Delaware
|
001-34755
|
77-0260692
|
||
(State
or other jurisdiction
|
(Commission
File Number)
|
(I.R.S.
Employer Identification
|
||
of
incorporation)
|
No.)
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Section
1
|
Registrant’s
Business and
Operations
|
Item
1.01
|
Entry
into a Material Definitive
Agreement.
|
Section
2
|
Financial
Information
|
Item
2.03
|
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
|
Section
9
|
Financial
Statements and Exhibits
|
Item
9.01
|
Financial
Statements and Exhibits.
|
(d)
|
Exhibits.
|
||
10.1
|
Form
of Master Loan Agreement established dated May 27, 2010 and established as
of May 7, 2010, between Farm Credit West, PCA and Windfall Investors,
LLC.
|
||
10.2
|
Form
of Promissory Note and Supplement to Master Loan Agreement, dated May 27,
2010 and established as of May 7, 2010, between Farm Credit West, PCA and
Windfall Investors, LLC.
|
||
99.1
|
Form
of Request and Agreement for Extension dated and effective May 1, 2010 by
and between Windfall Investors, LLC and Farm Credit West,
PCA
|
Date:
June 1, 2010
|
LIMONEIRA
COMPANY
|
||
By:
|
/s/
Don Delmatoff
|
||
Don Delmatoff
|
|||
Vice
President of Finance & Administration, Chief Financial Officer, and
Secretary
|
Filing
Ref. :
|
Windfall
Investors, LLC, a California Limited Liability Company
|
Customer
Number:
|
1700212664
|
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.
|
1.2
|
FUTURE
CREDIT ACCOMMODATIONS. Borrower may apply for future loans, renewals of
unpaid balances, refinancings, reschedulings, or other credit facilities
or accommodations. Each loan application Borrower submits will be
evaluated for eligibility and creditworthiness at the time of its
submission. Nothing in this Agreement or any other agreement between
Borrower and Lender 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.
|
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.
|
Filing
Ref. :
|
Windfall
Investors, LLC, a California Limited Liability Company
|
Customer
Number:
|
1700212664
|
5.1
|
ACCELERATION.
If an Event of Default occurs, Lender may, at its option, declare all or
any portion of the Indebtedness to be immediately due and payable without
presentment, demand, notice of non-payment,
|
Filing
Ref. :
|
Windfall
Investors, LLC, a California Limited Liability Company
|
Customer
Number:
|
1700212664
|
5.2
|
WAIVER.
Lender’s failure to require strict compliance with any provision of this
Agreement or any other agreement between Lender and Borrower shall not
affect Lender’s right to require strict compliance with such provision.
Lender’s suspension or waiver of an Event of Default shall not affect any
other Event of Default or any of Lender’s remedies with respect thereto.
Lender’s waiver or suspension of any rights under this or any other
agreement, or Lender’s grant of any consent to Borrower, shall be
effective only if such waiver, suspension, or consent is in writing and
only to the extent specifically set forth in such
writing.
|
6.
|
BORROWER'S REPRESENTATIONS AND
WARRANTIES. In addition to representations and warranties
described in other Loan Documents, Borrower makes the following
representations and warranties to Lender which remain in effect until all
Indebtedness subject to this Agreement is repaid in
full:
|
6.1
|
FINANCIAL
STATEMENTS. All financial statements and other information both previously
and hereafter furnished by Borrower to Lender are accurate in every
material respect; there has not been any material adverse change in the
financial condition of Borrower since the date of the last financial
statement provided; Borrower has no material liabilities, fixed or
contingent, which are not fully shown or provided for in the said
financial statements as of the date
thereof.
|
6.2
|
PROFIT
AND LOSS INFORMATION. All submitted profit and loss information is
accurate and complete.
|
6.3
|
SOLVENCY.
Borrower has sufficient capital to carry on the business and is solvent
and able to pay debts as they mature, and Borrower is generally paying
such debts. Borrower owns property the fair market value of which exceeds
the dollar amount required to pay Borrower's
debts.
|
6.4
|
COMPLIANCE
WITH LOAN TERMS. Borrower is performing on, or is in compliance with, all
terms of all Borrower's other loans and obligations to all other
creditors, if any, and all loans and obligations to Lender, whether or not
subject to this Agreement.
|
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 attorney's fees and other costs and expenses incurred by
Lender in connection with the foregoing. The term "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
|
Filing
Ref. :
|
Windfall
Investors, LLC, a California Limited Liability Company
|
Customer
Number:
|
1700212664
|
7.
|
SPECIAL LOAN CONDITIONS, COVENANTS AND
REQUIREMENTS. Borrower covenants and agrees with Lender as
follows:
|
7.1
|
FINANCIAL
PERFORMANCE.
|
7.1.1
|
No
other financial performance covenants are imposed at this time unless
provided elsewhere herein or in other Loan
Documents.
|
7.2
|
INSURANCE.
In addition to the insurance requirements described in other Loan
Documents, Borrower shall provide, maintain and deliver to Lender fire and
extended coverage, flood and any and all other types of insurance in terms
and amounts as may be required by law or Lender from time to time, with
loss payable endorsements solely in favor of Lender or, for real property
secured loans, naming Lender as
mortgagee.
|
7.3
|
FINANCIAL
INFORMATION. At Lender's request, Borrower shall provide to Lender
financial information in a form acceptable to Lender, including, when so
required, a current balance sheet and income statement. In the case of
multiple Borrowers, financial information must be provided for each
Borrower as requested by
Lender.
|
7.3.1
|
Financial
information shall be provided at such times during the term of this
Agreement as Lender may
request.
|
7.4
|
ENVIRONMENTAL.
In addition to the environmental requirements described in other Loan
Documents, Borrower shall comply with the following additional
requirements:
|
7.4.1
|
No
other environmental requirements are imposed at this time unless
providedelsewhere
herein or in other Loan Documents.
|
7.5
|
NEGATIVE
COVENANTS. In addition to the negative covenants set forth in other Loan
Documents, Borrower will not take any of the following actions without the
prior written approval of Lender during the term of this Agreement and
until all Loans are paid in
full:
|
7.5.1
|
Sell
Borrower's business, abandon or cease business operations, or merge
orconsolidate
with any third party or entity.
|
7.5.2
|
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.
|
7.5.3
|
Obtain
credit or loans from other lenders other than trade credit customary in
Borrower's business.
|
7.5.4
|
Become
a guarantor or surety on, or otherwise become liable for, the debts
orobligations
of any third party person, or any entity or
firm.
|
7.5.5
|
Mortgage,
pledge, lease for a period exceeding one year or otherwise make or allow
thefiling
of a lien on any loan collateral.
|
Filing
Ref. :
|
Windfall
Investors, LLC, a California Limited Liability Company
|
Customer
Number:
|
1700212664
|
Filing
Ref. :
|
Windfall
Investors, LLC, a California Limited Liability Company
|
Customer
Number:
|
1700212664
|
Filing
Ref. :
|
Windfall
Investors, LLC, a California Limited Liability Company
|
Customer
Number:
|
1700212664
|
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.
|
Filing
Ref. :
|
Windfall
Investors, LLC, a California Limited Liability Company
|
Customer
Number:
|
1700212664
|
By:
|
|
5/27/2010
|
Harold
S. Edwards, President
|
||
By:
|
|
5/27/2010
|
Don
Delmatoff, Secretary
|
Filing
Ref. : Windfall Investors, LLC, a California Limited Liability Company
|
Loan
/ Supplement
|
8309256/101
|
|
Number:
Customer
Number:
|
1700212664
|
1.1
|
NON-REVOLVING CREDIT FACILITY. On the
terms and conditions in the MLA and this Supplement, Lender agrees to make
Loan advances to Borrower during the period set forth below in the
aggregate principal amount not to exceed at any one time outstanding the
Commitment or the borrowing base or other guidelines where applicable,
whichever is less. Amounts borrowed and later repaid may not be
reborrowed.
|
1.2
|
TERM. The term of the Commitment shall be
from the date of this Supplement up to but not including the Maturity
Date, or such later date as Lender may in its sole discretion authorize in
writing. Borrower may draw funds only during the term of the
Commitment.
|
1.3
|
ONGOING REQUIREMENTS AND REPRESENTATIONS.
At the time of any draw request or draw by Borrower or advance of Loan
funds by Lender, Borrower shall not be in default. Any request for or
acceptance of a draw by Borrower constitutes an ongoing representation and
warranty by Borrower that Borrower continues to comply with the conditions
and requirements set forth in this Agreement, the Security Instruments or
any Loan Document in connection herewith, and that title to the Property
defined in the Security Instruments has not been transferred without
Lender’s written consent. If a default occurs, one of Lender’s remedies
includes Lender’s right to immediately terminate Borrower’s right to make
draws hereunder, with or without notice to
Borrower.
|
1.4
|
PROCEDURE FOR DRAWING FUNDS. All draws
requested hereunder shall comply with applicable procedures established by
Lender from time to time. Lender’s records shall be conclusive evidence of
draw requests. Each advance of Loan funds hereunder may be made upon a
verbal, written, or telecopied request from Borrower to Lender. Lender may
rely on any verbal request for a draw as fully as if such request were in
writing. Upon fulfillment of the applicable conditions for making a draw,
Lender shall disburse the amount of the requested draw to Borrower in such
manner as Lender and Borrower may from time to time
agree.
|
Filing
Ref. : Windfall Investors, LLC, a California Limited Liability Company
|
Loan
/ Supplement
|
8309256/101
|
|
Number:
Customer
Number:
|
1700212664
|
3.1
|
INITIAL INTEREST RATE. The interest rate
applicable to the Note is a Variable Interest Rate (“Variable Interest Rate”) and shall change
in accordance with Sections 3.2 through 3.3 below. Interest shall accrue
at the variable interest rate as established by Lender for the interest
rate group to which this Note is
assigned.
|
3.2
|
CHANGE IN INTEREST RATE AND INTEREST RATE
GROUP. The Variable Interest Rate applicable to this Note may be
adjusted automatically as of the first day of any month to the rate then
made applicable to the Note’s assigned interest rate group under the
provisions of Lender's Variable Interest Rate Plan in effect at that
time.
|
3.3
|
NOTICE. If Lender changes Borrower's
Variable Interest Rate, Lender will give Borrower notice of such rate
change to the extent required by and in accordance with the then
applicable law.
|
6.
|
SECURITY. The security given by Borrower
to Lender includes, without limitation the
following:
|
6.1
|
This
Note is secured by a real estate Deed of Trust dated 05/07/2010 to be recorded in the official
records of Ventura County, State of
California.
|
Filing
Ref. : Windfall Investors, LLC, a California Limited Liability Company
|
Loan
/ Supplement
|
8309256/101
|
|
Number:
Customer
Number:
|
1700212664
|
6.2
|
By
signing below, the undersigned individually and collectively certify that
there have been NO CHANGES in the ownership, condition, or location of any
collateral previously pledged to Lender, which is also pledged as
Collateral for this Note.
|
Filing
Ref. : Windfall Investors, LLC, a California Limited Liability Company
|
Loan
/ Supplement
|
8309256/101
|
|
Number:
Customer
Number:
|
1700212664
|
11.1
|
DISBURSEMENT
INSTRUCTIONS.
|
By:
|
|
5/27/2010
|
Harold
S. Edwards, President
|
||
By:
|
|
5/27/2010
|
Don
Delmatoff, Secretary
|
Filing
Ref. : Windfall Investors, LLC, a California Limited Liability Company
|
Loan
/ Supplement
|
8309256/101
|
|
Number:
Customer
Number:
|
1700212664
|
Request and Agreement for Extension - Multiple Accounts 11193 12/99 |
Page 1
|
REQUEST
AND AGREEMENT FOR EXTENSION
|
Borrower:
Windfall Investors, LLC
Lender:
Farm Credit West, PCA
|
Office:
Loan
Number:
|
VENTURA
3843165
|
Loan
Type & Program: Short Term & Loan Account ST
|
Amount:
|
$10,500,000.00
|
Application
Date: 04-30-2010
REQUEST FOR EXTENSION of Short Term
Loan
Approval
is requested to change payment schedule to:
|
Acct
No.
|
Type/Class
Acct
|
Acct
Amount
|
Schedule
Type
|
Payment
Amount
|
Frequency
Type
|
First
Payment
|
No.
of
Pmts
|
101
|
Capital
|
$5,570,027.83
|
Interest
|
Interest
Only
|
Monthly
|
05-01-2010
|
2
|
Principal
& Interest
|
$5,570,027.83
|
Once
|
06-01-2010
|
1
|
|||
201
|
Special
intermediate
|
$4,929,972.17
|
Interest
Only
|
Interest
Only
|
Monthly
|
05-01-2010
|
2
|
Principal
& Interest
|
$4,929,972.17
|
Once
|
06-01-2010
|
1
|
1.
|
The
terms and conditions in the original Master Loan Agreement dated
September
23, 2005 (“MLA”) and the Promissory
Note and Supplement to Master Loan Agreement (“Note”) dated May 28, 2008
and September
23, 2005, are
hereby amended to extend the maturity date of the Note to June 1,
2010.
|
2.
|
It
is expressly understood and agreed that, except as specifically amended
herein, all other terms and conditions of the MLA, Note and other loan
documents evidencing and/or relating to the Loan shall remain in full
force and effect.
|
By:
|
|
Harold
S. Edwards, President
|
|
By:
|
|
Don
Delmatoff,
Secretary
|
By:
|
|
Patrick
J. Kelley, Vice
President
|