EIGHTH AMENDMENT TO
TERM LOAN AGREEMENT
This Eighth Amendment to Term Loan Agreement ("Amendment")
is entered into this 1st day of September, 2004, 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, December
31, 2001, March 18, 2002, June 29, 2003 and June 1, 2004.
B.Borrower and Lender now wish to amend the Agreement to
revise the provisions relating to the term of the Fixed Rate
Tranches and the transfer of certain assets.
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 definition of "Reset Date" is hereby amended
by deleting the words "for a period not to exceed 90
days" at the end of item (iv).
(b) Subparagraph (d) of Section 2 of the Agreement is
amended to read as follows:
"(d) a Fixed Rate Tranche for up to Ten
Million Dollars ($10,000,000) utilizing fixed rate
Interest Periods of thirty days (the "Thirty-Day
Fixed Rate Tranche"), amounts subject to the
Thirty-Day Fixed Rate Tranche shall automatically
be renewed every thirty (30) days, provided that
no such Interest Period shall extend beyond the
Maturity Date, and further provided, that the
Borrower may give notice to the Lender of its
election to reduce or increase the amount of the
outstanding principal balance bearing interest at
the LIBOR Rate by delivering to Lender a notice in
the form of Exhibit C attached hereto not less
than two (2) days prior to the commencement of any
Interest Period, and further provided that, the
Six Month Fixed Rate Tranche and the One Year
Fixed Rate Tranche shall be reduced by an amount
equal to the principal balance of the Thirty-Day
Fixed Rate Tranche."
3. Section 4(a)(1) of the Agreement is amended to read as
follows:
"(1) Borrower shall pay the principal amount of
the Six Month Fixed Rate Tranche, the One Year
Fixed Rate Tranche, and the Thirty-Day Fixed Rate
Tranche in consecutive installments of One Hundred
Twenty-Five Thousand Dollars ($125,000) each,
commencing on September 1, 2004, and continuing on
the first day of each December, March, June, and
September thereafter through March 1, 2009, and a
final payment of Seven Million Six Hundred Twenty-
Five Thousand Dollars ($7,625,000) on the Term
Loan Maturity Date, all such payments to be
applied pro rata to the various tranches based on
the amount of principal outstanding thereunder at
the time of payment;"
4. Section 4(a)(2) of the Agreement is deleted and Section
4(a)(3) is renumbered as Section 4(a)(2).
5. Exhibit C attached hereto is added to the Agreement as
Exhibit C.
6. Transfer of Assets. Lender hereby agrees to waive the
provisions of Section 12 of the Agreement with regard to the
transfer of the land beneath the Kapalua Bay Hotel, the
adjacent parking lot and the Kapalua Bay shops to a joint
venture with Marriott International and Exclusive Resorts
for the purpose of redeveloping the property.
7. 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.
8. Borrower's Representations and Warranties. Borrower
represents and warrants that as of the date hereof and after
giving effect hereto:
(a) The execution and delivery of this Amendment by
the Borrower is within the corporate powers of the Borrower
and does not violate any provisions or terms of any order or
any court or governmental agency and will not conflict with
or constitute a default under the Borrower's Articles or
Bylaws or any agreement or instrument to which the Borrower
is a party.
(b) The execution and delivery of this Amendment has
been duly authorized by proper corporate action on the part
of the Borrower and that this Amendment and the Agreement
constitute the legal, valid and binding obligations of the
Borrower.
(c) No default or Event of Default exists under the
Agreement.
(d) It has disclosed the terms and conditions of this
Amendment to its auditors for their use in preparing any
quarterly or annual reports on the condition of the
Borrower.
9. 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.
10. 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. XXXXXXX
Title: Acting Chief Financial Officer
By: /S/ XXXXX X. XXXXXX
Title: Controller & Secretary
Lender:
AMERICAN AGCREDIT, FLCA
By: /S/ XXXX VAN SCHUYVER
Title: VICE PRESIDENT
