EX-10.2
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v311570_ex10-2.htm
EXHIBIT 10.2
MASTER LOAN AGREEMENT
This Master Loan Agreement is established
as of May 1, 2012 between Farm Credit West, PCA a corporation organized and existing under the laws of the United
States of America, with its office at 0000 Xxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxx, XX 00000-0000 (“Lender”)
and each of the undersigned person(s) and/or entities (collectively, “Borrower”). This Agreement shall remain
in effect until all Indebtedness is paid in full and the Agreement is terminated in writing by Lender.
1. MASTER LOAN AGREEMENT. On this
date, and from time to time hereafter, Lender may make Loans to Borrower. Borrower and Lender (collectively, the “Parties”)
enter into this Master Loan Agreement which, together with the applicable Supplement(s) and other Loan Documents, shall govern
each separate Loan and all Indebtedness between the Parties. Unless stated to the contrary elsewhere, the provisions of all Loan
Documents are incorporated by reference herein as if stated in full. For value received, Borrower promises to pay to order of Lender
all Indebtedness governed by this Agreement. Nothing herein shall be construed to obligate Lender to restructure or renew any unpaid
balance, any part thereof, or to make any additional or future loans or financial accommodations to Borrower.
| 1.1 | SUPPLEMENTS. Loans made on and after the date of this Agreement will be evidenced by a “Promissory
Note and Supplement to Master Loan Agreement” (“Supplement”). Each Supplement shall set forth the terms
and conditions applicable to each Loan. All Supplements and attachments thereto, including all amendments, renewals, and restatements
thereof, are incorporated by reference and made a part of this Agreement unless the contrary is stated in any Loan Document. In
any conflict of terms between this Master Loan Agreement and any Supplement, the Supplement shall control, unless the contrary
is specifically stated in the Supplement. Any amendment to this Master Loan Agreement shall control all Supplements, unless the
contrary is stated in the amendment. |
2.DEFINED TERMS. “Indebtedness”
means all Loans, advances, obligations, covenants and duties of any kind owing by Borrower to Lender under this Agreement whether
now existing or hereafter arising, absolute or contingent, due or to become due, and whether or not evidenced by any writing, this
Agreement or any other Loan Document, and including all interest, charges, fees, attorney’s fees, expenses, and any other
sum(s) chargeable to Borrower under this or any other related agreement. “Loan” or “Account”
means each loan, credit facility or other obligation evidenced by any Supplement. “Agreement” means this Master
Loan Agreement, including all Supplements, attachments and other agreements incorporated by reference and all amendments, modifications,
and restatements thereof. “Loan Document” means this Agreement, and any Supplement, guaranty, Security Instrument,
and any and all other documents or agreements executed in connection with this Agreement, any Loan or the Indebtedness, and all
amendments, modifications, and restatements thereof.
2.1
OTHER LOANS WITH LENDER. Unless specifically stated to the contrary in writing by Lender, in this or any other document, this
Master Loan Agreement shall not supersede or govern other notes, loan agreements, loans, and obligations by Borrower to Lender
not contained in Supplements hereto. Such other loans shall continue to be governed by the applicable loan documents. This Agreement
shall not be construed to waive any right(s) in or to discharge any note, guaranty, security instrument or indebtedness between
the Parties not subject hereto unless the same has been specifically waived or discharged in writing by Lender.
0.XXXXXXXX. All Indebtedness
is secured by Borrower-owned stock or participation certificates required by Lender’s bylaws,
any funds or accounts of Borrower held by or maintained with Lender, Lender's allocated surplus, and any other items which secure
this Loan under applicable laws, regulations or Loan Documents (collectively, "Standard Security"). Loans may
also be secured by other personal property and real property. Collateral may secure more than one Loan when so indicated. All liens
and interests in Collateral will be evidenced by the appropriate Security Instrument granting such interest. “Collateral”
means the Standard Security and all real and personal property, whether now owned or hereafter acquired, in which Lender now holds
or later acquires a security interest or lien to secure this Agreement, any Loan or the Indebtedness. “Security Instrument”
means any deed of trust, mortgage, security agreement, assignment or other document granting Lender a lien on, or security interest
in, any real or personal property as security for this Agreement, any Loan or the Indebtedness.
4. DEFAULT.
A default on any Supplement or the Indebtedness is a default on this Master Loan Agreement. A default on this Master Loan Agreement
or any Supplement shall, at Lender’s option, also be a default on all Supplements and all the Indebtedness. Borrower is in
default on this Master Loan Agreement, including any Supplement, under any one or more of the following circumstances (individually
and collectively called an “Event of Default”): (a) Borrower or any guarantor fails to pay when due any Indebtedness
or amount(s) owed under this Agreement or any other Loan Document; (b) Borrower or any guarantor is declared to be in default on
this Agreement, any other Loan Document, or on any other loan or obligation of Borrower to Lender or in which Lender has an interest;
(c) Borrower breaches any term, condition or representation in this Agreement or in any other Loan Document for this or any other
loan by this or any other lender, including but not limited to any other Farm Credit lender; (d) Borrower's representation(s) to
this or any other lender in connection with any loan are materially false or misleading; (e) Lender determines that Borrower is
unable to repay as agreed the sums owed Lender under this Agreement, or Lender in good faith otherwise deems itself insecure; (f)
Lender's reasonable determination that a material adverse change has occurred in the financial condition of Borrower or in the
value of the Collateral; (g) Borrower's death, dissolution, incapacity or termination of existence; (h) Borrower's insolvency,
business failure, application for or consent to appointment of a receiver/custodian or trustee for itself or any of its assets,
or an assignment to an agent authorized to liquidate any substantial amount of assets, or an assignment for the benefit of creditors
by, or commencement of any proceeding under any bankruptcy or insolvency law by or against Borrower, or any guarantor, endorser,
or surety for Borrower; (i) Any judgment, writ, levy, lien, attachment, notice of tax lien, tax lien, or similar process is entered
or filed against Borrower, any guarantor or any of Borrower's or any of guarantor's properties and is not vacated, bonded, or stayed
to the satisfaction of Lender; (j) An Event of Default occurs under any guaranty given to Lender in connection with this Agreement,
any Supplement or the Indebtedness; or any guarantor shall purport to terminate, repudiate or contest any such guaranty; or any
guarantor who is a natural person shall die; or any guarantor that is not a natural person shall be dissolved or terminated; or
(k) Borrower sells, leases, conveys, alienates, or transfers, or enters into any agreement for the sale, lease, conveyance, alienation,
transfer or nonuse of any water or water rights, or “Water Asset”, as such may be defined in any deed of trust, mortgage,
security agreement or other agreement relating to the pledge of water or water rights.
5. REMEDIES. If an Event of Default
occurs, Lender shall have all rights, powers and remedies available under this Agreement, any other Loan Document, or provided
by law or equity under applicable laws, including but not limited to: the right to declare, at Lender’s option, all or any
portion of the Indebtedness immediately due and payable without prior recourse to the Collateral; Lender’s right to immediately
terminate Borrower’s right to draw additional funds, and/or suspend or reduce Borrower’s credit or credit limit, all
with or without notice to Borrower; and the right to foreclose on, or enforce any security interest in, any Collateral (all above
collectively, “Remedies”). All Lender’s Remedies: (a) may be exercised at any time by Lender, or from
time to time, after an Event of Default; (b) are cumulative and not exclusive; and (c) shall be in addition to any other rights
or remedies provided by law or equity. Lender may enforce any security interest or lien in such manner and order, as to all or
any part of the Collateral as Lender, in its sole judgment, deems appropriate. Borrower, to the extent possible, waives all rights,
obligations, or defenses now or hereafter established by law relating to the Remedies.
| Master Loan Agreement - Standard Form | Page 2 of 8 |
| 6.5 | LEGAL ENTITY WARRANTY AND CERTIFICATION. If Borrower is a legal entity, Borrower (and any
person signing this Agreement in a representative capacity on behalf of Borrower) represents, warrants and certifies that Borrower
is duly constituted under applicable laws and in good standing; that Borrower has the power, authority, and appropriate authorization
to enter into this Agreement, all Security Instruments and any other Loan Document in connection with any Loan; that when executed
this Agreement, all Security Instruments and any other Loan Document in connection with this Agreement shall be valid and legally
binding on Borrower. If the Borrower is a trust, each trustee executing this Agreement on behalf of the trust also represents,
warrants and certifies that this Agreement, all Security Instruments and other Loan Documents are being executed by all the currently
acting trustees of the trust and that the trust has not been revoked, modified, or amended in any manner which would cause any
of the foregoing to be incorrect. |
| 6.6 | HAZARDOUS SUBSTANCE INDEMNITY. Borrower indemnifies and agrees to hold Lender harmless from
any losses or damages suffered by Lender that arise from the release, threatened release, discharge, manufacture, use, storage,
transportation or presence of any hazardous substance in connection with the business of Borrower or on any real property owned
or occupied by Borrower, whether or not pledged as security for this Agreement. The indemnity covers the officers, directors, agents,
and attorneys of Lender and extends to attorneys' fees and other costs and expenses incurred by Lender in connection with the foregoing.
The term "hazardous substance" shall mean any material or substance which is now or hereafter considered "hazardous"
or "toxic" or subject to any other deleterious classification under any federal, state, or local law. This indemnity
shall be construed as being in addition to any similar provision in any Security Instrument. NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, THIS INDEMNITY SHALL SURVIVE REPAYMENT OF THE INDEBTEDNESS. |
7. SPECIAL LOAN CONDITIONS, COVENANTS
AND REQUIREMENTS. Borrower covenants and agrees with Lender as follows:
| 7.1.1 | No other financial performance covenants are imposed at this time unless provided elsewhere herein or in other Loan Documents. |
| Master Loan Agreement - Standard Form | Page 3 of 8 |
Financial Information shall be provided
as described below:
| 7.3.1 | Financial information shall be provided at such times during the term of this Agreement as Lender may request. |
| 7.4.1 | No other environmental covenants requirements are imposed at this time unless provided elsewhere herein or in other Loan Documents. |
| 7.5.1 | Sell Borrower's business, abandon or cease business operations, or merge or consolidate with any third party or entity. |
| 7.5.2 | Become a guarantor or surety on, or otherwise become liable for, the debts or obligations of any third party person, or any
entity or firm. |
| 7.5.3 | Mortgage, pledge, lease for a period exceeding one year or otherwise make or allow the filing of a lien on any loan collateral. |
| 7.5.4 | Dispose of all or a substantial portion of Borrower's business assets by sale, transfer, lease, gift, abandonment or otherwise,
except for sales of inventory in the ordinary course of business. |
| 7.5.5 | Obtain credit or loans from other lenders other than trade credit customary in Borrower's business. |
| Master Loan Agreement - Standard Form | Page 4 of 8 |
| 11. | MISCELLANEOUS COSTS. Lender may, but is not required to pay: (a) the cost of any services
requested by Borrower and rendered by or through Lender such as credit life insurance or crop or property insurance; (b) any amounts
required to satisfy taxes, assessments or liens on the Collateral, to maintain insurance, or to perform any other obligation under
this Agreement or other Loan Documents; (c) all costs and expenses, including attorneys’ fees, incurred in connection with
the preparation, execution, or administration of any Loan; (d) any xxxx of sale, sight or expense drafts drawn by Borrower and
presented to Lender for payment of purchases or expenses authorized by Lender; and (e) charges by suppliers of goods or services
included in any budget for which Borrower borrows funds hereunder. Lender may, at its option, add such amounts to any portion of
the Loan, and charge interest on such amounts at the interest rate applicable to the Loan. |
| 13. | FEES AND CHARGES OF ATTORNEYS AND OTHERS. In the event that Lender utilizes the services
of attorneys, accountants, appraisers, consultants, or other professional or outside assistance, including the services of in-house
counsel or any other attorney or professional who is an employee of Lender, the reasonable amount of fees, costs and expenses (“Expenses”)
incurred by Lender to utilize such persons in connection with any of the following shall be payable by Borrower on demand and Lender
may, at its option, add the amount of such Expenses to any portion of the Indebtedness, plus an appropriate amount of stock or
participation certificates required as required by federal law or regulation or Lender’s bylaws, and charge interest on such
amount at the interest rate applicable to such portion of the Indebtedness: |
| (a) | The preparation, modification or enforcement of this Agreement and any other agreement or Loan
Document incident to the Indebtedness or to the Collateral; |
(b) Advising
Lender concerning its legal rights and obligations with regard to this Agreement and any other agreement or Loan Document incident
to the Indebtedness, or to the Collateral, including advising Lender with regard to the extent of Lender’s rights, if any,
under the provisions of the Farm Credit Act of 1971, as amended, Farm Credit Administration regulations, any policy or program
of Lender, or any other state or federal law;
(c) Any
litigation, dispute, proceeding, or action (whether terminated or dismissed prior to judgment, reduced to judgment or otherwise
finally resolved), and whether instituted by Lender, Borrower or any other person, relating to this Agreement, the Indebtedness
or any Loan, any other Loan Document, the Collateral or Borrower’s affairs;
(d) The
furtherance of Lender’s interest in any bankruptcy, insolvency, or reorganization case or proceeding instituted by or against
Borrower, including any steps to (i) modify or terminate the automatic stay, (ii) prohibit or condition Borrower’s use of
cash Collateral, (iii) object to any disclosure statement or plan, (iv) propose or confirm a plan, and (v) prosecute or defend
adversary proceedings or contested matters, and take or defend examinations or discovery, whether or not related to any adversary
proceeding or contested matter, whether terminated or dismissed prior to judgment, reduced to judgment or otherwise finally resolved;
(e) The
inspection, verification, protection, collection, processing, sale, liquidation, or disposition of the Collateral; and
(f) Any
of the type of Expenses referred to in (a) through (e) above incurred by Lender in connection with any guaranty of the Indebtedness.
The Expenses described herein
and elsewhere in this Agreement shall be in addition to those set forth in any Security Instrument, other Loan Document or any
other written agreement between Lender and Borrower.
| Master Loan Agreement - Standard Form | Page 5 of 8 |
| 19. | SPECIFIC WAIVERS OF EACH BORROWER. The Loan Indebtedness of each Borrower is independent
of the Loan Indebtedness of all other Borrowers. Each Borrower expressly waives any right to require Lender to proceed against
any other Borrower, to proceed against or exhaust any Collateral, to pursue any remedy Lender may have at any time, and the benefit
of any statute of limitations affecting its liability under this Agreement or any other Loan Document. Each Borrower waives any
and all defenses by reason of (a) any disability or other defense of any other Borrower with respect to the Indebtedness owed to
Lender, (b) the termination for any reason whatsoever of the liability of any other Borrower, (c) any act or omission of Lender
that directly or indirectly results in or aids the discharge or release of any other Borrower, any guarantor, or any security provided
by any Borrower or guarantor, (d) the failure by Lender to perfect any security interest or lien on any Collateral, and (e) an
election of remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security
for this Agreement, has destroyed Borrower's rights of subrogation, contribution, reimbursement, indemnity, set off, or other recourse
against another Borrower by the operation of Section 580d of the California Code of Civil Procedure or otherwise or under similar
laws in other jurisdictions. |
| Master Loan Agreement - Standard Form | Page 6 of 8 |
19.1 BORROWER
FURTHER AGREES. Each Borrower agrees that Lender may at any time, without notice, release all or any part of the Collateral
securing the Indebtedness (including all or any part of the premises covered by any mortgage or deed of trust), grant extensions,
change terms of payment, deferments, renewals or reamortizations of any part of the Indebtedness, and release from personal liability
any one or more of the parties who are or may become liable for the Indebtedness; all without affecting the personal liability
of any other party. Borrower also severally waives any and all other defense or right of offset against the Holder hereof. No Borrower
shall have any right of subrogation, contribution, reimbursement, indemnity, set off, or other recourse and waives the benefit
of, or any right to participate in, any Collateral until such time as all of the obligations owed by Borrower to Lender under this
Agreement shall have been paid in full. Each Borrower, to the extent it may lawfully do so, waives any defense under California
anti-deficiency statutes, or comparable provisions of the laws of any other state to the recovery of a deficiency after a foreclosure
sale of such property.
19.2 BORROWER
FURTHER REPRESENTS AND WARRANTS. Each Borrower represents and warrants to Lender that it has established adequate means of
obtaining from each other Borrower, on a continuing basis, information pertaining to the businesses, operations and conditions
(financial or otherwise) of each other Borrower and its properties, and each Borrower now is and will be familiar with the businesses,
operations and conditions (financial or otherwise) of each other Borrower and its properties. Each Borrower waives and relinquishes
any duty on the part of Lender (if such duty exists) to disclose to any Borrower any matter, fact or thing related to the businesses,
operations, or conditions (financial or otherwise) of any other Borrower or its properties. Without limiting the generality of
the foregoing, each Borrower waives any defenses or rights arising under or of the kind described in California Civil Code sections
2795, 2808, 2809, 2810, 2815, 2819 through 2825 (inclusive), 2832, 2839, and 2845 through 2850 (inclusive) and similar laws in
other jurisdictions.
00.XX ORAL AGREEMENTS. The representatives
of Lender are not authorized to make any oral agreements or assurances. Do not sign this Agreement if you believe that there are
any agreements or understandings between you and Lender that are not set forth in writing in this Agreement or the other Loan Documents.
21.SUCCESSORS AND ASSIGNS. This
Agreement, any Supplement and all other Loan Documents are binding on Borrower’s and Lender’s successors and assignees.
Borrower shall not assign this Agreement any Loan or Loan Document without Lender’s prior written consent. Lender may sell
participations in or assign this Agreement, and may exchange financial information about Borrower with actual or potential participants
or assignees. If a participation is sold or the Agreement is assigned, the purchaser will have the right of set-off against Borrower.
22.SEVERABILITY; COUNTERPARTS.
If one or more of the provisions of this Agreement, any Security Instrument or any other Loan Documents should be deemed or held
to be invalid, illegal, unenforceable or against public policy in any respect, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired. To the extent any waiver of a right by Borrower hereunder may
be contrary to applicable law, such waiver shall be deemed made to the extent allowed by such law. To the extent Nevada law applies,
Borrower does not waive any right relating to the sale of real property provided under Nevada law. This Agreement may be signed
in one or more counterparts which shall constitute one and the same Agreement.
23.CAPTIONS. Captions used in
this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope
or intent of any term or provision. As used herein, the word “including” means “including without limitation”
and/or “including but not limited to”.
24.APPLICABLE LAW. This Agreement
and any other Loan Document shall be governed by federal law, to the extent applicable, and shall otherwise be governed by the
laws of the state specified in the address of Lender, on page 1. Any Loan Document specifying governing laws of a different state
shall be governed thereby.
25.ENTIRE AGREEMENT; AMENDMENTS
MUST BE IN WRITING. This Agreement and all other Loan Documents constitute the entire agreement between the Parties on the
subject matter hereof; superseding all prior negotiations, communications, discussions, oral agreements, and promises concerning
the Indebtedness or any Loan. This Agreement does not supersede any Loan Document(s) pertaining to other outstanding loan(s) of
Borrower with Lender except as specified herein. This Agreement may be amended or modified only by a written instrument executed
by Lender and Borrower.
| Master Loan Agreement - Standard Form | Page 7 of 8 |
| a) | Monthly, in house financial statements for all related entities within 30 days of each month end; |
| b) | Quarterly, financial statements within 45 days after quarter-end as required by and prepared for the Security Exchange
Commission; and |
| c) | Annual, financial statements within 120 days of fiscal year end as required by and prepared for the Security Exchange
Commission. |
| Signature(s): | | |
| | | |
| Limoneira Company, a Delaware Corporation | | |
| | | |
| By: | /s/ Xxxxxx X. Xxxxxxx | | By: | /s/ Xxxxxx X. Xxxxxx |
| | Xxxxxx X. Xxxxxxx, President | | | Xxxxxx X. Xxxxxx, Secretary |
| Master Loan Agreement - Standard Form | Page 8 of 8 |
