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.


 


This
Commitment Letter shall be governed by, and construed in accordance with, the
internal laws of the state of California without reference to principles of
conflict of laws.  The parties hereto
submit to the exclusive jurisdiction of the Federal and California State courts
located in the City of San Francisco in connection with any dispute related to
this Commitment Letter or any of the matters contemplated hereby or thereby.


 


You acknowledge and agree that in connection with
all elements of the transaction contemplated under this Commitment Letter, (i) neither
Lender nor any of its affiliates has assumed any advisory responsibility or any
other obligation in favor of the Borrower except the obligations expressly
provided for under this Commitment Letter, and (ii) Lender and its
affiliates, on the one hand, and the Borrower, on the other hand, have an
arms-length business relationship that does not directly or indirectly give
rise to, nor do you or any of the Loan Parties rely on, any fiduciary duty on
the part of Lender or any of its affiliates.


 


Because
disputes arising in connection with complex financial transactions are most
quickly and economically resolved by an experienced and expert person and the
parties wish applicable state and federal laws to apply (rather than
arbitration rules), the parties desire that their disputes be resolved by a
judge applying such applicable laws. 
Therefore, to achieve the best combination of the benefits of the
judicial system and of arbitration (without submitting to arbitration), the
parties hereto waive all right to trial by jury in any action, suit, or
proceeding brought to enforce or defend any rights or remedies under this
Commitment Letter or any of the definitive loan documentation, whether arising
under contract or tort or otherwise.


 


This
Commitment Letter and the duties and obligations contained herein shall be
solely for the benefit of the parties hereto and their affiliates, and no third
party shall rely upon, or have any rights under, this Commitment Letter as a
third party beneficiary or otherwise.


 


This
Commitment Letter may be executed in counterparts, each of which shall be
deemed an original and all of which counterparts shall constitute one and the
same document.  As used in this
Commitment Letter, the term “including” shall not be construed as a limitation.


 

















 


If
the terms of this Commitment Letter are acceptable to you, we ask that you
return an executed copy of this Commitment Letter to Lender at the address set
forth on the first page of this Commitment Letter.  This Commitment Letter shall become effective
only if this Commitment Letter is signed by you and delivered to Lender by no
later than 5:00 p.m. (Pacific Standard
Time) on March 31, 2009. 
This Commitment Letter shall be deemed withdrawn and no further effect
if not accepted by you in such manner by such date and time.


 


We
look forward to continuing to work with you on this transaction.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  AMERICAN
  AGCREDIT, PCA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Vern Zander

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


 


	
  Agreed
  to and Accepted

  	
   

  
	
  this 25th day
  of March, 2009

  	
   

  
	
   

  	
   

  
	
  ML
  MACADAMIA ORCHARDS, L.P., a

  	
   

  
	
  Delaware
  limited Partnership

  	
   

  
	
   

  	
   

  
	
  By:

  	
  ML
  RESOURCES, INC., a Hawaii

  	
   

  
	
   

  	
  corporation,
  its managing general partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dennis J.Simonis_

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Dennis
  J. Simonis

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ML
  RESOURCES, INC., a Hawaii corporation

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Dennis J. Simonis

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Dennis
  J. Simonis

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  
					



 
















 


ML MACADAMIA ORCHARDS, L.P.


Summary
of General Terms


Amendment to the Second Amended and Restated
Credit Agreement dated July 8, 2008


 


March 25, 2009


 


SUMMARY
OF GENERAL TERMS:  The following describes the
proposed amendment to the Second Amended and Restated Credit Agreement dated July 8,
2008 (the “Existing Credit Facility”), by and between ML Macadamia Orchards,
L.P., ML Resources, Inc., (collectively, the “Borrower”) and American
AgCredit, PCA, (the “Lender”).  More
specifically, the Borrower has requested an extension of the Revolving Loan
that has a maturity date of June 30, 2009.   The Lender has proposed an extension of the
Revolving Loan subject to the terms described hereinbelow.  Unless otherwise provided for hereinbelow,
the Amendment to the Second Amended and Restated Credit Agreement (“Amendment”)
will contain substantially the same terms and conditions defined in the
Existing Credit Facility.


 


PARTIES


 


	
   

  	
  Borrower:

  	
  ML
  Macadamia Orchards, L.P., a Delaware Limited Partnership (“MLO”); and ML
  Resources, Inc., a Hawaii Corporation, the Managing General Partner
  (collectively, the “Borrower”).

  
	
   

  	
   

  	
   

  
	
   

  	
  Lender:

  	
  American
  AgCredit, PCA (“Lender”)

  
	
   

  	
   

  	
   

  
	
  AMOUNTS AND TERMS OF THE FACILITY

  
	
   

  	
   

  	
   

  
	
   

  	
  Single
  Facility:

  	
  The
  credit facility contemplated herein (the “Restated Credit Facility”) is a
  single facility consisting of two components including a revolving loan (the
  “Renewed Revolving Loan”) and the existing amortizing loan (the “Existing
  Amortizing Term Loan”).

  
	
   

  	
   

  	
   

  
	
   

  	
  Aggregate

  	
   

  
	
   

  	
  Commitment:

  	
  Renewed
  Revolving Loan

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
   

  
	
   

  	
   

  	
  Existing
  Amortizing Term Loan

  	
   

  	
  800,000

  	
  *

  	
   

  
	
   

  	
   

  	
  Aggregate
  Commitment

  	
   

  	
  $

  	
  5,800,000.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  


  

  
	
   

  	
   

  	
  *The
  Existing Amortizing Term Loan has a payment of $400,000 due on May 1,
  2009.

  
	
   

  	
   

  	
   

  


















 


	
   

  	
  Closing
  Date:

  	
  All
  references to closing in this Summary of General Terms shall mean the initial
  disbursement by Lender under the Amendment (“Closing”) and the date of such
  disbursement shall be on or before June 30, 2009 (the “Closing Date”, or
  “Renewal Date”).

  
	
   

  	
   

  	
   

  
	
  Renewed Revolving

  
	
  Loan:

  
	
   

  	
   

  	
   

  
	
   

  	
  Amount:

  	
  $5,000,000.

  
	
   

  	
   

  	
   

  
	
   

  	
  Maturity:

  	
  364
  days from the Closing Date

  
	
   

  	
   

  	
   

  
	
   

  	
  Purpose:

  	
  Proceeds of the facility
  will be used for general business purposes of MLO.

  
	
   

  	
   

  	
   

  
	
   

  	
  Borrowing

  	
   

  
	
   

  	
  Terms:

  	
  Requests for advances
  shall be subject to Borrower’s compliance with all loan terms and conditions
  and for the purposes described hereinabove.

  
	
   

  	
   

  	
   

  
	
  Existing Amortizing

  	
   

  
	
  Term Loan:

  	
  No Changes unless
  specified in the Summary of General Terms.

  
	
   

  	
   

  	
   

  
	
  FEES,
  INTEREST RATES AND PAYMENTS

  
	
   

  	
   

  	
   

  
	
   

  	
  Loan Fee:

  	
  Borrower shall pay to
  Lender, on the Closing Date, a one-time loan fee of $25,000, equal to the sum
  of .50% of the aggregate commitment under the Renewed Revolving Loan.

  
	
   

  	
   

  	
   

  
	
   

  	
  Unused

  	
   

  
	
   

  	
  Commitment Fee:

  	
  There shall be no Unused
  Commitment Fee charged on the Renewed Revolving Loan.

  
	
   

  	
   

  	
   

  
	
  Interest Rate Options:

  	
   

  
	
   

  	
   

  	
   

  
	
     Renewed Revolving

  
	
     Loan and Existing

  
	
     Amortizing Term Loan:

  
	
   

  	
   

  	
   

  
	
   

  	
  Variable
  Rate:

  	
  Absent
  a conversion (as described below), the interest rate (the “Base Rate”) shall
  be a floating rate of interest equal to the “Prime Rate” plus a margin
  of one percentage point (100 basis points). “Prime Rate” means the “Prime”
  rate as published from time to time in The Wall Street Journal,
  regardless of whether such rate is actually charged by any bank. Interest
  accrued at the Base Rate will be paid quarterly in arrears on the first
  business day of each quarter. Interest will be calculated based on a 365-day
  year and the actual number of days elapsed in any month.

  



 

















 


	
     Renewed Revolving

  	
   

  
	
     Loan:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fixed
  Rate:

  	
  From
  time to time, so long as no default has occurred and is continuing, Borrower
  may elect to convert all or portions of the Renewed Revolving Loan to a fixed
  interest rate(s), in minimum principal amounts of $50,000 for periods of one
  month, two months, three months, or six months, provided the Fixed Rate
  Period selected does not exceed the final maturity date of the Renewed
  Revolving Loan. The maximum number of open Fixed Rate tranches at any one
  time shall be five.

  
	
   

  	
   

  	
   

  
	
   

  	
  Fixed
  Rate

  	
   

  
	
   

  	
  Index:

  	
  The
  Fixed Rate Periods of one, two, three, and six months shall be indexed to the
  London Interbank Offered Rate (LIBOR) of a like maturity, plus a margin of
  three and one quarters of one percentage point (325 basis points). Interest
  accrued at the Fixed Rate shall be payable on a quarterly basis, or at such
  earlier time as a Fixed Rate tranche shall mature. Interest accrued under the
  LIBOR option shall be calculated based on a 360-day year and the actual days
  elapsed in any month.

  
	
   

  	
   

  	
   

  
	
   

  	
  Interest
  Rate

  	
   

  
	
   

  	
  Floor:

  	
  Regardless
  of the Base Rate or Fixed Rate discussed above, the interest rate of the
  revolver shall in no case be lower than 4.00%.

  
	
   

  	
   

  	
   

  
	
  COLLATERAL

  
	
   

  	
   

  	
   

  
	
   

  	
  Security:

  	
  The
  Restated Credit Facility shall continue to be secured by senior perfected
  security interests in all personal property assets of Borrower including farm
  products, crops growing or to be grown, inventory,  accounts, equipment, fixtures, contract rights, documents
  of title and other intangible property. In addition, The Restated Credit
  Facility shall continue to be secured by a first priority perfected mortgage
  and assignments of rents on certain properties owned by the Borrower.
  Borrower shall pay the cost of any title searches and endorsements associated
  with this extension.

  
	
   

  	
   

  	
   

  
	
   

  	
  Debt
  Secured:

  	
  All
  of the above referenced personal property and real property shall secure both
  the Renewed Revolving Loan and the Existing Amortizing Term Loan.

  



 

















 


                                                                                                                                                


	
  CONDITIONS
  AND COVENANTS

  
	
   

  
	
  Covenants shall include the following and such
  other covenants as shall be reasonably required by Lender.

  
	
   

  
	
  Pre-Closing Conditions:

  
	
   

  
	
   

  	
  Generally:

  	
  Prior
  to the Closing Date, Lender shall have received the following:
  (i) current interim and fiscal year-end financial information;
  (ii) all updated pro-forma financial information; (iii) all public
  filings and disclosures; (iv) evidence of receipt of all necessary
  government approvals; (v) required certifications including, but not
  limited to, compliance with all laws, payment of all taxes and satisfaction
  of all insurance requirements; and (vi) such legal opinions as may
  reasonably be required by Lender.

  
	
   

  	
   

  	
   

  
	
   

  	
  Nut
  Sale

  	
   

  
	
   

  	
  Contract:

  	
  Delivery
  to Lender of an executed nut sale contract for the 2009-2010 year
  (July 1, 2009 to June 30, 2010) in form and content satisfactory to
  Lender.

  
	
   

  	
   

  	
   

  
	
   

  	
  No
  Adverse

  	
   

  
	
   

  	
  Effect:

  	
  No
  change has occurred that has a Material Adverse Effect in the business,
  condition (financial or otherwise), operations, performance, or properties of
  Borrower shall have occurred or exist.

  
	
   

  	
   

  	
   

  
	
   

  	
  Loan

  	
   

  
	
   

  	
  Documents

  	
   

  
	
   

  	
  (Generally):

  	
  The loan documents will
  contain representations and warranties, indemnities, financial reporting, and
  affirmative and negative covenants by Borrower, such as the case may be, and
  provide for conditions, events of default, and remedies, all as customarily
  required for transactions of this type or as otherwise deemed reasonably
  necessary or appropriate by Lender.

  
	
   

  	
   

  	
   

  
	
   

  	
  Expense

  	
   

  
	
   

  	
  Reimbursement:

  	
  Borrower
  shall reimburse the Lender for reasonable and customary expenses incurred in
  connection with the negotiation and funding of the Restated Credit Facility,
  including attorney fees and costs, UCC searches, filing and recording fees,
  title insurance costs, appraisal fee (if required), and other similar
  out-of-pocket expenses.

  



 

















 


	
  CONTINUING
  COVENANTS AND CONDITIONS

  
	
   

  
	
     Financial

  	
   

  
	
     Reporting:

  	
  As
  described in the Existing Credit Facility:

  
	
   

  	
   

  	
   

  
	
     Negative
  Covenants:

  
	
   

  	
   

  	
   

  
	
   

  	
  Restricted

  	
   

  
	
   

  	
  Payments:

  	
  Borrower may not make or
  commit to make Restricted Payments, unless otherwise approved by Lender.

  
	
   

  	
   

  	
   

  
	
   

  	
  Other
  Negative

  	
   

  
	
   

  	
  Covenants:

  	
  Other
  Negative Covenants as described in the Existing Credit Facility.

  
	
   

  	
   

  	
   

  
	
     Financial
  Covenants:

  
	
   

  
	
   

  	
  Generally:

  	
  Compliance
  with financial covenants shall be measured as of the end of each fiscal
  quarter based on a consolidation of MLO and its Subsidiaries (if applicable),
  said which shall be prepared in accordance with GAAP.

  
	
   

  	
   

  	
   

  
	
   

  	
  Minimum

  	
   

  
	
   

  	
  Consolidated

  	
   

  
	
   

  	
  EBITDA:

  	
  Commencing
  on September 30, 2009, MLO shall have Consolidated EBITDA of not less
  than $1,500,000 for the four quarters ended September 30, 2009 and
  thereafter.

  
	
   

  	
   

  	
   

  
	
   

  	
  Minimum

  	
   

  
	
   

  	
  Tangible

  	
   

  
	
   

  	
  Net Worth:

  	
  MLO shall not permit its Tangible Net Worth, as of the last day of
  any Fiscal Year beginning with the fiscal year ending December 31, 2007,
  to be less than the applicable “Minimum Tangible Net Worth Amount.” The
  Minimum Tangible Net Worth Amount shall initially be Forty-One Million
  Dollars ($41,000,000.00) and shall be increased dollar for dollar by the
  amount of positive Consolidated Net Income achieved by MLO, beginning
  January 1, 2008 and thereafter.”

  
	
   

  	
   

  	
   

  
	
     Events
  of

  	
   

  
	
     Default:

  	
  Typical
  for credit facilities and transactions of this nature and others reasonably
  specified by the Lender, including without limitation (subject to customary
  grace periods when appropriate), nonpayment of principal, interest, fees or
  other amounts, violations of covenants, material inaccuracy of
  representations and warranties, cross-defaults, bankruptcy, material
  judgments, ERISA, actual or asserted invalidity of any loan documents,
  security interests or subordination provisions.

  



 

















 


	
  OTHER
  TERMS

  
	
   

  
	
   

  	
  Farm
  Credit

  	
   

  
	
   

  	
  Stock:

  	
  Borrower
  will be required to maintain its $1,000 of stock in AAC.

  
	
   

  	
   

  	
   

  
	
   

  	
  Representations,

  	
   

  
	
   

  	
  Warranties and

  	
   

  
	
   

  	
  Indemnity:

  	
  Typical for facilities and
  transactions of this nature and others to be reasonably specified by the Lender.