SEVENTH AMENDMENT TO
TERM LOAN AGREEMENT
This Seventh Amendment to Term Loan Agreement ("Amendment")
is entered into this 1st day of June, 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, and June 29, 2003.
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 Applicable Spread.
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 "Applicable Spread" is hereby
amended by deleting the word "and" in the
third line immediately before the words "(iii)
with respect to", replacing the colon in line six
with a comma and adding the following: "and (iv)
with respect to the Thirty-Day Fixed Rate Tranche,
three percent (3.00%);" immediately after the
comma and prior to the words "provided, that".
(b) The definition of "Farm Credit One-Year Discount
Note Rate" is hereby amended to read as follows:
"Farm Credit One-Year Discount Note Rate" shall
mean, at any time, the all-in cost paid by U.S.
AgBank on one-year Farm Credit Discount Notes made
available to U.S. AgBank by the Federal Farm
Credit Banks Funding Corporation."
(c) The definition of "Farm Credit Six-Month Discount
Note Rate" is hereby amended to read as follows:
"Farm Credit Six-Month Discount Note Rate" shall
mean, at any time, the all-in cost paid by U.S.
AgBank on six-month Farm Credit Discount Notes
made available to U.S. AgBank by the Federal Farm
Credit Banks Funding Corporation."
(d) The definition of "Farm Credit Medium Term Note
Rate" is hereby amended to read as follows:
"Farm Credit Medium Term Note Rate" shall mean, at
any time, the all-in cost paid by U.S. AgBank on
three year Farm Credit Medium Term Notes, made
available to U.S. AgBank by the Federal Farm
Credit Banks Funding Corporation."
(e) The definition of "Index Rate" is hereby amended
by deleting the word "and" in the fourth line, deleting
the period at the end of line seven and inserting the
following immediately after the words "then in effect"
in the seventh line: ",and (iv) with respect to the
Thirty-Day Fixed Rate Tranche, the LIBOR Rate then in
effect."
(f) The definition of "LIBOR Rate" is hereby added to
the Agreement to read as follows:
"LIBOR Rate" means, for any Interest Determination
Date, the rate offered from time to time for U.S.
Dollar deposits for the Interest Period selected,
as quoted by Telerate News Services as of 11;00
A.M. London setting time (or at Lender's option, a
comparable reference on the Reuters Screen LIBOR
Page or such other quotation service as may be
chosen by Lender) on the first Eurodollar business
day of the Interest Period, provided, that if two
or more of such offered rates appear on Telerate
(or on the Reuters Screen LIBOR Page or
alternative service, as the case may be), the
"LIBOR Rate" shall be the highest of the two
quoted."
(g) The definition of "Reset Date" is hereby amended
by deleting the word "and" in the fourth line, deleting
the period at the end of line eight, replacing said
period with a comma, and adding the following after the
comma: "and (iv) with respect to the Thirty-Day Fixed
Rate Tranche, the first day of each month for a period
not to exceed 90 days.
(h) The definition of "Thirty-Day Fixed Rate Tranche"
is hereby added to the Agreement to read as follows:
"Thirty-Day Fixed Rate Tranche" shall have the
meaning set forth in Section 2."
(i) A new Subparagraph (d) is hereby added to Section
2 of the Agreement 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"), provided, that the Borrower
may not elect more than three consecutive Thirty-
Day Fixed Rate Tranches, 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 Thirty-Day Fixed Rate
Tranche."
(j) The grid setting forth the Applicable Spread in
Section 4(c)(2) of the Agreement is hereby amended and
restated as follows:
"Consolidated Funded Debt/ Applicable
Consolidated EBITDA Spread
Tier Ratio 30 Day 6 Month 1 Year 3 Year
1 >2.75:1 3.00% 3.00% 3.00% 3.05%
2 <=.75:1>=2.25:1 2.85% 2.85% 2.85% 2.90%
3 <2.25:1 2.70% 2.70% 2.70% 2.75%"
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.
4. 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.
5. 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.
6. 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. MEYER__________
Title: Executive Vice President/Finance
By: __/S/ ADELE H. SUMIDA________
Title: _Controller & Secretary________
Lender:
AMERICAN AGCREDIT, FLCA
By: __/S/ XXXX O'DAY__________________________
Title: __Regional Vice President________
