FIFTH AMENDMENT TO
TERM LOAN AGREEMENT
This Amendment to Term Loan Agreement ("Amendment") is
entered into this 18th day of March, 2003, and is effective
as of December 31, 2002, by and between American AgCredit,
FLCA successor in interest to Pacific Coast Farm Credit
Services, ACA ("Lender") and Maui Land & Pineapple Company,
Inc., a Hawaii corporation (the "Borrower").
RECITALS
A. Borrower and Lender executed a Term Loan Agreement
dated June 1, 1999 ( the "Agreement") which was amended on
February 16, 2000, May 16, 2000, March 23, 2001 and
December 31, 2001.
B. Borrower and Lender now wish to amend the Agreement to
revise the provisions relating to the Debt Coverage Ratio,
Tangible Net Worth, Capital Expenditures and Base Rate
determination.
ACCORDINGLY THE PARTIES AGREE AS FOLLOWS:
1. Definitions; References; Interpretation.
(a) Unless otherwise specifically defined herein, each
term used herein (including the Recitals hereof) which is
defined in the Agreement shall have the meaning assigned to
such term in the Agreement.
(b) Each reference to "this Amendment", "hereof",
"hereunder", "herein" and "hereby" and each other similar
reference contained in the Agreement and each reference to
"the Agreement" or "the Term Loan Agreement" and each other
similar reference in the other Loan Documents, shall from
and after the date of this Amendment refer to the Agreement
as amended hereby.
(c) The rules of interpretation set forth in Section
1(b) of the Agreement shall be applicable to this Amendment.
2. Amendment to Term Loan Agreement. Subject to the terms
and conditions hereof, the Agreement is amended as follows:
(a) The grid setting forth the Applicable Spread in
Section 4(c)(2) of the Agreement shall be amended and
restated as follows:
"Consolidated Funded Debt/ Applicable Spread
Consolidated EBITDA
Tier Ratio 6 Month 1 Year 3 Year
1 > 2.75:1 3.00% 3.00% 3.05%
2 <=2.75:1>=2.25:1 2.85% 2.85% 2.90%
3 < 2.25:1 2.70% 2.70% 2.75%
(b) Section 12(e) shall be and is hereby amended by
decreasing the amount of Capital Expenditures allowed in
2003 to $10,700,000.00 and decreasing Capital Expenditures
in all future years to an amount not to exceed
$12,000,000.00 in any such year.
(c) Section 12(i)(1) shall be amended and restated to
read as follows:
"(1) Minimum Tangible Net Worth. Borrower shall not
permit its Consolidated Tangible Net Worth, as of the last
day of each Fiscal Quarter, commencing with the Fiscal
Quarter ending March 31, 2002, to be less than the sum of
(i) Fifty Six Million Dollars ($56,000,000.00), plus (ii)
fifty percent (50%) of the aggregate amount of Borrower's
Consolidated Net Income, to the extent positive, for Fiscal
Year 2003 and each Fiscal Year thereafter (on a cumulative
basis). In the event of the Borrower's sale of its interest
in the KCA Partnership, or the KCA Partnership's sale of the
Queen Kaahumanu Center, the Borrower's Minimum Tangible Net
Worth shall be adjusted upward by the amount of the net
after tax gain such that the sale will have no impact on the
difference between the then current Consolidated Tangible
Net Worth requirement and the increase in actual
Consolidated Tangible Net Worth resulting from such sale."
(d) Section 12(i)(3) shall be amended and restated to
read as follows:
"(3) Debt Coverage Ratio. Borrower shall not permit
its Consolidated Debt Coverage Ratio to be less than .69 to
1.00 for the Fiscal Year ending December 31, 2002, and 1.10
to 1.00 for the Fiscal Year ending December 31, 2003.
Commencing with the Fiscal Year ending December 31, 2004 and
continuing for each Fiscal Year thereafter through the Term
Loan Maturity Date, Borrower shall not permit the
Consolidated Debt Coverage Ratio to be less than 1.25 to
1.00.
3. Conditions of Effectiveness. The effectiveness of
this Amendment shall be subject to the satisfaction of each
of the following conditions precedent:
(a) Lender shall have received from Borrower a duly
executed original of this Amendment.
(b) Borrower shall have paid to Lender an amendment
fee in the sum of $22,500.00.
4. Continuing Validity. Except as expressly modified
or changed by this Amendment, the terms of the original
Agreement and all other related loan documents remain
unchanged and in full force and effect. Consent by the
Lender to the changes described herein does not waive
Lender's right to strict performance of the terms and
conditions contained in the Agreement as amended. Nothing
in this Amendment will constitute a satisfaction of the
Indebtedness. It is the Lender's intention to retain as
liable parties all makers, guarantors, endorsers of the
original Indebtedness, unless such party is expressly
released by Lender in writing.
5. Miscellaneous.
(a) The Borrower acknowledges and agrees that the
execution and delivery by the Lender of this Amendment shall
not be deemed to create a course of dealing or an obligation
to execute similar amendments or waivers under the same or
similar circumstances in the future.
(b) This Amendment shall be binding upon and inure to
the benefit of the Borrower and the Lender and their
respective successors and assigns.
(c) This Amendment shall be governed by and construed
in accordance with the laws of the State of California,
provided that the Lender shall retain all rights arising
under federal law.
(d) This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument. Each of the parties hereto understands and
agrees that this document may be delivered by any party
thereto either in the form of an executed original or an
executed original sent by facsimile transmission to be
followed promptly by mailing of a hard copy original, and
that receipt by the Lender of a facsimile transmitted
document purportedly bearing the signature of the Borrower
shall bind the Borrower with the same force and effect as
the delivery of a hard copy original. Any failure of the
Lender to receive the hard copy executed original of such
document shall not diminish the binding effect of receipt of
the facsimile transmitted executed original of such document
of the party whose hard copy page was not received by the
Lender.
(e) This Amendment contains the entire agreement of
the parties hereto with reference to the matters discussed
herein.
(f) If any term or provision of this Amendment shall
be deemed prohibited or invalid under any applicable law,
such provision shall be invalidated without affecting the
remaining provisions of this Amendment or the Loan
Documents.
IN WITNESS WHEREOF the parties have signed this Amendment as
of the date first above written.
Borrower:
MAUI LAND & PINEAPPLE COMPANY, INC.,
a Hawaii corporation
By: /S/ XXXX X. XXXXX
Title: Executive Vice President/Finance
By: /S/ XXXX X. XXXXXXX
Title: President
Lender:
AMERICAN AGCREDIT, FLCA
By: /S/ XXXX VAN SCHUYVER
Title: Vice President
