article 6 hereof and Lender is exercising its remedies under Article 7 hereof, Lender shall have the right to settle and compromise any and all claims under any policy under which Lender is listed as a loss payee and Borrowers hereby appoint Lender as its attorney-in-fact, with power to demand, receive, and receipt for all monies payable thereunder, to execute in the name of any Credit Party or Lender or both any proof of loss, notice, draft, or other instruments in connection with such policies or any loss thereunder and generally to do and perform any and all acts as the applicable Credit Party, but for this appointment, might or could perform. Unless otherwise agreed, to the extent Lender is a loss payee under the applicable policy, Lender shall be entitled to apply the proceeds of any such policies to satisfy the indebtedness arising under the Loans. Borrowers shall pay on demand all of Lender’s reasonable costs and expenses incurred in connection with the collection and disbursement of insurance proceeds, including, without limitation, inspection, engineering and legal fees. Lender shall have the right to apply any excess proceeds toward reduction of the Obligations. PROVIDED, FURTHER, and in addition to any other indemnity and release obligations of any Obligor under this Agreement or any other Loan Document, each Obligor releases and shall indemnify, defend and hold harmless Lender and its respective officers, employees and agents, of and from any claims, demands, liabilities, obligations, judgments, injuries, losses, damages and costs and expenses (including, without limitation, reasonable legal fees) resulting from the exercise of Lender’s rights and remedies under this Section 4.1(d).
All insurance policies provided hereunder shall be in an amount sufficient to avoid the application of any co-insurance provisions and must include provisions for a minimum thirty (30) day advance written notice of any intended policy cancellation or non-renewal. The insurance required hereunder shall be in addition to, and not a replacement for, the insurance required under any other Loan Documents.
(f) Access to Collateral and Financial Information. Credit Parties shall permit any representative or agent of Lender to examine and audit any or all of its books and records, wherever located, upon request by Lender, in each case at reasonable times and after reasonable notice to the respective Credit Party.
substantial benefits, direct and indirect to each Guarantor. Each Obligor represents and warrants, covenants and agrees, that its liability for the Obligations, as such liability is variously described in the Loan Documents, is unconditional, unlimited, joint and several, and that Lender is making the Loans in reliance upon such unconditional, unlimited, joint and several liability of each Obligor, and that Lender would be unwilling to make the Loans without it.
Governors of Federal Reserve System) or extend any credit to others for the purpose of purchasing or carrying any such margin stock.
Compliance with the foregoing covenants shall be tested quarterly on the last day of each fiscal quarter of Borrowers.
Unless otherwise agreed to by Lender, in writing, or otherwise set forth herein, Borrowers’ compliance with the foregoing financial covenants shall be determined in accordance with GAAP.
without notice, demand, presentment, or resort to legal process, and, for those purposes, to enter any premises where any such Collateral is located and remove the such Collateral therefrom;
(a) The expenses of taking, removing, storing, repairing, holding, maintaining and selling the Collateral and otherwise enforcing the rights of Lender under the Loan Documents, including any legal costs and reasonable attorney’s fees;
(b) The expense of liquidating or satisfying any liens, security interests, or encumbrances on the Collateral which may be prior to the security interest of Lender that Lender, at its option, elects to satisfy; and
(c) Any unpaid fees and other sums due to Lender with respect to Loan Documents.
discharging the covenants contained in each of the Loan Documents applicable to it; and each such Person shall be deemed separately to have granted a security interest in the types and items of its property constituting Collateral. Lender shall have the right to deal with any single Obligor with regard to all matters concerning the rights and obligations of Lender hereunder and the duties and liabilities of Obligors hereunder. All actions or inactions of the officers, managers, members and agents of any Obligor with regard to the transactions contemplated under any of the Loan Documents shall be deemed to be binding upon all Obligors hereunder. Any advances or other extensions of credit made to one Obligor shall be deemed to have been made to and for the benefit of all Obligors, it being understood that Obligors’ businesses are a mutual and collective enterprise and Obligors believe that the consolidation of all Obligations under this Agreement will enhance the aggregate borrowing powers of each Obligor and ease the administration of their loan relationship with Lender, all to the mutual advantage of Obligors. Each Obligor hereby appoints each other Obligor as its true and lawful attorney-in-fact, with full right and power, for purposes of exercising all rights of such appointing Obligor hereunder and under applicable law with regard to the transactions contemplated under the Loan Documents.
If to Lender, to:
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Farm Credit of Florida, ACA
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx
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With copy, to:
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Xxxxxx Xxxxx, LLC
000 Xxxx XxXxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
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If to Credit Parties, to:
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X.X. Xxx 0000
Xxxx Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx Xxxx
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(a) Lender may assign or participate the Loan Documents, in whole or in part, to AgFirst, Farm Credit Bank, its successors and assigns, to other lending institutions, their successors and assigns, and/or any other Farm Credit institution organized under the Farm Credit Act of 1971, as amended, its successors and assigns, without any notice whatsoever to Borrowers. Credit Parties hereby authorize Lender to disclose all information (including financial) provided to Lender by such Credit Parties in connection with the Loans to any actual or prospective assignee or participant of all or part of the Loans. No Credit Party may assign the Loan Documents or any interest therein or obligation thereunder without Lender’s prior written consent.
Credit Parties arising under the Loan Documents. Credit Parties agree that Lender shall have no duty or obligation of any nature to (i) make any investigation, inspection or review regarding any Collateral at any time, with any such investigation that is undertaken being solely for the benefit of Lender; or (ii) communicate in any manner with any Credit Party irrespective of the fact that Lender’s information, or lack thereof, could be material to such Credit Party’s actions with respect to the Obligations.
and applicable law; (e) for payment of taxes (including, but not limited to, documentary stamp taxes, intangibles taxes, and any penalties or fines related to failure to pay such amounts timely), expenses, costs or other amounts levied, incurred or related to the Loan and the recordation of any Loan Documents; and (f) defending any counterclaim, cross-claim or other action, or participating in any bankruptcy proceeding, mediation, arbitration, litigation or dispute resolution of any other nature involving Lender or any Credit Party or any Collateral and relating to the Loans, except to the extent Lender has been adjudicated to have engaged in wrongful conduct.
disclose any Confidential Information to any other party without the prior written consent of the Borrowers, other than: (i) to Lender’s officers, directors, employees, agents and advisors, who need to review the Confidential Information for purposes of this Loan Agreement and any related matters; (ii) as contemplated by Section 10.5 hereof, to additional lending institutions, and then only if such institutions have been informed of this provision and agree to comply with the obligations contained herein as if binding on them directly, and (iii) as required by law or judicial process.
[SIGNATURE PAGE ATTACHED]
BORROWERS:
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By:
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/s/ Xxxxx Xxxx
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Xxxxx Xxxx, President
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ALICO HOLDING, LLC
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By:
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/s/ Xxxxx Xxxx
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Xxxxx Xxxx, Manager
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BLUE HEAD RANCH, LLC
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By:
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/s/ Xxxxx Xxxx
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Xxxxx Xxxx, Manager
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BLUE HEAD FARMS, LLC
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By:
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/s/ Xxxxx Xxxx
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Xxxxx Xxxx, Manager
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TRI-COUNTY GROVE, LLC
|
||
By:
|
/s/ Xxxxx Xxxx
|
|
Xxxxx Xxxx, Manager
|
PHOENIX INDUSTRIES, LLC
|
|||
By:
|
ATLANTICBLUE
|
||
WAREHOUSING, LLC, Sole Member
|
|||
By:
|
/s/ Xxxxx Xxxx
|
||
Xxxxx Xxxx, Manager
|
|||
ATLANTICBLUE WAREHOUSING, LLC
|
|||
By:
|
/s/ Xxxxx Xxxx
|
||
Xxxxx Xxxx, Manager
|
|||
FOOTMAN TRAIL, LLC
|
|||
By:
|
/s/ Xxxxx Xxxx
|
||
Xxxxx Xxxx, Manager
|
|||
GUARANTORS:
|
|||
ATLANTICBLUE HOSPITALITY
|
|||
(LAKEVILLE, LLC)
|
|||
By:
|
/s/ Xxxxx Xxxx
|
||
Xxxxx Xxxx, Manager
|
|||
ATLANTICBLUE HOSPITALITY (CAS), LLC
|
|||
By:
|
/s/ Xxxxx Xxxx
|
||
Xxxxx Xxxx, Manager
|
|||
ATLANTICBLUE DEVELOPMENT, INC.
|
|||
By:
|
/s/ Xxxxx Xxxx
|
||
Xxxxx Xxxx, President
|
FARM CREDIT OF FLORIDA, ACA, successor by merger to Farm Credit of Southwest Florida, ACA, for itself and as agent/nominee for other lending institutions having an interest, direct or indirect, in the Loans from time to time
|
||
/s/ Xxxxx Xxxx
|
||
By:
|
Xxxxx Xxxx, Loan Officer and
|
|
Authorized Representative
|