FOURTH LOAN MODIFICATION AGREEMENT
THIS FOURTH LOAN MODIFICATION AGREEMENT ("this
Agreement") is dated as of December 31, 2003, by and among MAUI
LAND & PINEAPPLE COMPANY, INC., a Hawaii corporation, hereinafter
called the "Borrower", and BANK OF HAWAII, a Hawaii banking
corporation ("BOH"), FIRST HAWAIIAN BANK, a Hawaii banking
corporation ("FHB"), CENTRAL PACIFIC BANK, a Hawaii banking
corporation ("CPB"), and AMERICAN AGCREDIT, PCA, a corporation or
association organized and existing under the laws of the United
States of America ("PCA") (BOH, FHB, CPB and PCA are each
sometimes called a "Lender" and are collectively called the
"Lenders"), and BANK OF HAWAII, as Agent for the Lenders to the
extent and in the manner provided in the Loan Documents described
below (in such capacity, the "Agent"), and KAPALUA LAND COMPANY,
LTD., a Hawaii corporation (the "Accommodation Party").
Recitals:
A. The Lenders (i) have made available to the
Borrower Revolving Loans in the aggregate principal amount of up
to $25,000,000 at any one time outstanding, and (ii) shall make
available to the Borrower Term Loans in an amount up to the
aggregate principal amount of the Revolving Loans outstanding
upon expiration of the Revolving Loan Period, but not to exceed
$15,000,000, all as more particularly described in that certain
Amended and Third Restated Revolving Credit and Term Loan
Agreement dated December 31, 2001, made by and among the
Borrower, Lenders and Agent, as amended by a Loan Modification
Agreement effective as of December 31, 2002, a Second Loan
Modification Agreement dated as of March 21, 2003, and a Third
Loan Modification Agreement dated as of August 11, 2003 (as
amended, the "Loan Agreement").
B. Capitalized terms used, but not defined in this
Agreement, shall have the meanings given them in the Loan
Agreement.
C. The performance of the Borrower under the Loan
Documents is secured by the following (as amended and confirmed,
collectively, the "Mortgages") made in favor of the Lenders:
(1) Mortgage and Security Agreement dated
March 1, 1993, made by the Borrower, as Mortgagor, recorded in
the Bureau of Conveyances of the State of Hawaii (the "Bureau")
as Document No. 93-036896;
(2) Mortgage and Security Agreement dated
March 1, 1993, made by the Borrower, as Mortgagor, recorded in
the Bureau as Document No. 93-036898; and
(3) Additional Security Mortgage and Security
Agreement dated March 1, 1993, made by the Accommodation Party,
recorded in the Bureau as Document No. 93-036900.
D. The Borrower and the Lenders have agreed to
further modify the Loan Documents under the terms and conditions
of this Agreement.
Agreements:
NOW, THEREFORE, in consideration of the premises, the
mutual covenants set forth herein and other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
1. Amendments to the Loan Agreement: Effective as
of December 31, 2003, the Loan Agreement is amended as follows:
(a) The Aggregate Loan Commitment, as defined in
Section 1.1(a), is reduced to $20,000,000.00.
(b) Section 1.6(b)(1)(iii) is amended to read in
its entirety as follows:
(iii) On December 31, 2004, the Borrower
agrees to pay the amount, if any, by which
the aggregate outstanding principal balance
of the Revolving Loans exceeds
$15,000,000.00, and as of such date, the
Aggregate Loan Commitment shall be reduced
to $15,000,000.00.
(c) Section 9.17 is amended to read in its
entirety as follows:
9.17 Expiry Date means December 31, 2005.
(d) Section 9.36 is amended to read in its
entirety as follows:
9.36 Maturity Date means December 31, 2008.
(e) Section 5.10(c) is amended to read in its
entirety as follows:
(c) A Net Worth of not less than
$64,000,000, plus 50% of cumulative Net
Profits (but not the net losses) after
December 31, 2003.
(f) Clause (iv) Section 5.3(a) is amended to
read in its entirety as follows:
(iv) summary schedules of income and cash
flow for the Borrower's resort division,
pineapple division and any other, existing
or to be newly created, divisions,
(g) Clause (iv) Section 5.3(b) is amended to
read in its entirety as follows:
(iv) summary schedules of income and cash
flow for the Borrower's resort division,
pineapple division and any other, existing
or to be newly created, divisions; and
(h) Clause (i) Section 5.3(c) is amended to read
in its entirety as follows:
(i) copies of the Borrower's three-to-five
year summary forecast of income and cash flow
for the Borrower's resort division, pineapple
division and any other, existing or to be
newly created, divisions, and
(i) In addition to the financial reports and
information required under Section 5.3 of the Loan Agreement, as
amended above, the Borrower shall submit to the Agent, for
distribution to the Lenders, copies of any strategic plan or
update to a strategic plan within 10 days after such plan or
update is approved by the Borrower's board of directors.
2. Consent; Waiver: The Lenders hereby consent to
the Borrower's sale of certain assets of its Costa Rican
pineapple-growing subsidiary to Xxxx Food Co., Inc. and waive
the Borrower's failure to request the Lenders' prior written
consent to the sale of such assets as may be required under
Section 6.3 of the Loan Agreement. The Bank's waiver in this
Agreement shall not constitute, nor be deemed to constitute,
a waiver of any other terms, covenants or conditions under the
Loan Agreement or the other Loan Documents.
3. Amendment Fee and Costs: In consideration of,
and as a condition to, the amendment herein contained, the
Borrower shall pay the Agent, on demand, for distribution to
the Lenders on a pro rata basis, a $20,000 amendment fee.
The Borrower shall also promptly reimburse the Agent for all
costs and expenses, including reasonable fees of attorneys and
real estate appraisers, incurred by the Agent in connection
with this transaction.
4. Modification: This Agreement is a modification
only and not a novation. In all other respects, the terms
and conditions of the Loan Documents, as hereby modified, are
hereby ratified and confirmed and shall remain in full force
and effect.
5. Reaffirmation and Enlargement: The Borrower
confirms and reaffirms all of its representations, warranties
and covenants in the Loan Documents. The execution of this
Agreement by the Borrower constitutes the certification of
the persons signing this Agreement on behalf of the Borrower
that, to the best of their actual knowledge, the representations
and warranties made in Article IV of the Loan Agreement are true
and correct as of the date of this Agreement. All references in
the Loan Documents to the Loan Agreement are hereby enlarged and
expanded to mean and include the Loan Agreement as hereby
modified.
6. Mortgagors: The Borrower and the Accommodation
Party confirm the grant, pledge and mortgage of the properties
encumbered by the Mortgages, as and for continuing security for
the obligations of the Borrower under the Loan Documents. The
Borrower and the Accommodation Party warrant that the properties
encumbered by the Mortgages are subject to no liens or
encumbrances other than those set forth in the Mortgages.
7. No Offsets: The Borrower and the Accommodation
Party each agrees that to its actual knowledge it has no claims,
defenses, or offsets against the Lenders or the Agent with
respect to the Credit Facility or to the enforcement of the
Loan Documents arising prior to the date of this Agreement and
that all such claims, defenses and offsets are hereby released.
8. Successors and Assigns: This Agreement is
binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and assigns.
9. Counterparts: This Agreement may be executed
in any number of counterparts, each of which shall be deemed
an original and all of which taken together shall constitute
one and the same document, binding all of the parties hereto,
notwithstanding all of the parties are not signatory to the
original or the same counterparts. Duplicate unexecuted pages
of the counterparts may be discarded and the remaining pages
assembled as one document.
[The following page is the signature page.]
To signify their agreement, the parties have executed
this Fourth Loan Modification Agreement as of the date above
written.
MAUI LAND & PINEAPPLE COMPANY, BANK OF HAWAII, individually
INC. and as Agent
By /s/ XXXX X. XXXXX By /s/ XXXX X. XXXXXXX
Name: Xxxx X. Xxxxx Name: Xxxx X. XxXxxxx
Title: Executive Vice Title: Vice President
President/Finance
By /s/ XXXX XXXXX FIRST HAWAIIAN BANK
Name: Xxxx Xxxxx
Title: Treasurer
Borrower By /s/ NEILL CHAR
Name: Neill Char
Title: Vice President
KAPALUA LAND COMPANY, LTD.
CENTRAL PACIFIC BANK
By /s/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Executive Vice By /s/ XXXXXX X. XXXXXXXX
President/Finance Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By /s/ XXXX XXXXX
Name: Xxxx Xxxxx AMERICAN AGCREDIT, PCA
Title: Treasurer
Accommodation Party By /s/ XXXX VAN SCHUYVER
Name: Xxxx Van Schuyver
Title: Vice President
Lenders
