Exhibit 10.2
GUARANTY AGREEMENT
Dated as of September 29,
2006
For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and
to induce GE Capital Public Finance, Inc. , a Delaware
corporation (herein, with its participants, successors and assigns,
“Lender”), at its option, to provide financing to or
for the account of Maui Pineapple Company, Ltd.
(“Borrower”) or to engage in any other transactions
with Borrower, the undersigned hereby: (a) absolutely and
unconditionally guarantees to Lender the full and prompt payment
when due, whether at maturity or earlier by reason of acceleration
or otherwise in accordance with the terms of the Master Security
Agreement (as defined below) and the Promissory Note (as defined
below), of any and all present and future debts, liabilities and
obligations owed by Borrower to Lender evidenced by or arising out
of the Master Security Agreement and Collateral Schedule No. 1
thereto, both dated as of September 29, 2006 (the “Master
Security Agreement”) between Lender and Borrower and the
Promissory Note dated September 29, 2006 executed by Borrower and
payable to the order of Lender, and any and all extensions,
renewals, modifications, supplements or amendments thereto or
thereof and any related agreements (the
“Indebtedness”), and (b) absolutely and
unconditionally guarantees to Lender the full and timely
performance by Borrower of all of its obligations under the Master
Security Agreement and the Promissory Note.
1.
No act or thing need occur to establish the liability of the
undersigned hereunder, and no act or thing, except full payment and
discharge of all Indebtedness, shall in any way exonerate the
undersigned hereunder or modify, reduce, limit or release the
liability of the undersigned hereunder. This is an absolute,
unconditional and continuing guaranty of payment of the
Indebtedness. The dissolution or adjudication of bankruptcy
of the undersigned shall not revoke this Guaranty Agreement (this
“Agreement”).
2.
The undersigned represents and warrants to Lender that (a) the
undersigned has a direct and substantial economic interest in
Borrower and expects to derive substantial benefits therefrom and
from any loans, credit transactions, financial accommodations,
discounts, purchases of property and other transactions and events
resulting in the creation of Indebtedness guaranteed hereby (this
Agreement shall be effective and enforceable by Lender without
regard to the receipt, nature or value of any such benefits);
(b) the undersigned executed this Agreement without any intent
to hinder, delay, or defraud any current or future creditor of the
undersigned; (c) the undersigned is not insolvent and will not
become insolvent as a result of the execution of this Agreement;
(d) the undersigned is not engaged and is not about to engage
in any business or transaction for which any property remaining
with the undersigned has an unreasonably small capital or for which
the remaining assets of the undersigned were unreasonably small in
relation to the business of the undersigned or the transaction
contemplated by this Agreement; (e) the undersigned does not
intend to incur, and does not believe or reasonably should not
believe that the undersigned will incur, debts beyond the
undersigned’s ability to pay such debts as they become due;
(f) the undersigned is a corporation duly organized, validly
existing and in good standing under the laws of the State of Hawaii
(the “State”), has power to enter into this
Agreement and by proper corporate
action has duly authorized the execution and delivery of this
Agreement; (g) the undersigned is in good standing and is duly
licensed or qualified to transact business in the State and, except
in each case to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect (as
defined below), in all jurisdictions where the character of the
property owned or leased or the nature of the business transacted
by it makes such licensing or qualification necessary; (h) the
undersigned has been fully authorized to execute and deliver this
Agreement under the terms and provisions of the resolutions of its
board of directors, or by other appropriate official approval, and
further represents, covenants and warrants that all requirements
have been met, and procedures have occurred in order to ensure the
enforceability of this Agreement and this Agreement has been duly
authorized, executed and delivered; (i) the officer of the
undersigned executing this Agreement and any related documents has
been duly authorized to execute and deliver this Agreement and such
related documents under the terms and provisions of a resolution of
the undersigned’s directors; (j) this Agreement
constitutes a valid and legally binding obligation of the
undersigned enforceable against the undersigned in accordance with
its respective terms, except to the extent limited by bankruptcy,
reorganization or other laws of general application relating to or
affecting the rights and remedies of creditors and by general
equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law; and (k) the
execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the fulfillment of the terms
and conditions hereof do not and will not violate any law, rule,
regulation or order, conflict with or result in a breach of any of
the terms or conditions of the articles of incorporation or bylaws
of the undersigned or of any material agreement or instrument to
which the undersigned is now a party and does not and will not
constitute a default under any of the foregoing or result in the
creation or imposition of any liens, charges or encumbrances of any
nature upon any of the property or assets of the undersigned
contrary to the terms of any instrument or agreement to which the
undersigned is a party or by which it is bound.
“Material Adverse Effect” means a material adverse
effect or change on (a) the business, assets, operations,
properties or condition (financial or otherwise) of the
undersigned, (b) the ability of the undersigned to perform or
pay its obligations hereunder or on any other material obligation
in accordance with the terms thereof, or (c) the validity or
enforceability of this Agreement or the rights and remedies
available to Lender hereunder.
3.
If the undersigned shall be or become bankrupt or insolvent
(however defined), then Lender shall have the right to declare
immediately due and payable, and the undersigned shall forthwith
pay to Lender, the full amount of all Indebtedness whether due and
payable or unmatured. If the undersigned voluntarily commences or
there is commenced involuntarily against the undersigned a case
under the United States Bankruptcy Code, the full amount of all
Indebtedness, whether due and payable or unmatured, shall be
immediately due and payable without demand or notice
thereof.
4.
The undersigned shall not exercise or enforce any right of
contribution, reimbursement, recourse or subrogation available to
the undersigned as to any Indebtedness, or against any person
liable therefor, or as to any collateral security
therefor.
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5.
The undersigned shall pay or reimburse Lender for all costs and
expenses (including reasonable attorneys’ fees and legal
expenses) incurred by Lender in connection with the protection,
defense or enforcement of this Agreement in any litigation or
bankruptcy or insolvency proceedings.
6.
Lender shall not be obligated by reason of its acceptance of this
Agreement to engage in any transactions with or for Borrower.
Whether or not any existing relationship between the undersigned
and Borrower has been changed or ended, Lender may enter into
transactions resulting in the creation or continuance of
Indebtedness and may otherwise agree, consent to, or suffer the
creation or continuance of any Indebtedness, without any consent or
approval by the undersigned and without any prior or subsequent
notice to the undersigned. The liability of the undersigned
shall not be affected or impaired by any of the following acts or
things (which Lender is expressly authorized to do, omit or suffer
from time to time, both before and after revocation of this
Agreement, without consent or approval by or notice to the
undersigned): (a) any acceptance of collateral security,
guarantors, accomm
