Second Amendment to Note Purchase Agreement
This Second Amendment to Note Purchase Agreement, dated as
of November 13, 1995 (this "Amendment"), is made between Xxxx
Xxxxxxx Mutual Life Insurance Company ("Purchaser") and Maui Land
& Pineapple Company, Inc., a Hawaii corporation ("Company").
WHEREAS, Company and Purchaser are parties to that certain
Note Purchase Agreement dated as of September 9, 1993, as amended
by that certain First Amendment to Note Purchase Agreement dated
as of March 30, 1994 (the "Note Purchase Agreement"); and
WHEREAS, Company has requested that certain provisions of
the Note Purchase Agreement be amended as set forth below; and
WHEREAS, subject to the fulfillment of certain conditions,
Purchaser is willing so to amend the Note Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual conditions
and agreements set forth in this Amendment, Company and Purchaser
hereby agree as follows:
Section 1. Definitions
Capitalized terms used but not defined in this Amendment
shall have the meanings set forth in the Note Purchase Agreement.
Section 2. Amendment
Subject to the terms and conditions set forth below, the
Note Purchase Agreement is hereby amended, effective September
29, 1995, by deleting the definition of "Net Worth" in Section
11.1 and inserting the following definition in its place:
"Net Worth" shall mean, with respect to any Person, on the
date such determination is to be made, the sum of Assets less
Liabilities, provided, however, that in determining the Net Worth
of Company and its Subsidiaries, the amount of non-cash losses
incurred by Company and its Subsidiaries (without duplication)
from their partnership interest in Kaptel Associates between
January 1, 1995 and December 31, 1995 shall be added to the
amount of Net Worth as determined above.
Section 3. Conditions
The amendment contained in Section 2 shall not be deemed to
be of any force or effect unless and until the following
conditions have been satisfied:
3.1 Representations and Warranties. All of the
representations and warranties contained in Section 5 hereof are
complete and accurate in all material respects as of the date
hereof.
3.2 Guarantor Consents. Each of the Persons which executed
the Guaranty shall have executed a consent, in form and substance
satisfactory to Purchaser, in which each such Person consents to
this Amendment and confirms the effectiveness of the Guaranty.
Section 4. Termination
This Amendment shall terminate, and no agreements provided
for herein shall have any force or effect, if all of the
conditions set forth in Section 3 hereof are not satisfied on or
before November 17, 1995.
Section 5. Representations and Warranties
Company hereby represents and warrants to Purchaser that as
of the date hereof (and all such representations and warranties
shall survive the execution and delivery of this Amendment and
any investigation thereof by Purchaser):
5.1 Representations and Warranties; No Defaults. All of
the representations and warranties of Company set forth in the
Note Purchase Agreement are true and correct as of the date
hereof and, after giving effect to this Amendment, no Event of
Default or Unmatured Event of Default under the Note Purchase
Agreement has occurred and is continuing.
5.2 Authorization. The execution, delivery and performance
of this Amendment by Company is within its corporate powers and
has been duly authorized by all necessary corporate action.
5.3 Valid and Binding Obligation. This Amendment has been
duly executed by Company and constitutes the legal, valid and
binding obligation of Company, enforceable against Company in
accordance with its terms.
5.4 No Conflicts. The execution, delivery and performance
by Company of this Amendment will not (i) violate any provision
of any statute, regulation, ordinance, order, injunction, decree
or other requirement of any governmental legislative,
administrative or judicial body or agency, (ii)violate any
provision of Company's articles of incorporation or bylaws,
(iii)cause or result in a default under or breach of any
agreement, bond, note or indenture to which Company is a party or
by which it or any of its properties or assets is or may be
affected, or (iv)result in the creation or imposition of any Lien
of any nature whatsoever upon any of the properties or assets
owned or used by Company in the conduct of its business.
5.5 No Material Adverse Change. Since the date of the
latest financial statements of Company delivered to Purchaser
under the Note Purchase Agreement, no event has occurred
involving a Material Adverse Change.
5.6 No Fee, etc. No fee or other consideration of any type
is being paid by Company or any of its Subsidiaries to any other
Person in connection' with the amendment or waiver of its
agreements with such Person to reflect the change in definition
of Net Worth reflected herein or substantially reflected herein.
Section 6. Miscellaneous
6.1 Effect on Note Purchase Agreement. Except as expressly
amended hereby, all of the terms and conditions of the Note
Purchase Agreement are hereby ratified and confirmed in their
entirety and shall continue in full force and effect. Except as
specifically set forth herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of Purchaser under the Note Purchase
Agreement or any of the Notes. On and after the date hereof. each
reference in the Note Purchase Agreement to this "Agreement,"
"hereunder," "hereof," "herein" or words of like import. and each
reference in the Guaranty or any of the Notes to the Note
Purchase Agreement, shall mean and be a reference to the Note
Purchase Agreement as amended hereby.
6.2 Headings. All titles and section headings used in this
Amendment are used for purposes of convenience of reference only,
and shall not be deemed to constitute a part hereof.
6.3 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Hawaii
applicable to contracts made and to be performed in Hawaii.
6.4 Counterparts. This Amendment may be executed in multiple
identical counterparts, and by the parties hereto in separate
counterparts. each of which shall be deemed an original, and all
of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Second Amendment to Note Purchase Agreement as of the date first
set forth above.
MAUI LAND & PINEAPPLE COMPANY ,INC.
By: /S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Executive Vice President/Finance
XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By: /S/ XXXX XXXXXXX
Name: Xxxx Xxxxxxx
Title: Senior Investment Officer
