Exhibit 10.1
PROMISSORY NOTE
September 29, 2006
(Date)
FOR VALUE RECEIVED, Maui
Pineapple Company, Ltd. , a corporation located at the address
stated below ( “Maker” ) promises, jointly and
severally if more than one, to pay to the order of GE Capital
Public Finance, Inc. or any subsequent holder hereof (each, a
“Payee” ) at its office located at 8400
Normandale Lake Blvd., Suite 470, Minneapolis, MN 55437 or at
such other place as Payee may designate, the principal sum of
Four Million Five Hundred Thousand Dollars and 00/100 (
$4,500,000.00 ), with interest on the unpaid principal
balance, from the date hereof through and including the dates of
payment, at a fixed interest rate of six and sixty-six hundredths
percent (6.66%) per annum (the “Contract Rate” )
at the times (each, a “Payment Date” ) and in
the amounts (each, a “Periodic Installment” )
set forth in Exhibit A hereto. Such installments have been
calculated on the basis of a 360 day year of twelve 30-day
months. Each payment may, at the option of Payee, be
calculated and applied on an assumption that such payment would be
made on its due date.
All payments shall be applied:
first , to interest due and unpaid hereunder and under the
other Debt Documents; second , to all other amounts due and
unpaid hereunder and under the other Debt Documents, and then to
principal due hereunder and under the other Debt Documents.
The acceptance by Payee of any payment which is less than payment
in full of all amounts due and owing at such time shall not
constitute a waiver of Payee’s right to receive payment in
full at such time or at any prior or subsequent time. The
payment of any Periodic Installment prior to its due date shall
result in a corresponding increase in the portion of the Periodic
Installment credited to the remaining unpaid principal
balance.
All amounts due hereunder and under
the other Debt Documents are payable in the lawful currency of the
United States of America. Maker hereby expressly authorizes
Payee to insert the date value is actually given in the blank space
on the face hereof and on all related documents pertaining
hereto.
This Note may be secured by a
security agreement, chattel mortgage, pledge agreement or like
instrument (each of which is hereinafter called a
“Security Agreement” , and collectively with any
other document or agreement related thereto or to this Note, the
“Debt Documents” ).
Time is of the essence hereof.
If Payee does not receive from Maker payment in full of any
Periodic Installment or any other sum due under this Note or any
other Debt Document is not received within ten (10) days after its
due date, Maker agrees to pay a late fee equal to five percent (5%)
on such late Periodic Installment or other sum, but not exceeding
any lawful maximum. Such late fee will be immediately due and
payable, and is in addition to any other costs, fees and expenses
that Maker may owe as a result of such late payment.
Additionally, if (i) Maker fails to make payment of any amount due
hereunder within ten (10) days after the same becomes due and
payable; or (ii) Maker is in default under, or fails to perform
under any term or condition contained in any Debt Document beyond
any applicable grace or cure period, then the entire principal sum
remaining unpaid, together with all accrued interest thereon and
any other sum payable under this Note or any other Debt Document,
at the election of Payee, shall immediately become due and payable,
with interest thereon at the lesser of eighteen percent (18%) per
annum or the highest rate not prohibited by applicable law from the
date of such accelerated maturity until paid (both before and after
any judgment). The application of such 18% interest rate
shall not be interpreted or deemed to extend any cure period set
forth in this Note or any other Debt Document, cure any default or
otherwise limit Payee’s right or remedies hereunder or under
any Debt Document.
Maker may prepay in full, but not in
part, all outstanding amounts hereunder before they are due on any
scheduled Payment Date upon at least thirty (30) days’ prior
written notice to Payee. Payee is authorized and entitled to
apply any amounts paid by Maker as a prepayment of indebtedness to
delinquent interest or other amounts due and owing from Maker to
Payee hereunder and under any other Debt Documents before
application of such funds to principal outstanding
hereunder.
If Maker makes a prepayment of this
Note for any reason, Maker shall pay irrevocably and in full to
Payee (i) all outstanding principal amounts, (ii) all accrued
interest, (iii) the Prepayment Fee (as defined below) and (iv) any
and all other amounts due hereunder or under the other Debt
Documents. Maker specifically acknowledges that, to the
fullest extent allowed by applicable law, it shall be liable for
the Prepayment Fee on any acceleration hereof or under the other
Debt Documents. In the event of an acceleration hereof or
under the other Debt Documents, the Prepayment Fee shall be
determined as if (a) Maker prepaid this Note in full immediately
before such acceleration and (b) the prepayment notice referred to
above was received by Payee thirty (30) days prior to such
date.
For purposes hereof,
“Prepayment Fee” shall be an amount equal to
(i) Make Whole Amount plus (ii) an additional sum equal
to the following percentage of remaining principal balance for
prepayments occurring in the indicated period: Two percent
(2%) (for prepayments occurring prior to the first anniversary
of the date hereof), One percent (1%) (for prepayments
occurring on and after the first anniversary of the date hereof but
prior to the second anniversary of the date hereof) and zero
percent (0%) (for prepayments occurring any time thereafter).
For the purpose hereof, the term “Make Whole Amount”
means (i) the net present value of the remaining scheduled
principal and interest payments (including any balloon or other
amount of principal payable that but for the
prepayment of this Note would be
payable on or prior to the scheduled maturity date hereof),
discounted to the prepayment date at a per annum interest rate
equal to the then Reinvestment Rate (as defined below) minus
(ii) the principal
