STOCK PLEDGE AGREEMENT
Exhibit
99.11
THIS
STOCK PLEDGE AGREEMENT ("Pledge Agreement") is made and dated this 24th day of
September 2008, by Alico
Holding, LLC (herein called the "Pledgor") to Farm Credit of Southwest Florida,
ACA, an agricultural credit association for itself and as agent/nominee
for other lending institutions having an interest, direct or indirect, in the
Loan (as defined hereinbelow) from time to time (herein called the
"Pledgee").
Preliminary
Statement
The
Pledgee has agreed, among other things, to extend a revolving line of credit
loan to Atlantic Blue Group,
Inc., Alico Holding, LLC, Blue Head Ranch, LLC, Blue Head Farms, LLC, Blue Head
Cattle, LLC, Tri-County Grove, LLC, Atlanticblue Warehousing, LLC, Blue Box
Storage, LLC, Phoenix Industries, LLC, and Footman Trail, LLC (jointly
and severally, the "Borrowers") (the "Loan") having an aggregate principal
amount of up to $20,000,000 pursuant to the terms and conditions of that certain
promissory note from Borrowers (herein as amended, modified, renewed, extended,
or restated, from time to time, called the "Note") dated of even date herewith
and a Loan Agreement among Borrowers and Pledgee dated of even date herewith
(the "Loan Agreement"). As a condition of making the Loan to the Borrowers, the
Pledgee (also one of the Borrowers) has required this pledge of
stock from Pledgor. Without this stock pledge, the Pledgee would be unwilling to
make the Loan to the Borrowers. All terms not otherwise defined herein are used
with the same meaning as set forth in the Loan Agreement or if not defined
therein, the Note.
NOW,
THEREFORE, for and in consideration of the sum of Three Dollars ($3.00) and the
mutual promises hereinafter and other valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the Pledgor does hereby grant
unto the Pledgee the security interests hereinafter described in accordance with
the terms and conditions hereinafter set forth:
1. Grant of Security
Interest. Pledgor hereby pledges and grants to Pledgee a security
interest in the property described in Paraqraph
2 below (collectively and severally, the "Collateral") to secure payment
and performance of all obligations of Borrowers to Pledgee arising out of or
related to the above described Note and Loan Agreement, or any other extension
of credit, including, but not limited to, payment of all or any amounts now or
hereafter due or owed Pledgee by Borrowers (collectively and severally, the
"Obligations").
2. Collateral. The
Collateral shall consist of the following:
(a)
See Exhibit A
attached hereto and made a part of (herein called "Pledged Shares"), all voting
and other rights now or hereafter exercisable in connection with such Pledged
Shares, and all cash and non-cash dividends and all other property now or
hereafter receivable with respect to any of the Pledged Shares;
(b) all
proceeds of the foregoing Collateral.
For
purposes of this Pledge Agreement, the term "proceeds" includes whatever is
receivable or received when Collateral or proceeds is sold, collected, exchanged
or otherwise disposed of, whether such disposition is voluntary or
involuntary.
3. Obligations. The
Obligations of Pledgor secured by this Pledge Agreement shall include any and
all debts, obligations and liabilities of Borrowers to Pledgee, whether now
existing or hereafter arising, absolute or contingent, joint or several,
including without limitation, the Loan and all interest, fees, and expenses
related thereto, including costs and fees resulting from
collection.
4. Representations and
Warranties. Pledgor hereby represents and warrants that:
(a) Pledgor
is the record and beneficial owner of and has good and marketable title to the
Collateral and that no other person has any right, title, claim or interest (by
way of security interest or other lien or charge or otherwise) in, against or to
the Collateral; and
(b) The
Pledged Shares have been validly issued and are fully paid and
non-assessable.
5. Covenants of Pledgor.
Pledgor hereby agrees (a) to do all acts that may be necessary to maintain,
preserve and protect the Collateral; (b) to procure, execute and deliver from
time to time any endorsements, assignments, and other writings deemed necessary
or appropriate by Pledgee to perfect, maintain and protect its security interest
hereunder and priority thereof and to deliver promptly to Pledgee all originals
of Collateral or proceeds consisting of instruments and chattel paper; (c) to
appear in and defend any action or proceeding which may affect its title to or
Pledgee's interest in the Collateral; (d) to keep separate, accurate and
complete records of the Collateral and to provide Pledgee with such records and
such other reports and information relating to the Collateral as Pledgee may
request from time to time.
6. Authorized Action by
Pledgee. Pledgee shall not be required to make any presentment, demand or
protest, or give any notice and need not take any action to preserve any rights
against any prior party or any other person in connection with the Obligations
or with respect to the Collateral.
7. Administration of the
Pledged Shares. In addition to any provisions of this Pledge Agreement
which govern the administration of the Collateral generally, the following
provisions shall govern the administration of the Pledged Shares:
2
(a)
Until there shall have occurred an Event of Default (as defined in Paragraph 8), Pledgor shall
be entitled to vote or consent with respect to the Pledged Shares in any manner
not inconsistent with this Pledge Agreement, or any document or instrument
delivered or to be delivered by Pledgor pursuant to or in connection with the
Loan and, except as provided in Paragraph 7(b) below, to
receive all dividends paid with respect to the Pledged Shares. If there shall
have occurred and be continuing an Event of Default and Pledgee shall have
notified Pledgor that Pledgee desires to exercise its proxy rights with respect
to all or a portion of the Pledged Shares, Pledgor hereby grants to Pledgee an
irrevocable proxy for the Pledged Shares pursuant to which proxy the Pledgee
shall be entitled to vote or consent, in its discretion, and in such event
Pledgor agrees to deliver to Pledgee such further evidence of the grant of such
proxy as Pledgee may request.
(b) In
the event that at any time or from time to time after the date hereof, Pledgor,
as record and beneficial owner of the Pledged Shares, shall receive or shall
become entitled to receive, any dividend or any other distribution whether in
securities or property by way of stock-split, spin-off, split-up or
reclassification, combination of shares or the like, or in case of any
reorganization, consolidation or merger, and Pledgor, as record and beneficial
owner of the Pledged Shares, shall thereby be entitled to receive securities or
property in respect of such Pledged Shares, then and in each such case, Pledgor
shall deliver to Pledgee and Pledgee shall be entitled to receive and retain all
such securities or property as part of the Pledged Shares as security for the
payment and performance of the Obligations; provided, however, that until there
shall have occurred an Event of Default, Pledgor shall be entitled to retain any
cash dividends paid on account of the Pledged Shares and shall be entitled to
retain any property, provided that Pledgor shall furnish to Pledgee evidence
satisfactory to Pledgee that said property will be Collateral secured by this
Pledge Agreement.
(c) Upon
the occurrence of an Event of Default and so long as such Event of Default shall
be continuing, Pledgee is authorized to sell the Pledged Shares, and if it deems
it advisable to do so, to restrict the prospective bidders or purchasers to
persons or entities who (I) will represent and agree that they are purchasing
for their own account, for investment, and not with a view to the distribution
or sale of any of the Pledged Shares; and (ii) satisfy the offeree and purchaser
requirements for a valid private placement transaction under Section 4(2) of the
Securities Act of 1933, as amended (the "Act"), and under Securities and
Exchange Commission Regulation D, or under any similar or successor statute,
rule or regulation. Pledgor agrees that disposition of the Pledged Shares
pursuant to any private sale made as provided above may be at prices and on
other terms less favorable than if the Pledged Shares were sold at public sale,
and that Pledgee has no obligation to delay the sale of any Pledged Shares for
the period of time necessary to permit the registration of the Pledged Shares
for public sale under the Act. Pledgor agrees that a private sale
or
3
sales
made under the foregoing circumstances shall be deemed to have been made in a
commercially reasonable manner. In the event that there is a public market for
the Pledged Shares and Pledgee elects to sell the Pledged Shares, or part of
them, in a public sale, Pledgor shall use his best effort to register and
qualify the Pledged Shares, or applicable part thereof, under the Act and all
state Blue Sky or securities laws required by the proposed terms of sale and all
expenses thereof shall be payable by Pledgor, including, but not limited to, all
costs of (a) registration or qualification of, under the Act or any state Blue
Sky or securities laws or pursuant to any applicable rule or regulation issued
pursuant thereto, any Pledged Shares, and (b) sale of such Pledged Shares,
including, but not limited to, brokers' or underwriters' commissions, fees or
discounts, accounting and legal fees, costs of printing and other expenses of
transfer and sale.
(d) (If
any consent, approval or authorization of any state, municipal or other
governmental department, agency or authority should be necessary to effectuate
any sale or other disposition of the Pledged Shares, or any part thereof,
Pledgor will execute such applications and other instruments as may be required
in connection with securing any such consent, approval or authorization, and
will otherwise use his best efforts to secure the same.
Nothing
contained in this Paragraph
7 shall be deemed to limit the other obligations of Pledgor contained in
the Loan Agreement, the Note or this Pledge Agreement and the rights of Pledgee
hereunder or thereunder.
8. Default and Remedies.
Pledgor shall be deemed in default under this Pledge Agreement in the event
Borrowers fail to pay, when due, any sums due or hereafter owed to Pledgee under
the terms of the Note, Pledgor fails to meet its obligations hereunder, or an
Event of Default shall have occurred under the Loan Agreement, the Note or any
other Loan Document (collectively herein referred to as the "Event of Default").
Upon the occurrence of any such Event of Default, Pledgee may, at its option,
and without notice to or demand on Pledgor and in addition to all rights and
remedies available to Pledgee as provided in this Pledge Agreement, do any one
or more of the following: (a) enforce Pledgee's security interest in any manner
permitted by law, or provided for in this Pledge Agreement; (b) as punished by
law, sell, or otherwise dispose of any Collateral at one or more public or
private sales, whether or not such Collateral is present at the place of sale,
for cash or credit or future delivery; (c) recover from Pledgor all costs and
expenses, including without limitation, reasonable attorneys' fees, incurred or
paid by Pledgee in exercising any right, power or remedy provided by this Pledge
Agreement or by law; and (d) recover from Pledgor any deficiency remaining
following such disposition. Pledgor shall be given five (5) days prior notice of
the time and place of any public sale of any Collateral or of the time after
which any private or other intended disposition of any Collateral is to be made.
Upon any sale or other disposition pursuant to this Pledge Agreement, Pledgee
shall have the right to deliver,
4
assign
and transfer to the purchaser thereof the Collateral or portion thereof so sold
or disposed of to the extent permitted by law.
9. Cumulative Rights.
The rights, powers and remedies of Pledgee under this Pledge Agreement shall be
in addition to all rights, powers and remedies given to Pledgee by virtue of any
statute or rule of law, or any other agreement, all of which rights, powers and
remedies shall be cumulative and may be exercised successively or concurrently
without impairing Pledgee's security interest in the Collateral.
10. Waiver. Any
forbearance, failure or delay by Pledgee in exercising any right, power or
remedy shall not preclude the further exercise thereof, and every right, power
or remedy of Pledgee shall continue in full force and effect until such right,
power or remedy is specifically waived in a writing executed by Pledgee. Pledgor
waives any right to require Pledgee to proceed against any person or to exhaust
any Collateral or to pursue any remedy in Pledgee's power.
11. Set-Off. Pledgor
agrees that Pledgee may exercise its rights of set-off with respect to the
Obligations in the same manner as if the Obligations were
unsecured.
12. Binding Upon
Successors. All rights of Pledgee under this Pledge Agreement shall inure
to the benefit of its successors and assigns, and all obligations of Pledgor
shall bind himself, his heirs, executors, administrators, successors and
assigns.
13. Entire Agreement;
Severability. This Pledge Agreement contains the entire security
agreement between Pledgee and Pledgor. If any of the provisions of this Pledge
Agreement shall be held invalid or unenforceable, this Pledge Agreement shall be
construed as if not containing those provisions and the rights and obligations
of the parties hereto shall be construed and enforced accordingly.
14. Choice of Law. This
Pledge Agreement shall be construed in accordance with and governed by the laws
of the State of Florida and, where applicable and except as otherwise defined
herein, terms used herein shall have the meanings given them in the Florida
Uniform Commercial Code.
15. Notice. All demands,
notices and other communications provided for hereunder shall be in writing and
addressed to the respective party at the address of such party specified below,
or to each party at such other address as shall be designated by such party in a
written notice to each other party. All such demands, notices and other
communications shall be effective at the times provided in the Note for notices
thereunder.
5
EXECUTED under seal
as of the date first written above.
|
Notice
Address:
|
Pledgor:
|
|||
|
Alico
Holding, LLC, a Nevada limited
|
||||
|
liability
company (Seal)
|
||||
|
By:
|
/s/ XX Xxxxxxxxx | |||
|
XX
Xxxxxxxxx, Manager
|
||||
|
By:
|
/s/ Xxx X. Xxxxx, Xx. | |||
|
Xxx
X. Xxxxx, Xx., Manager
|
||||
|
Notice
Address:
|
Pledgee:
|
|||
|
000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
|
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
(Seal)
|
|||
| /s/ Xxxx X. Xxxxxxx | ||||
|
By:
|
Xxxx
X. Xxxxxxx
|
|||
|
Its:
|
Chief
Operations Officer/Executive
Vice
President
|
|||
6
Exhibit
A
to
Security Agreement
|
Number
of
Shares
|
Stock
Name
|
CUSIP
|
Stock
No.
|
Owner(s)
Name
|
|
100,000
|
Alico,
Inc.
|
016230
10 4
|
AB00024836
|
Alico
Holding, LLC
|
|
100,000
|
Alico,
Inc.
|
016230
10 4
|
AB00024837
|
Alico
Holding, LLC
|
|
100,000
|
Alico,
Inc.
|
016230
10 4
|
AB00024838
|
Alico
Holding, LLC
|
|
100,000
|
Alico,
Inc.
|
016230
10 4
|
AB00024839
|
Alico
Holding, LLC
|
|
100,000
|
Alico,
Inc.
|
016230
10 4
|
AB00024840
|
Alico
Holding, LLC
|
|
100,000
|
Alico,
Inc.
|
016230
10 4
|
AB00024841
|
Alico
Holding, LLC
|
|
100,000
|
Alico,
Inc.
|
016230
10 4
|
AB
24429
|
Alico
Holding, LLC
|
|
100,000
|
Alico,
Inc.
|
016230
10 4
|
AB
24430
|
Alico
Holding, LLC
|
7
