Exhibit 10.59


 


TERMINATION AGREEMENT


 


THIS TERMINATION AGREEMENT (this “Agreement”) is dated
as of the 13th day of December, 2007 (the “Effective Date”), by
and between Mac Farms of Hawaii, LLC, a Delaware limited liability company (“Mac Farms”) and Kapua Orchard Estates, LLC,
a Delaware limited liability company (“Kapua”) (both
collectively sometimes called “Seller”), and ML Macadamia Orchards, L.P. (“MLP” or “Buyer”), a Delaware
limited partnership.


 


NOW, THEREFORE, in consideration of the
foregoing and of the representations, warranties
and mutual covenants contained herein, and for other good and valuable
consideration the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:


 


1.                Defined Terms. Capitalized
terms not otherwise defined herein shall have the meaning ascribed to them in
that certain Acquisition Agreement, dated as of May 23, 2007, as amended on July 19, 2007, and November 23,
2007, by and among Mac Farms, Kapua and Buyer (the “Acquisition Agreement”). All defined terms contained
in the Acquisition Agreement
necessary to properly understand and construe the provisions below shall
survive the termination thereof for interpretational purposes only.


 


2.                Termination. Pursuant
to Section 9.1(a) of the Acquisition Agreement, the parties hereby mutually terminate the Acquisition Agreement effective as
of the Effective Date in all respects. For the
avoidance of doubt, no provision in the Acquisition Agreement shall survive the
termination thereof, including, but not limited to, Section 9.2 thereof.
Further, the parties hereto agree that none
of them shall make any claim against the other party or assist and/or
encourage any other Person to make a claim in connection with the termination
of the Acquisition Agreement or due to the fact that the transactions
contemplated by the Acquisition Agreement were not consummated.


 


3.                Reimbursement and Delivery Covenants.


 


a.               Buyer
agrees to reimburse Seller, within ten (10) days after receipt of a reimbursement
request from Seller, accompanied by the relevant invoices of the Seller’s
Accountants, for all payments of all fees and expenses paid to the Seller’s
Accountants by Seller in connection with
their: (i) assistance in preparing the SEC Financial Statements and the audit by Buyer’s Accountants; (ii) review
of the Buyer’s Proxy Statement; and (iii) preparation of certain
financial statements, management discussion and analysis and other related financial information for the periods ended
September 30, 2006, and September 30, 2007, intended for inclusion in the Buyer’s Proxy Statement, which
amount is U.S. Dollars Fifty Three Thousand Four Hundred Ninety-Nine &
66/100ths ($53,499.66).


 


b.              In connection with the title search performed on behalf of Buyer,
Seller agrees to reimburse Buyer in the amount of Three Thousand Five Hundred
U.S. Dollars ($3,500.00) within ten (10) days after receipt of
reimbursement request from Buyer, accompanied by a copy of such title search.


 


4.                Mutual Release of Claims. Other than the obligations explicitly set forth herein, Buyer and Seller hereby release and discharge each other and the Seller’s
members, subsidiaries, affiliates, officers, directors, employees, and
agents and their respective successors and assigns (collectively, the “Seller’s
Affiliated Parties”) from any and all demands, suits, actions,
causes of action or claims of any
kind, complaints, obligations, losses, damages, or fees (including attorneys’ fees) whether at law or in equity,
direct or indirect, known or unknown (collectively,


 

















 


“Claims”),
which either party ever had, now has, or may have against the
other party, the Seller’s Affiliated Parties,
individually or collectively, arising out of, relating to, or in connection
with any matter, thing or event, including, but not
limited to, the Acquisition Agreement, the transactions contemplated
thereby or the termination thereof.


 


5.                Indemnification
Against Claims by Buyer’s Securityholders. Buyer
agrees to indemnify, hold harmless, and defend Seller and each of Seller’s
Affiliated Parties, from and against any and
all Claims, which may be threatened or brought by the Buyer’s unit holders and/or other securityholders and their respective
successors and assigns arising out of, relating to, or in connection with the termination of the Acquisition Agreement,
the Acquisition Agreement or the transactions contemplated thereby.


 


6.                Indemnification Against Claims by Seller’s Members. Seller agrees to indemnify, hold harmless, and defend Buyer and each
of Buyer’s officers, directors, employees, and
agents, from and against any and all Claims, which may be threatened or brought
by Seller’s members and their successors and assigns arising out of,
relating to, or in connection with, the termination
of the Acquisition Agreement, the Acquisition Agreement, or the transactions contemplated
thereby.


 


7.                Confidentiality. Buyer
agrees that it will not, without the prior written consent of Seller, use or disclose to any Person any non-public information
relating to or concerning the Acquisition Agreement,
Seller, Seller’s Affiliates, or their respective businesses, customers, financial condition, performance or operations
obtained by Buyer arising out of, relating to, or in connection with the
Acquisition Agreement and the transactions contemplated thereby.


 


8.                Destruction of Seller’s Materials. Buyer hereby agrees that it
will destroy and certify to Seller, that all
non-public documents, work papers, and any and all other materials (in all
cases, in paper, electronic or another format) obtained from Seller (or its
advisors, representatives, and agents) by Buyer and its advisors,
representatives and agents arising out of, relating to, or in connection with
the Acquisition Agreement and the transactions contemplated thereby have been
destroyed. Buyer hereby agrees to furnish to Seller the foregoing certification
within ten (10) days after the Effective Date of this Agreement.


 


9.                Non-Solicitation. For a
period of one (1) year following the Effective Date, Buyer agrees
that it will not, directly or indirectly, solicit, cause to be solicited or
assist others in soliciting for employment,
or offer or cause others to offer employment to, any person who is an employee
of Seller.


 


10.              Non-Disparagement. The parties agree that
neither will make any disparaging statements
or comments to any Person by any medium, whether oral or written, about the
other party, any of its affiliates or
any of its respective officers, directors, employees, shareholders, unit holders, agents, representatives or
independent contractors. Furthermore, the parties agree that neither
will communicate to any Person by any medium, whether oral or written, any information harmful or adverse to the other party,
any of its affiliates or any of its respective officers, directors, employees, shareholders, unit holders, agents,
representatives or independent contractors.


 


11.              Right of Setoff. Seller
may set off any amount to which it may be entitled under Section 3 of this Agreement against amounts otherwise payable to
Buyer in connection with this Agreement
or any other agreement between Buyer and Mac Farms. Neither the exercise of,
nor the failure to exercise, such right of setoff or
to give a notice thereof will constitute an election of remedies or
limit Seller in any manner in the enforcement of any other remedies that may be
available to it in connection with amount owed to it by Buyer.


 

















 


12.              Entire
Agreement. This
Agreement constitutes the entire agreement, contract and understanding of the
parties with respect of the subject matter hereof and any and all prior
negotiations, agreements, contracts, covenants, promises, representations,
understandings or warranties, whether oral or written, express or implied, are
hereby terminated and canceled in their entirety and are of no further force or
effect.


 


13.              Captions. The captions appearing at the
commencement of the provisions of this Agreement are descriptive only and for
convenience in reference. If there is any conflict between any such caption and the provision at the head of
which it appears, then the provision, and not the caption, controls and governs
in the construction of this Agreement.


 


14.              Interpretation. Each party acknowledges that it has been
represented and advised by legal counsel in the negotiation and legal effects
of this Agreement and acknowledges that it has caused this Agreement to be
reviewed and approved by legal counsel of its own choice.


 


15.              Unknown
or Mistake in Facts. It is acknowledged and understood by the parties that the facts with
respect to this Agreement as known or given at this time may hereafter turn out
to be other than or different from such facts. The parties therefore expressly
assume the risk of the facts being different and agree that this Agreement
shall be in all respects effective and not subject to modification, termination
or rescission, notwithstanding any such difference in facts.


 


16.              Time
is of The Essence. Time is of the essence to this Agreement with respect to the
performance by each party of its duties, obligations and responsibilities under
this Agreement, and also each and every condition, covenant, provision and term
of this Agreement.


 


17.              Governing
Law. All
questions concerning the construction, validity and interpretation of this
Amendment will be governed by and construed in accordance with the Laws of the
State of Hawaii without giving effect to any choice of law or conflict of law
provision or rule that would cause the application of the Laws of any
jurisdiction other than the State of Hawaii.


 


18.              Counterparts/Facsimiles. This Agreement may be executed in
counterparts, each of which is deemed an original, and such counterparts
constitute one and the same instrument, which may be sufficiently evidenced by
a counterpart. A facsimile, telecopy, PDF, or other reproduction of this
Agreement may be executed by one or more parties, and an executed copy of this
Agreement may be delivered by one or more parties by facsimile, PDF e-mail, or
similar instantaneous electronic transmission device under which the signature of
or on behalf of such party can be seen, and such execution and delivery is to
be considered valid, binding and effective for all purposes. At the request of
any party, the parties agree to execute an original of this Agreement as well
as any facsimile, telecopy or other reproduction hereof.


 


19.              Authority. Buyer has full power and authority
(including full limited partnership power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder. Seller has full power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder.


 


20.              Partial
Invalidity.
If any provision of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remaining provisions nevertheless
continue in full force without being impaired or invalidated in any way.


 

















 


IN WITNESS WHEREOF, the parties hereto have caused this Termination Agreement to be duly
executed as of the Effective Date.


 


 


	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  ML MACADAMIA ORCHARDS, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  DENNIS
  J. SIMONIS, President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  MAC FARMS OF HAWAII, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert
  D. Sparks

  
	
   

  	
  ROBERT D. SPARKS, Chairman of the Board

  
	
   

  	
   

  
	
   

  	
  KAPUA ORCHARD ESTATES, LLC 

  
	
   

  	
  By: MFH Investors, LLC, its
  manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  JEFF
  GILBRECH, Vice-President