Exhibit 99.8
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SECURITY AGREEMENT
Certificated Securities, Notes, Instruments, Etc.
This Security Agreement dated as of May 5, 2006 , by Alico Holding, LLC (the
"Owner") in favor of SunTrust Bank, its present and future affiliates and their
successors and assigns (collectively, "SunTrust") provides:
SECURITY AGREEMENT. In order to induce SunTrust from time to time to enter into
agreements with and to extend or continue to extend credit to Atlantic Blue
Trust, Inc., Tri-County Grove, LLC, Blue Head Ranch, LLC, Alico Holding, LLC
(and any one or more and any combination if more than one, the "Borrower") and
in consideration of any credit so extended, the Owner (which may include the
Borrower) hereby grants, sells, assigns, transfers and conveys to SunTrust a
security interest in the Collateral and all proceeds, products, rents and
profits thereof and all substitutions and replacements therefore and all
revenues from the right to use the Collateral to secure the prompt payment and
performance of any and all liabilities, obligations, agreements and undertakings
of Borrower to SunTrust (and, in addition, all liabilities, obligations,
agreements and undertakings of Owner, or any one or more of them, to SunTrust if
Owner and Borrower are not the same person or entity) in any amount, whether now
existing or hereafter arising, including those owed by Borrower or Owner to
others and acquired by SunTrust through purchase, assignment or otherwise,
however created, evidenced or arising, whether individually or jointly with
others, and whether absolute or contingent, direct or indirect, as maker,
endorser, guarantor, surety or otherwise, liquidated or unliquidated, matured or
unmatured, whether or not secured by other collateral, and including, without
limitation, (a) all obligations to perform or forbear from performing any acts,
(b) all overdrafts on deposits or accounts maintained by Borrower or Owner with
SunTrust, (c) all liabilities, obligations, agreements and undertakings of
Borrower or Owner to SunTrust pursuant to any interest rate hedge agreement or
other derivative transaction agreement or any foreign exchange contract or any
application or other agreement requesting SunTrust to issue any letter of credit
including, without limitation, the obligation of Borrower or Owner to reimburse
SunTrust for all amounts funded by SunTrust pursuant to any such letter of
credit, and (d) all costs of collection and protection of SunTrust's rights,
including attorneys' fees allowed by law (in the amount of 15% of the principal
and interest secured hereby if this agreement is governed by the laws of
Georgia), whether such collection or protection occurs prior to, during, or
after any bankruptcy proceedings filed by or against any Obligor (as such term
is defined below) (all the foregoing being hereinafter collectively referred to
as the "Obligations").
COLLATERAL. As used in this Security Agreement, the term "Collateral" shall mean
the following personal property, consisting of securities, instruments,
documents, chattel paper, investment property, promissory notes, documents of
title, documentary drafts, accounts, letter of credit rights, general
intangibles or other property, and all proceeds and products thereof and all
substitutions and replacements therefore (as all such terms are defined in the
Uniform Commercial Code) whether now existing or hereafter acquired:
See attached Exhibit "A"
Other: See attached Exhibit "B"
If the Collateral consists of stock, securities, or investment property, the
Owner also grants to SunTrust a security interest in all rights to which an
owner of the Collateral is now entitled or may become entitled by virtue of
owning such Collateral including, without limitation, any interest, increase in
or profits or income derived therefrom, cash, stock and non-cash distributions,
dividends and stock rights, any payment upon redemption or dissolution and
liquidation of the issuer and the net cash receipts from the sale of any
share(s) or any fractional share of stock held in connection with a stock
dividend or stock split. Owner shall retain and may exercise in its own
discretion any voting rights associated with the Collateral, provided, however,
that upon an Event of Default hereunder, SunTrust shall have the right, in its
discretion, to transfer or register any of the Collateral into the name of
SunTrust, or any nominee of SunTrust, and/or to exercise any or all voting
rights as to any or all of the Collateral.
REPRESENTATIONS AND WARRANTIES. The Owner represents and warrants to SunTrust
as follows:
a. This Security Agreement has been duly executed and delivered by Owner,
constitutes Owner's valid and legally binding obligation and is
enforceable in accordance with its terms against Owner. Owner
represents and warrants to SunTrust that it has rights in all of the
Collateral and/or has the power to transfer rights in all of the
collateral. The execution, delivery and performance of this Security
Agreement, the grant of the security interest in the Collateral and the
consummation of the transactions contemplated will not, with or without
the giving or notice of the lapse of time, (a) violate an material law
applicable to Owner, (b) violate any judgment, writ, injunction or
order of any court or governmental body or officer applicable to Owner,
(c) violate or result in the breach of any material agreement to which
Owner is a party or by which any of Owner's property, including the
Collateral, is bound or (d) violate any restriction on the transfer of
any of the Collateral. The Owner is and will continue to be the
absolute owner of the Collateral and there are no other liens or
security interests affecting the Collateral other than the security
interest granted in this Security Agreement except those previously
disclosed to SunTrust in writing by the Owner. If the Owner is acting
in the capacity of trustee, administrator or executor of an estate,
such fact shall be disclosed and satisfactory evidence of capacity and
authorization shall be provided to SunTrust.
b. Check and complete the section which applies:
[ ] The Owner is an individual above the age of majority and has the
legal capacity to enter into this Security Agreement and the
Owner's principal residence is located in the state of
_______________.
[ ] The Owner is a corporation duly organized and existing under the
laws of the state of _______________ and the Owner's
Organizational Identification Number is __________. The Owner is
duly qualified and in good standing as a foreign corporation in
every jurisdiction where such qualification is necessary; the
execution and performance of this Security Agreement have been
duly authorized by action of its Board of Directors, no action of
its shareholders being necessary; the execution and performance of
this Security Agreement will not violate or contravene any
provisions of law or regulation or its Articles of Incorporation,
Shareholder Agreement, By-Laws or other agreements to which it is
a party or by which it is bound; and no consent or approval of any
governmental agency or authority is required in making or
performing the obligations under this Security Agreement.
|X| The Owner is a registered partnership, limited liability company
or other registered entity organized under the laws of the state
of Nevada and the Owner's Organizational Identification Number is
LLC15759-2002; the Owner is duly qualified and in good standing to
do business in every jurisdiction where qualification is
necessary; the execution and performance of this Security
Agreement have been duly authorized by its
partners/members/managers as applicable and no further action of
any party is necessary; the execution and performance of this
Security Agreement will not violate or contravene any provisions
of law or regulation or any partnership agreement, articles of
organization, operating agreement or other agreement to which it
is a party or by which it is bound; and no consent or approval of
any governmental agency or authority is required in making or
performing the obligations under this Security Agreement.
[ ] The Owner is an entity which is not registered; the execution and
performance of this Security Agreement have been duly authorized
by all necessary party/ies and no further action of any party is
necessary; the execution and performance of this Security
Agreement will not violate or contravene any provisions of law or
regulation or agreement to which Owner is a party or by which it
is bound; and no consent or approval of any governmental agency or
authority is required in making or performing the obligations
under this Security Agreement; the Owner's place of business (if
only one place of business) or chief executive office (if more
than one place of business) is located in ______________________.
c. All information supplied and statements made to SunTrust in any
financial or credit statement or application are true, correct,
complete, valid and genuine in all material respects.
d. [ ] (Check, if applicable) The Owner further represents that the
Collateral is being acquired with funds simultaneously advanced to the
Borrower by SunTrust, and such funds will be used for no other purpose.
e. If Collateral will not be held by SunTrust, the primary Collateral
location will be n/a; the Owner will maintain the Collateral in the
above location(s). The Collateral shall not be permanently moved from
the a location(s) without the prior written consent of SunTrust.
f. The Owner represents and warrants, as applicable to the type of
collateral pledged, that:
(i) The Collateral is valid and genuine and represents a bona fide,
binding, legal obligation of the maker, issuer, or grantor, and
all signatures are genuine;
(ii) The Collateral is in full force and effect and is not in default
and no prepayments have been made on any note;
(iii) The Collateral is not subject to any assignment, claim, lien,
right of setoff or security interest of any other party;
(iv) Unless otherwise stated, the face amount on the Collateral is
the correct amount actually and unconditionally due or to become
due according to the terms of the Collateral, and such amount is
not and will not become disputed or subject to any setoff,
credit, deduction, or counterclaim;
(v) If the Collateral is a secured note or other instrument, the
lien or security interest represented thereby is not subject to
a prior claim, lien, or security interest of any other party,
unless otherwise stated herein, or in the document evidencing
such security; and the security has been properly perfected by
the filing or recording of all necessary financing statements,
security instruments or other documents and the payment of all
recording, transfer and other taxes and fees made in the
appropriate public offices.
CHOICE OF LAW. Owner agrees that certain material events and occurrences
relating to this Security Agreement bear a reasonable relationship to the laws
of Florida. This Security Agreement shall be governed by the laws of such
jurisdiction and, unless applicable law provides otherwise, in the event of any
legal proceeding arising out of or related to this Security Agreement, Owner
consents to the jurisdiction and venue of any court located in such
jurisdiction. Unless otherwise specified, "Uniform Commercial Code" as used
herein shall refer to the Uniform Commercial Code of such jurisdiction, both
current and as it may be amended or revised from time to time in the future.
COVENANTS AND AGREEMENTS.
a. The Owner shall furnish to SunTrust such financial and business
information and reports in form and content satisfactory to SunTrust as
and when SunTrust may from time to time require.
b. The Owner, if a corporation, shall maintain its corporate existence,
and if another entity shall maintain such entity standing, in each case
in good standing and shall not consolidate or merge with or acquire the
stock or other ownership interest of any other corporation or entity
without the prior written consent of SunTrust; the Owner shall, at the
request of SunTrust, qualify as a foreign corporation or other
applicable entity and obtain all requisite licenses and permits in each
jurisdiction where the Owner does business.
c. The Owner shall notify SunTrust in writing at least 30 days prior to
any change of its name or structure or change in its state of
residence, jurisdiction of registration or organization, principal
place of business or chief executive office.
d. The Owner will not pledge or grant any security interest in any of the
Collateral to anyone except SunTrust, or permit any lien or encumbrance
to attach to any of the Collateral, or any levy to be made on the
Collateral, or any financing statement (except financing statements in
favor of SunTrust) to be on file against the Collateral.
e. Owner hereby constitutes and appoints any officer or employee of
SunTrust as its true and lawful attorney-in-fact (i) to transfer the
Collateral into SunTrust's name or the name of its nominee, but
SunTrust's failure to do so shall not be interpreted to be a waiver of
any interest, and (ii) to do and perform all other acts and things
necessary, proper and requisite to carry out the intent of this
Security Agreement. The power herein granted shall be deemed to be
coupled with an interest and may not be revoked until the Obligations
have been paid in full, including all expenses payable by Owner and no
amounts may be re-borrowed.
f. The Owner agrees to pay on demand all legal expenses including
reasonable attorneys' fees (in the amount of 15% of the principal and
interest secured hereby if this agreement is governed by the laws of
Georgia), as permitted by applicable law, any appraisal fees and all
expenses incurred or paid by SunTrust in protecting or enforcing the
rights of SunTrust under this Security Agreement, including SunTrust's
right to take possession of the Collateral and its proceeds, and to
hold, prepare for sale, sell and dispose of the Collateral.
g. This Security Agreement shall be a continuing agreement and shall
remain in full force and effect irrespective of any interruptions in
the business relations of the Borrower with SunTrust and shall apply to
any ultimate balance which shall remain due by the Borrower to
SunTrust; provided, however, that the Owner may by written notice
terminate this Security Agreement with respect to all Obligations of
the Borrower incurred or contracted by the Borrower or acquired by
SunTrust after the date on which such notice is personally delivered to
or mailed via registered mail to the SunTrust address set forth below
and accepted by SunTrust.
h. At any time, and from time to time, whether before or after default,
without notice, and at the expense of the Owner, SunTrust in its name
or in the name of its nominee or of the Owner, may, but shall not be
obligated to:
(i) Notify the obligors on any Collateral to make payment to
SunTrust of any or all interest, principal payments and other
sums now or hereafter payable upon or on account of the
Collateral, may collect the same by legal proceedings or
otherwise, and perform any contract or endorse in the name of
the Owner any checks, drafts, notes, instruments or other
documents which constitute the Collateral;
(ii) Enter into any extension, reorganization, deposit, merger or
consolidation agreement or any agreement in any way relating to
or affecting the Collateral and in connection therewith may
deposit or surrender control of the Collateral, accept other
property in exchange for the Collateral and do and perform such
acts and things as it may deem proper, and any money or property
received in exchange for the Collateral may be either applied to
any Obligations or may be held by SunTrust pursuant to the
provisions of this Security Agreement;
(iii) Make any compromise or settlement it deems desirable or proper
with reference to the Collateral;
(iv) Insure, process and preserve the Collateral; and
(v) Exercise as to the Collateral all the rights, powers and
remedies of an owner without further consent of the Owner.
i. SunTrust shall have no obligation or duty to collect or to present any
of the Collateral for payment, redemption, or conversion to another
class or type of security, or to sell or redeem any of the Collateral
if it threatens to decline in value, or to exercise any other right
whatsoever with respect to the Collateral, except pursuant to written
instructions from the Owner which are acceptable to SunTrust in its
reasonable discretion.
j. SunTrust shall be deemed to have exercised reasonable care in the
custody and preservation of any of the Collateral in its control or
possession if it takes such action for that purpose as Owner requests
in writing, but failure of SunTrust to comply with any such request
shall not of itself be deemed a failure to exercise reasonable care,
and no failure of SunTrust to preserve or protect any rights in the
Collateral against other parties, or to do any act with respect to the
custody or preservation of the Collateral not so requested by Owner,
shall be deemed a failure to exercise reasonable care in the custody or
preservation of the Collateral.
k. Owner agrees to give SunTrust written directions as to specific action
to take in the event the issuer of any security or any other person or
entity takes action which will give the owner of the Collateral any
choice to make with respect thereto. SunTrust may act or refuse to act
in compliance with such directions in its reasonable discretion. In the
event Owner fails to direct SunTrust as provided above in time to give
SunTrust a reasonable time to act thereon, Owner will have and make no
claim against SunTrust for such action or inaction.
l. SunTrust shall have no responsibility for ascertaining any maturities,
calls, conversions, exchanges, offers, tenders or similar matters
relating to any of the Collateral or for informing Owner with respect
to any such matters irrespective of whether SunTrust has, or may be
deemed to have, knowledge thereof and irrespective of whether SunTrust
may have exercised any right to have the Collateral registered in the
name of SunTrust or its nominee.
m. SunTrust shall be under no obligation to monitor the financial
condition of the issuer of any Collateral; and Owner will stay informed
of changes or potential changes affecting the Collateral (including,
but not limited to rights to convert, rights to subscribe, payment of
dividends or interest, reorganizations or other exchange, tender offers
and voting rights) and Owner agrees that SunTrust shall not have any
responsibility or liability to inform Owner of any such changes or
potential changes or for taking any action or omitting to take any
action with respect thereto.
n. Any and all payments, dividends, or other distributions (including
stock redemption proceeds), or other securities in respect of or in
exchange for Collateral consisting of securities, whether by way of
dividends, stock dividends, recapitalization, mergers, consolidations,
stock splits, combinations or exchanges of shares or otherwise,
received by Owner shall be held by Owner in trust for SunTrust and
Owner shall immediately deliver same to SunTrust in the exact form
received (with any necessary endorsements) to be held as part of the
Collateral; provided that Owner may retain ordinary interest and cash
dividends unless and until SunTrust requests the same to be paid and
delivered to SunTrust (which SunTrust may request either before or
after the occurrence of an Event of Default) or until SunTrust has
registered the Collateral in SunTrust's name.
o. Owner agrees that if the Collateral consists of securities or
investment property and if the Collateral should hereafter decline in
value or otherwise become unacceptable to SunTrust, and Owner and
SunTrust have not entered into a separate written agreement concerning
maintenance of the value or acceptability of the Collateral, Owner will
grant to SunTrust, or cause to be so granted, within three (3) days
after receiving written notice therefor from SunTrust, a security
interest or lien in such additional property or assets as may be
reasonably satisfactory to SunTrust in all respects. Owner agrees that
if the Collateral should hereafter decline in value or otherwise become
unacceptable to SunTrust, and Owner and SunTrust have entered into a
written agreement concerning maintenance of the value or acceptability
of the Collateral, then Owner shall provide SunTrust a security
interest or lien in such additional property or assets in accordance
with the provisions of said written agreement. In any event, Owner
agrees to execute such documents or instruments and do all other acts
and things, or cause such documents to be executed or things to be
done, as SunTrust may reasonably request in order to properly take and
perfect SunTrust's security interest or lien in such additional
property or assets.
p. The Owner will defend the Collateral against the claims and demands of
all parties. The Owner will not, without prior written consent of
SunTrust, grant any security interest in the collateral and will keep
it free from any lien, encumbrance or security interest.
ADDITIONAL COVENANTS AND AGREEMENTS IF BORROWER IS DIFFERENT THAN OWNER.
If Borrower is different than Owner, then so long as any of the Obligations
remain outstanding or so long as this Security Agreement shall remain in effect
Owner covenants and agrees as follows: (a) Owner hereby expressly consents to
and adopts any agreements which Borrower has or will enter into with SunTrust
regarding any of the Obligations or the Collateral; (b) Owner hereby agrees that
the Collateral shall be subject to disposition in accordance with the terms and
conditions of this Security Agreement and any agreements executed by Borrower in
connection with any of the Obligations or the Collateral; (c) Owner will not be
subrogated to SunTrust's rights to any other collateral and any proceeds thereof
in which SunTrust holds a security interest to secure payment of any of the
Obligations; (d) Owner agrees that SunTrust may at any time and from time to
time, without notice to, or the consent of, Owner: (i) retain any of the
Collateral in satisfaction of any of the Obligations to the extent permitted by
applicable law, (ii) retain or obtain a security interest or lien in any
property in addition to the Collateral to secure payment or performance of any
of the Obligations, (iii) allow or cause any Obligations to be incurred, (iv)
retain or obtain persons or entities that are primarily or secondarily obligated
upon any of the Obligations other than the Borrower, (v) extend or renew any of
the Obligations for any period (whether or not longer than the original term),
(vi) release, compromise or modify any of the Obligations, (vii) release, in
whole or in part, any person or entity primarily or secondarily obligated upon
any of the Obligations or enter into any compromise with respect to the
obligation of any such person or entity relative to any of the Obligations,
(viii) fail to perfect or release, with or without consideration, SunTrust's
security interest or lien on property other than the Collateral which may at any
time secure payment or performance of any of the Obligations, (ix) accept
substitutions or exchanges for any property other than the Collateral which may
at any time secure payment or performance of any of the Obligations, (x)
exercise its rights as a secured party and dispose of the Collateral without
having first resorted to any property securing any of the Obligations other than
the Collateral and without having first proceeded against or demanded payment
from any person or entity primarily or secondarily obligated upon any of the
Obligations; and (e) Owner specifically waives any and all rights pursuant to
O.C.G.A. Sec. 10-7-24 or T.C.A. Sec. ▇▇-▇▇-▇▇▇ et seq. if this Security
Agreement is governed by the laws of Georgia or Tennessee and the same or
similar provision contained in the Uniform Commercial Code of any other state or
states which may govern this Security Agreement.
EVENTS OF DEFAULT. As used herein the term "Obligor" shall individually,
collectively, jointly and severally refer to Borrower, Owner and any other
person or entity that is primarily or secondarily liable upon all or any part of
the Obligations secured hereby 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 all or any part of the Obligations.
Unless prohibited by applicable law, 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 to pay when due, whether by acceleration or
otherwise, any sum constituting all or any part of the Obligations;
b. the failure of any Obligor to perform any covenant, promise or
obligation contained in this Security Agreement, any document
evidencing any of the Obligations, or any other agreement to which any
Obligor and SunTrust are parties;
c. the breach of any of any Obligor's representations or warranties in
this Security Agreement 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 or other ownership interest 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 Security Agreement;
g. the insolvency or inability to pay debts as they mature of any Obligor,
the filing of any petition or the commencement of any proceeding by an
Obligor for relief under any bankruptcy or insolvency law, or any law
relating to the relief of debtors, readjustment of indebtedness, debtor
reorganization, or composition or extension of debt;
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. any deterioration or impairment of the Collateral or any decline or
depreciation in the value of the Collateral (whether actual or
reasonably anticipated) which causes the Collateral in the judgment of
SunTrust to become unsatisfactory as to character or value;
j. a determination by SunTrust that a material adverse change in the
financial condition of any Obligor has occurred since the date of this
Security Agreement;
k. any Obligor commits fraud or makes a material misrepresentation at any
time in connection with this Security Agreement, the Obligations or the
Collateral;
l. the Collateral or any part thereof is located for more than thirty
consecutive days outside the state or states in which the Collateral is
to be located pursuant to this Security Agreement or if the Collateral
or any part hereof is removed from such state with the intent that it
will be located outside such state for more than thirty days;
m. should the state of organization or registration of Owner (if an
entity) change or
n. any other act or circumstance occurs or exists which leads SunTrust to
deem itself insecure.
REMEDIES UPON DEFAULT; ACCELERATION OF OBLIGATIONS. Unless prohibited by
applicable law, the Obligations secured hereby shall automatically and
simultaneously mature and become due and payable, without notice or demand, upon
the filing of any petition or the commencement of any proceeding by or against
an Obligor for relief under any bankruptcy or insolvency law, or any law
relating to the relief of debtors, readjustment of indebtedness, debtor
reorganization, or composition or extension of debt. Unless prohibited by
applicable law, upon the occurrence of any one or more of the other Events of
Default described above, the Obligations secured hereby shall, at the option of
SunTrust, immediately mature and become due and payable, without notice or
demand. If all or any part of the Obligations secured hereby are not paid as and
when due and payable, whether by acceleration or otherwise, then SunTrust may,
at its option, without notice or demand of any kind: (a) transfer all or any
part of the Collateral into the name of SunTrust or its nominee, at Owner's
expense, with or without disclosing that such Collateral is subject to
SunTrust's security interest; (b) enter upon premises upon which the Collateral
is located and, to the extent permitted by law without legal process, take
exclusive possession of the Collateral, and redeem the Collateral, or any part
thereof (irrespective of redemption penalty); (c) appropriate and apply toward
payment of such of the Obligations, and in such order of application, as
SunTrust may from time to time elect, all or any part of any balances, credits,
items or monies in any bank deposit or deposit account constituting a part of
the Collateral; (d) sell the Collateral at public or private sale, either in
whole or in part, and SunTrust may purchase the Collateral at any such public
sale and at any private sale as permitted by law. Such sale shall result in the
sale, conveyance and disposition of all right, title and interest of Owner in
all or any part of the Collateral which is the subject of such a disposition and
SunTrust is authorized as attorney-in-fact for Owner to sign and execute any
transfer, conveyance or instrument in writing that may be necessary or desirable
to effectuate any such disposition of the Collateral, which power shall be
coupled with an interest; and (e) exercise all other rights of a secured party
under the Uniform Commercial Code and all other rights under law or pursuant to
this Security Agreement, all of which shall be cumulative. If any notification
of intended disposition of any Collateral is required by law, reasonable
notification shall be deemed given if written notice is deposited in the U.S.
Mall, first class or certified postage prepaid, addressed to Owner and such
other persons or entities as SunTrust deems to be appropriate, stating all items
required by applicable statutes, including the time and place of any public sale
or the time after which any private sale or disposition is to be made, at least
ten (10) days prior thereto. The proceeds of any disposition of the Collateral
shall be applied in the following order (i) First, to pay all costs and expenses
associated with the retaking, holding, preparation and disposition of the
Collateral; (ii) Then to pay attorneys' fees; (iii) Next, to pay all accrued but
unpaid interest upon the Obligations in such order as SunTrust may determine in
its discretion; and (iv) Finally, to all unpaid principal outstanding upon the
Obligations, whether or not due and payable, in such order as SunTrust may
determine in its discretion. Any remaining surplus shall be paid to Owner or
otherwise in accordance with law. If the proceeds of such disposition are
insufficient to pay the Obligations in full, Borrower and all other persons or
entities liable thereon shall remain fully obligated to SunTrust for the unpaid
balance thereof.
EXECUTION BY MORE THAN ONE PARTY. The term "Owner" as used in this Security
Agreement shall, if this instrument is signed by more than one party, mean the
"Owner and each of them" and each shall be jointly and severally obligated and
liable. If any party is a partnership or limited liability company, the
agreements and obligations on the part of the Owner shall remain in force and
applicable regardless of any changes in the parties composing the partnership or
limited liability company and the term "Owner" shall include any altered or
successive partnership or limited liability company and the predecessor
partnership or limited liability company and its partners or members/managers
shall not be released from any obligation or liability.
WAIVERS BY THE OWNER. To the extent permitted by applicable law, the Owner
hereby waives (a) notice of acceptance of this Agreement and of any extensions
or renewals of credit by SunTrust to the Borrower; (b) presentment and demand
for payment of the Obligations; (c) protest and notice of dishonor or default to
the Owner or to any other party with respect to the Obligations; (d) all other
notices to which the Owner might otherwise be entitled; and (e) if for business
purposes, the benefit of any homestead exemption. To the extent permitted by
applicable law, the Owner further waives any right to require that any action be
brought against the Borrower or any other party, the right to require that
resort be had to any security or to any balance of any deposit account or credit
on the books of SunTrust in favor of the Borrower or any other party, the right
to redeem the Collateral and to object to SunTrust's proposal to retain the
Collateral in satisfaction of any of Obligations and any right to obtain
injunctive or other relief relative to SunTrust's sale or other disposition of
the Collateral and to recover losses caused by SunTrust's failure to approve or
correct any list of Collateral provided to SunTrust for any purpose by any
person or entity. Owner waives all rights, claims and defenses based on
principles of suretyship.
NO OBLIGATION TO EXTEND CREDIT. This Security Agreement shall not be construed
to impose any obligation on SunTrust to extend or continue to extend any credit
at any time.
INDEMNITY. The Owner agrees to indemnify and hold harmless SunTrust, its
subsidiaries, successors, and assigns and their respective agents, directors,
employees, and officers from and against any and all complaints, claims,
defenses, demands, actions, bills, causes of action (including, without
limitation, costs and reasonable fees), and losses of every nature and kind
whatsoever, which may be raised or sustained by any directors, officers,
employees, shareholders, creditors, regulators, successors in interest, or
receivers of the Borrower or any third party as a result of or arising out of,
directly or indirectly, SunTrust extending credit as evidenced by the
Obligations to the Borrower, and taking the Collateral as security for the
Obligations, and the Owner agrees to be liable for any and all judgments which
may be recovered in any such action, claim, proceeding, suit, or ▇▇▇▇, including
any compromise or settlement thereof, and defray any and all expenses,
including, without limitation, costs and attorneys' fees, that may be incurred
in or by reason of such actions, claims, proceedings, suits, or bills. This
obligation to indemnify shall survive the payment of the Obligations and the
satisfaction of this Security Agreement.
FINANCING STATEMENTS AND ADDITIONAL DOCUMENTATION. SunTrust is authorized to
file such financing statements and amendments as SunTrust deems necessary to
perfect, continue or assure Its security interest in the Collateral and the
Owner hereby ratifies any financing statement filed previously by SunTrust. The
Owner will deliver such instruments of future assignment or assurance, and such
other agreements, as SunTrust may from time to time request to carry out the
intent of this Security Agreement, and will join with SunTrust in executing any
documents in form satisfactory to SunTrust, and hereby authorizes SunTrust to
sign for Owner, or to file without signature, any financing statements,
amendments and other documents and instruments from time to time as SunTrust may
deem advisable, and pay any cost of filing the same, including all recordation,
transfer, indebtedness and other taxes and fees, deemed advisable by SunTrust.
SUCCESSOR IN INTEREST; SUNTRUST AS COLLATERAL AGENT. This Security Agreement
shall be binding upon the Owner, its successors and assigns, and the benefits
hereof shall inure to SunTrust, its successors and assigns. Notwithstanding the
foregoing, Owner shall not assign Owner's rights or obligations under this
Security Agreement without SunTrust's prior written consent. SunTrust Bank shall
serve as collateral agent on behalf of itself and present and future affiliates.
MISCELLANEOUS. (a) Each and every power given herein is coupled with an interest
and is irrevocable by death or otherwise. (b) The captions of the paragraphs of
this Security Agreement are for convenience only and shall not be deemed to
constitute a part hereof or used in construing the intent of the parties. (c) If
any part of any provision of this Security Agreement shall be invalid or
unenforceable under applicable law, such part shall be ineffective to the extent
of such invalidity only, without in any way affecting the remaining parts of
such provision or the remaining provisions of this Security Agreement. (d) This
Security Agreement shall not be modified or amended except in a writing signed
by Owner and SunTrust. (e) All representations, warranties, covenants and
agreements contained herein or made in writing by Owner in connection herewith
shall survive the execution and delivery of this Security Agreement and any and
all notes, other agreements, documents and writings relating to or arising out
of any of the foregoing or any of the Obligations. (f) All rights and remedies
of SunTrust expressed herein are in addition to all other rights and remedies
possessed by SunTrust under applicable law or other agreements, including rights
and remedies under any other agreement or instrument relating to any of the
Obligations or any security therefor. (g) No waiver by SunTrust of any of its
rights or remedies or of any default shall operate as a waiver of any other
right or remedy or of any other default or of the same right or remedy or of the
same default on a future occasion. No delay or omission on the part of SunTrust
in exercising any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by SunTrust of any right or remedy shall preclude any
other or further exercise thereof or the exercise of any other right or remedy.
No action of SunTrust permitted hereunder or under any agreement or instrument
relating to any of the Obligations or any security therefor shall impair or
affect the rights of SunTrust in and to the Collateral. (h) All terms as defined
herein shall include both the plural and singular, where applicable. (i) All
notices or communications given to Owner or SunTrust pursuant to the terms of
this Security Agreement shall be in writing and given to Owner and SunTrust at
the address set forth below. 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 mall, postage prepaid,
addressed to the parties hereto at the addresses referred to herein or to such
other addresses as either party may designate to the other party by a written
notice given in accordance with the provisions of this Security Agreement. 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. Mall shall
be deemed given or received on the third (3rd) business day after being
deposited in the U.S. Mall. (j) SunTrust shall not be responsible or liable for
its failure to give notice to Owner of any default in the payment of any amounts
that might become due and owing with respect to the Collateral nor shall
SunTrust be responsible or liable for SunTrust's failure to collect any amounts
payable with respect to the Collateral. (k) SunTrust shall be under no
obligation to monitor the market value of any Collateral, to advise the Owner of
such market value, or to take any action whatsoever to preserve the value of any
Collateral by selling, exchanging or otherwise disposing of such Collateral in
order to avoid any loss to the Owner resulting from a decline in the market
value of such Collateral. (l) SunTrust shall be under no obligation to pay any
amounts owing with respect to any Collateral. (m) This Agreement is in addition
to and not in replacement of any other agreement between Owner and SunTrust. (n)
The term Owner shall include all persons signing below as Owner and the
obligation of such Owners hereunder shall be their joint and several
obligations.
NOTICE: THIS SECTION DOES NOT APPLY TO TRANSACTIONS GOVERNED BY THE LAWS OF
NORTH CAROLINA OR WEST VIRGINIA.
WAIVER OF JURY TRIAL. OWNER 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
TO ANY LITIGATION, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, BASED
HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY AGREEMENT
AND ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
WITH THIS SECURITY AGREEMENT, 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
SECURITY AGREEMENT. FURTHER, OWNER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR
AGENT OF SUNTRUST, NOR SUN TRUST'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.
The undersigned have executed this Security Agreement as of the date first
written above.
Signature(s) of individual Owner(s) Signature(s) of Non-individual Owner(s)
Alico Holding, LLC
---------------------------------------------- (Seal) -----------------------------------
Owner's Signature Owner
---------------------------------------------- (Seal) By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
Owner's Signature ------------------------------
▇.▇. ▇▇▇▇▇▇▇▇▇ as Manager
---------------------------------------------- (Seal) -----------------------------------
Owner's Signature Name and title, printed or typed
---------------------------------------------- (Seal) -----------------------------------
Owner's Signature Owner
By:
--------------------------------
Name and title, printed or typed
ADDRESSES
Owner Address for Purpose of Notice: Alico Holding, LLC; c/o Entity Services Group LLC
-------------------------------------------------
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
--------------------------------------------------
SunTrust Address for Purpose of Notice: SunTrust Bank, AgriFoods Division
--------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------------
EXHIBIT "A"
Attached to and made a part of that certain Security Agreement dated May 5, 2006
by and between Alico Holding, LLC (Owner) and SunTrust Bank.
Collateral:
No. of Shares Stock Name Cusip No. Stock No. Owner(s) Name
------------- ---------- --------- --------- -------------
100,000 Alico, Inc. 016230 10 4 AB 24836 Alico Holding, LLC
100,000 Alico, Inc. 016230 10 4 AB 24837 Alico Holding, LLC
100,000 Alico, Inc. 016230 10 4 AB 24838 Alico Holding, LLC
100,000 Alico, Inc. 016230 10 4 AB 24839 Alico Holding, LLC
100,000 Alico, Inc. 016230 10 4 AB 24840 Alico Holding, LLC
100,000 Alico, Inc. 016230 10 4 AB 24841 Alico Holding, LLC
JD
-----------
Initials
EXHIBIT "B"
Attached to and made a part of that certain Security Agreement (Certificated
Securities, Notes, Instruments, Etc. dated May 5, 2006 by and between Alico
Holding, LLC and SunTrust Bank.
Additional Terms:
In addition to all other Obligations, this Security Agreement shall additionally
secure the prompt and complete payment and performance when due of any
indebtedness, liabilities, or obligations, now existing or hereafter arising,
due or to become due, absolute or contingent, of the Borrowers to the Lender
under any "Financial Contract". For purposes of this provision, the term
"Financial Contract" shall mean (1) An agreement (including terms and conditions
incorporated by reference therein) which is a rate swap agreement, basis swap,
forward rate agreement, commodity swap, commodity option, equity or equity index
swap, bond option, interest rate option, foreign exchange agreement, rate cap
agreement, rate floor agreement, rate collar agreement, currency swap agreement,
cross-currency rate swap agreement, currency option, any other similar agreement
(including any option to enter into any of the foregoing): (2) any combination
of the foregoing; or (3) a master agreement for any of the foregoing together
with all supplements.
Alico Holding, LLC
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇.▇. ▇▇▇▇▇▇▇▇▇ as Manager