Exhibit 10.66
March 25, 2009
CONFIDENTIAL
ML Macadamia Orchards, L.P.
ML Resources, Inc.
238 Hawaii Belt Road
Hilo, Hawaii 96720
Attention: Dennis Simonis
Re: Revolving Line of Credit Maturity Date
Extension and Amendment
Ladies and Gentlemen:
American AgCredit, PCA (“
Lender ,” “ we ” or “
us ”), is pleased to commit to provide an extension of
the Maturity Date of the Revolving Loan Promissory Note and an
amendment to the Second Amended and Restated Credit Agreement dated
July 8, 2008 (the “Credit Agreement” and combined
with the amendment and extension, the “Amended Revolving
Facility”), on the terms and subject to the conditions set
forth in this letter and the Summary of General Terms attached
hereto (collectively, the “ Commitment Letter
”). Capitalized terms used in this Commitment Letter
without definition shall have the meanings ascribed to them in the
Credit Agreement. The purpose of the Amended Revolving
Facility is to provide financing for the general business purposes
of ML Macadamia Orchards, L.P.
By execution and return of this
Commitment Letter you agree that you will be jointly and severally
responsible for and will pay all reasonable out-of-pocket fees,
costs, and expenses which may be incurred by Lender and its
affiliates and agents in connection with this Commitment Letter and
the Amended Revolving Facility, including reasonable fees, costs,
and expenses of counsel, title fees as well as recording and filing
fees, (collectively, the “ Reimbursable Expenses
”). The Reimbursable Expenses shall be payable by you
to us regardless of whether the financing transaction shall be
consummated.
You understand that Lender intends
to participate the Amended Revolving Facility to other institutions
and you agree to provide such cooperation with Lender’s
efforts to do so as Lender may reasonably request, it being
understood, however, that successful participation of the Amended
Revolving Facility is not a condition to Lender’s commitment
hereunder.
You jointly and severally agree to
(a) indemnify and hold harmless Lender and its affiliates,
officers, directors, employees, attorneys, advisors, and agents
(each an “ Indemnified Person ”) from and
against any losses, claims, damages, liabilities or other expenses
to which an Indemnified Person may become subject, insofar as such
losses, claims, damages, liabilities (or actions or other
proceedings commenced or threatened in respect thereof) or other
expenses arise out of or in any way relate to or result from this
Commitment Letter, the Amended Revolving Facility, the payment of
fees and expenses in connection with the foregoing, the extension
of the financing contemplated hereby, and the other transactions
contemplated by this Commitment Letter or any use or intended use
of the proceeds of the extension of credit contemplated hereby,
(b) reimburse each Indemnified Person, upon such Indemnified
Person’s demand, for any reasonable legal or other expenses
incurred in connection with investigating, defending or
participating in any such loss, claim, damage, liability, or action
or other proceeding, whether
commenced or threatened (whether or not any such
Indemnified Person is a party to any action or proceeding out of
which any such expenses arise), except, with respect to both
clauses (a) and (b) above, in the case of any Indemnified
Person, to the extent that it is determined in a final
nonappealable judgment by a court of competent jurisdiction that
such losses, claims, damages, liabilities or other expenses are
caused by the gross negligence or willful misconduct of such
Indemnified Person or its affiliates, officers, directors,
attorneys, advisors, or agents, and (c) provide Lender and its
affiliates with all information required for its due diligence
analysis of any such indemnified matter, regardless of when, by
whom, or for whom prepared. The obligations to indemnify each
Indemnified Person and to pay such legal and other expenses shall
remain effective until the initial funding under a definitive
financing agreement and thereafter the indemnification and expense
reimbursement obligations contained herein shall be superseded by
those contained in such definitive financing agreement. No
Indemnified Person shall be liable for any damages arising from the
use by others of information or other materials obtained through
the internet, Intralinks or similar information transmission
systems in connection with the Amended Revolving Facility.
The foregoing provisions of this paragraph shall be in addition to
any rights that any Indemnified Person may have at common law or
otherwise. Your obligation to so indemnify such Indemnified
Persons and pay such expenses shall remain effective regardless of
whether a definitive financing agreement is executed. By your
acceptance of this Commitment Letter, you agree that neither Lender
nor any other Indemnified Person shall be responsible or liable to
any other party hereto or any other person for consequential,
indirect, punitive, or exemplary damages which may be alleged as a
result of this Commitment Letter or the transactions contemplated
hereby, except to the extent that such damages are caused by the
gross negligence or willful misconduct of such Indemnified Person
or its affiliates, officers, directors, attorneys, advisors, or
agents. The provisions of this paragraph shall be in addition
to any rights that Lender or any other Indemnified Person may have
at common law or otherwise, including any right of
contribution.
The commitment of Lender hereunder
shall remain in effect until the earlier of:
(a) June 30, 2009, or (b) Lender’s written
notice to you that (i) a condition described in this
Commitment Letter cannot be satisfied, (ii) you have failed to
perform any material obligations under this Commitment Letter,
(iii) there is filed against the Borrower or any member
thereof, a petition in bankruptcy or insolvency or for
reorganization or the appointment of a receiver, trustee or
liquidator, (iv) a change that has occurred that has a
Material Adverse Effect on the financial condition of the Borrower,
or (v) the macadamia orchards owned by ML Macadamia Orchards,
L.P. have suffered any material damage or destruction and the same
is not restored to the satisfaction of Lender prior to the Closing
Date, and that Lender has terminated its commitment hereunder by
reason thereof. Notwithstanding the expiration or termination
of Lender’s commitment with respect to providing financing
hereunder, the provisions set forth herein with respect to the
payment of fees and expenses, confidentiality, indemnification,
governing law, consent to jurisdiction and venue and the jury trial
waiver shall survive such expiration or termination.
This Commitment Letter is
confidential and shall not be disclosed by any of the parties
hereto to any person other than such party’s accountants,
attorneys and other advisors, and, in the case of Lender, its
affiliates and prospective participants, and then only on a
confidential basis and in connection with the Amended Revolving
Facility. Any disclosure to an advisor may be made for the
sole purpose of evaluating and advising on the offer of financing
made in this letter and may not be used by such advisor in
formulating any offer of financing by such advisor or an
affiliate. Additionally, any of the parties hereto may make
such disclosures of this letter as are required by regulatory
authority, law or judicial process or as may be required or
appropriate in response to any summons or subpoena or in connection
with any litigation; provided that such party will use its
commercially reasonable efforts to notify the other parties hereto
of any such disclosure prior to making such disclosure.
We hereby notify you that pursuant
to the requirements of the USA PATRIOT Act, Title III of Pub. L.
107-56 (signed into law October 26, 2001) (the “
Act ”), we may be required to obtain, verify and
record information that identifies you, which information would
include name and address and other information that would allow us
to identify you in accordance with the Act.
By your acceptance of this
Commitment Letter, you agree that this Commitment Letter supersedes
any and all discussions, negotiations, understandings or
agreements, written or oral, express or implied, between Lender and
you. This Commitment Letter may not be contradicted by
evidence of any actual or alleged prior, contemporaneous, or
subsequent understandings or agreements of the parties, written or
oral, express or implied, other than a writing, which expressly
amends or supersedes this Commitment Letter. All other
writings issued by Lender to you are null and void and of no
effect. There are no unwritten oral understandings or
agreements between the parties.
