AMENDED AND THIRD RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
THIS AMENDED AND THIRD RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT (the "Amendment and Restatement"), dated as of
December 31, 2001, by and among MAUI LAND & PINEAPPLE COMPANY,
INC., a Hawaii corporation (the "Borrower"), BANK OF HAWAII, a
Hawaii banking corporation ("BOH"), FIRST HAWAIIAN BANK, a Hawaii
banking corporation ("FHB"), CENTRAL PACIFIC BANK, a Hawaii
banking corporation ("CPB"), 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 collectively called the
"Lenders"), and BANK OF HAWAII, as Agent for the Lenders to the
extent and in the manner provided hereinbelow and in the Agency
Agreement referred to below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, BOH, FHB, CPB and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BOA") (BOH, FHB, CPB and
BOA, collectively, the "Original Lenders") and the Agent entered
into that certain Revolving and Term Loan Agreement, dated as of
December 31, 1992 (the "Original Loan Agreement"), which Original
Loan Agreement established a credit facility (the "Credit
Facility") in favor of Borrower in the original principal amount
of $40,000,000.00;
WHEREAS, the Original Loan Agreement was amended and
supplemented by: First Loan Modification Agreement, dated as of
March 1, 1993; letter agreements dated April 30, 1993 and June
24, 1993; Second Loan Modification Agreement, dated September 8,
1993; Third Loan Modification Agreement, dated September 30,
1993; Fourth Loan Modification Agreement, dated March 8, 1994;
Fifth Loan Modification Agreement, dated effective as of December
31, 1994; Sixth Loan Modification Agreement, dated effective as
of March 31, 1995; Seventh Loan Modification Agreement dated
effective as of December 31, 1995; each by and among the
Borrower, the Original Lenders and the Agent;
WHEREAS, BOH, FHB and CPB acquired the interests of BOA
under the Original Loan Agreement, as amended, and the other
"Loan Documents" referred to therein;
WHEREAS, the Original Loan Agreement is further amended by:
Amended and Restated Revolving Credit and Term Loan Agreement
dated December 4, 1996; letter agreement dated February 21, 1997;
First Loan Modification Agreement dated December 31, 1997; Second
Loan Modification Agreement dated March 17, 1998; letter
agreement dated November 13, 1998; Amended and Second Restated
Revolving Credit and Term Loan Agreement dated as of December 4,
1998 ("Second Restatement"); Loan Modification Agreement dated as
of December 30, 1999; letter agreement dated February 9, 2000;
Loan Modification Agreement dated June 30, 2000; and Loan
Modification Agreement effective as of December 11, 2000; Loan
Modification effective as of June 30, 2001; Loan Modification
effective as of September 30, 2001; each by and among Borrower,
BOH, FHB, CPB and Agent and, in the case of said Loan
Modification Agreement effective as of December 11, 2000 and June
30, 2001, KAPALUA LAND COMPANY, LTD., a Hawaii corporation;
WHEREAS, the Second Restatement, among other things,
establishes a development line in favor of Borrower in the
principal amount of $15,000,000, being the "Village Course
Facility" described in the Second Restatement;
WHEREAS, the Aggregate Loan Commitment (as defined in the
Original Loan Agreement, as amended) with respect the Credit
Facility, exclusive of said Village Course Facility, is
$15,000,000;
WHEREAS, PCA has acquired interests in the Credit Facility;
WHEREAS, the parties hereto wish to terminate said Village
Course Facility and, upon such termination, to increase the
Aggregate Loan Commitment with respect to the Credit Facility to
$25,000,000;
WHEREAS, for their mutual convenience, the parties wish to
restate the Original Loan Agreement to reflect their agreements
as of the date hereof with respect to the Credit Facility,
subject to the satisfaction of the conditions precedent set forth
in Section 3.2 hereof, all as set forth in this Amendment and
Restatement;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Lenders and the Agent hereby
agree that effective on the Effective Date (as defined below),
the terms and provisions of the Original Loan Agreement are
amended and restated to read in their entirety as follows:
I. Revolving Credit
1.1 In General. Subject to the terms of the Loan Agreement,
the Lenders hereby establish a credit facility in favor of the
Borrower (the "Credit Facility") under which the Lenders will
severally extend credit to the Borrower as follows:
(a) Revolving Loans. On the terms and provisions and
subject to the satisfaction of the conditions stated in the Loan
Agreement, each Lender hereby severally agrees to make loans
("Revolving Loans") to the Borrower, from time to time and at any
time prior to the Expiry Date (the "Revolving Loan Period"), each
in a principal amount equal to such Lender's Individual Loan
Commitment Percentage of the total amount to be borrowed on any
occasion; provided, however, that (1) the aggregate principal
amount at any one time outstanding of all Loans under the Credit
Facility shall not exceed $25,000,000.00 ("the Aggregate Loan
Commitment"), (2) no Lender shall be obligated to make Loans to
the Borrower under the Credit Facility which shall exceed, in the
aggregate principal amount at any one time outstanding, such
Lender's Individual Loan Commitment, (3) each advance of Loan
proceeds under the Credit Facility shall be made by the several
Lenders ratably, in a principal amount equal to such Lender's
Individual Loan Commitment Percentage of the total amount to be
borrowed on any occasion, (4) no Lender shall have any obligation
or liability to the Borrower or any other Person as a result of
the failure of another of the Lenders to observe any of its
obligations under the Loan Agreement, and (5) no Lender (in its
capacity as such) shall have any obligation or liability to the
Borrower or any other Person as a result of the failure of the
Agent to observe any of its obligations under the Loan Agreement
or the Agency Agreement. During the Revolving Loan Period the
Borrower may borrow, repay without penalty or premium and
reborrow under the Credit Facility, either the full amount of the
Aggregate Loan Commitment or any lesser sum, provided that any
borrowing hereunder shall be in an amount not less than $500,000,
and an integral multiple of $100,000, and provided that any
voluntary prepayment of the Credit Facility during the Revolving
Loan Period shall be in an amount not less than $250,000, and an
integral multiple of $50,000. Principal of and interest on the
Revolving Loans shall be paid by the Borrower at the times and in
the manner stated in the Notes and in the Loan Agreement,
including, without limitation, Section 1.6 below.
(b) Term Loans. Subject to the satisfaction of all
terms and conditions of the Loan Agreement, including, without
limitation Section 3.3 hereof, each Lender severally agrees to
make a term loan ("Term Loan") to the Borrower on the Expiry Date,
in an amount equal to the aggregate principal amount of the
Revolving Loans then outstanding and owing by the Borrower to such
Lender. The proceeds of each Term Loan to be made by each Lender
shall be used to repay in full the Revolving Loans outstanding
with respect to such Lender on the date of the making of the Term
Loan. Term Loans may not be reborrowed. Principal of and
interest on the Term Loans shall be paid by the Borrower at the
times and in the manner stated in the Term Notes and in the Loan
Agreement, including, without limitation, Section 1.6 below.
1.2 Purpose. The proceeds of the Revolving Loans shall be
used exclusively for general corporate purposes including working
capital. The proceeds of the Term Loans shall be used
exclusively to refinance the Revolving Loans.
1.3 Security. The Credit Facility and Loans shall be
secuerd by liens on or security interests in the following
collateral ("Collateral"), which liens or security interests shall
be of first priority unless otherwise approved by the Lenders:
the land and improvements, situate at Kapalua, Maui, Hawaii, known
as the Village Golf Course, the Plantation Golf Course and the Bay
Golf Course. The loan to value ratio with respect to the
Collateral shall not exceed 50%, as determined by a limited
summary appraisal in form and substance and by an appraiser
satisfactory to Agent.
1.4 Requests for Loans or Credit. Subject to the provisions
of Articles II and III, Section 1.5 and other terms and conditions
of this Agreement, the Borrower shall have the option on any
Business Day during the Revolving Loan Period to obtain new
Revolving Loans by delivering to the Agent a written and
completed "Notice of Loan/Conversion" in the form of Exhibit A
attached hereto. A Notice of Loan/Conversion must arrive no
later than noon (Hawaii Standard Time) on the date either two (2)
or three (3) Business Days prior to the proposed disbursement
date in the case of a Base Rate Loan or a LIBOR Loan,
respectively. If the Borrower fails to timely notify the Agent
of the Borrower's selection of a new Interest Period prior to the
expiration of any current Interest Period, such Loan will
automatically be converted to a Base Rate Loan upon expiration of
the current Interest Period.
Unless otherwise directed in writing by the Borrower, all
proceeds of Revolving Loans shall be credited to the Borrower's
Deposit Account No. 61-058745, maintained with Bank of Hawaii.
1.5 Conversions of Base Rate Loans to LIBOR Loans. Subject
to the provisions of Article II and other terms and conditions in
this Agreement, the Borrower shall have the option on any
Business Day (the "Conversion Date") to convert all or a portion
of the outstanding principal amount of Base Rate Loans to a LIBOR
Loan by giving Agent a Notice of Loan/Conversion at the Payment
Office no later than noon (Hawaii Standard Time) on the date
three (3) Business Days prior to the proposed Conversion Date;
provided that if an Event of Default is then in existence, the
Borrower may not convert a Base Rate Loan to a LIBOR Loan.
Although no repayment shall actually be required upon any
conversion, the proceeds thereof shall, for bookkeeping purposes,
be deemed to be applied directly to repay the outstanding
principal amount of the Loans being converted. If the Borrower
fails to timely notify Agent of the Borrower's selection of a new
Interest Period prior to the expiration of any current Interest
Period for an Loan, such Loan will automatically be converted to
a Base Rate Loan upon expiration of the current Interest Period.
LIBOR Loan amounts shall be in minimums of $500,000 and in
multiples of $100,000, with at most six (6) LIBOR Loans
outstanding at any one time.
1.6 Interest; Repayment of Loans.
(a) Interest Rate. The Borrower agrees to pay interest
on the outstanding principal balance of the Loans pursuant to the
following interest rate options that the Borrower may select in
accordance with the provisions of this Agreement:
(1) The Base Rate in effect from time to time; or
(2) LIBOR plus the Applicable Margin.
The "Applicable Margin" shall be determined based on
Borrower's Recourse Debt to Net Worth ratio as follows:
Recourse Debt Applicable Margin Applicable Margin
Net/Worth for Revolving for Term Loans
Loans
less than or 1.50 percentage 1.75 percentage
equal to 0.20 points points
greater than 0.20 1.75 percentage 2.00 percentage
but less than or points points
equal to 0.40
greater than 0.40 2.00 percentage 2.25 percentage
but less than or points points
equal to 0.60
greater than 0.60 2.25 percentage 2.50 percentage
but less than or points points
equal to 0.80
greater than 0.80 2.50 percentage 2.75 percentage
points points
Any floating rate of interest will increase or decrease
during the term of this Agreement if there is an
increase or decrease in the rate to which the floating
rate is tied. If the rate to which the floating rate
is tied is no longer available, the Agent will choose a
new rate that is based on comparable information.
Any change in the Applicable Margin shall take effect
on the first day of the second fiscal quarter following
the date as of which such Applicable Margin is
determined. For example, the Applicable Margin
effective on July 1, shall be based on the Borrower's
Recourse Debt to Net Worth ratio as of the fiscal
quarter ending March 31.
Interest hereunder shall be computed, but not
compounded, daily on the basis of the rate of interest
then in effect. A change in the Base Rate shall take
effect on the date upon which a change in the Base Rate
is announced and made effective by Bank of Hawaii, with
or without notice to the Borrower. With respect to any
LIBOR Loan, interest will be calculated at a fixed rate
for the applicable Interest Period. Interest and fees
hereunder shall be computed on the basis of the actual
number of days elapsed between payments and a 365-day
year (or a 366-day year in leap years) in respect of
any Base Rate Loan or a 360-day year in respect of any
LIBOR Loan.
In no event shall the Borrower be obligated to pay any
amount under the Loan Agreement that exceeds the
maximum amount allowable by law. If any sum is
collected in excess of the applicable maximum amount
allowable by law, the excess collected shall, at
Agent's discretion, be applied to reduce the principal
balance of the Loans or returned to the Borrower.
(b) Repayment of Loans.
(1) Payment Schedule - Revolving Loans. Borrower
agrees to repay the Revolving Loans as follows:
(i) The Borrower agrees to make quarterly
payments of all accrued interest on the outstanding principal
balance of each Base Rate Loan on the last day of each of March,
June, September and December during the term of the Loan Agreement.
(ii) The Borrower agrees to pay interest on the
unpaid principal amount of each LIBOR Loan on the earlier of i) the
last day of the Interest Period or ii) the last day of each three-
month interval occurring during the Interest Period.
(iii) On the Expiry Date, 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.
(2) Payment Schedule - Term Loans. Borrower
agrees to repay the Term Loans as follows:
(i) The Borrower agrees to make quarterly
payments of all accrued interest on the outstanding principal
balance of each Base Rate Loan on the last day of each of March,
June, September and December during the term of this Agreement.
(ii) The Borrower agrees to pay interest on
the unpaid principal amount of each LIBOR Loan on the earlier of
i) the last day of the Interest Period or ii) the last day of each
three-month interval occurring during the Interest Period.
(iii)Commencing on the last day of June, 2004,
and continuing on the last day of every sixth month thereafter
until the Term Loans are paid in full, Borrower agrees to pay
installments of principal equal to 1/6 of the aggregate principal
balance of the Term Loans as of January 1, 2004.
(iv) The Borrower agrees to pay in full on or
before the Maturity Date all principal and accrued interest then
outstanding under the Term Loans.
(3) Currency, Place and Dates of Payments. No
payment or prepayment of principal under any of the Notes shall
be made without a concurrent payment or prepayment of principal
under the other Notes, and all principal amounts paid or prepaid
on the Notes shall be shared among the Lenders pro rata, in
accordance with their respective Individual Loan Commitment
Percentages. Payments to be made under the Loan Agreement to the
Lenders shall be made in United States money in immediately
available funds at the Agent's address stated below, or at such
other place as the Agent shall have designated by written notice
to the Borrower. Any payment due on a day that is not a Business
Day shall be made on the next succeeding Business Day and the
extension of time shall be included in the computation of interest.
Any payment received by the Agent after 11:00 a.m. shall not be
credited until the next Business Day.
(4) Evidence of Making and Repayment of Loans.
The Agent's records evidencing the date of disbursement and
principal amount of each Loan and the amounts of all repayments of
principal and payments of interest on each Loan shall constitute
prima facie evidence of the making and repayment of such Loans and
of the payment of such interest. However, the Agent's making of
erroneous notations in its records shall not affect the Borrower's
obligation to repay the outstanding balance of principal under a
Loan, and accrued interest thereon, as provided in the Loan
Agreement.
(5) Prepayments. The Borrower may prepay any
Base Rate Loan at any time, in whole or in part, without prepayment
penalty. Partial prepayments shall be applied against required
payments of the most remote maturity, and will not extend the dates
or change the amounts of subsequent installment payments.
(6) Application of Payments. During the existence
of an Event of Default, payments under the Loan Agreement may be
applied by the Lenders to the indebtedness evidenced by the Loan
Agreement in any manner the Majority of Interest of the Lenders
deems appropriate. The priority of application elected by the
Lenders on any one occasion shall not determine any such election
in the future. Provided that an Event of Default shall not have
occurred and be continuing, payments under the Loan Document
shall be applied first to payment of sums, other than principal
or interest, then payable by Borrower under the Loan Agreement,
then to accrued interest then due and payable and then to
principal.
1.7 Evidence of Indebtedness; Loan Documents. The Loans
and Credit Facility are or are to be evidenced and/or secured by
the Loan Agreement, Master Notes, each in the form attached hereto
as Exhibit B, payable to each Lender in the original amount of
such Lender's Individual Loan Commitment (collectively the "Notes"),
the Mortgage, the Additional Security Mortgage, the Environmental
Indemnification Agreement and all such other documents as the
Bank may require from time to time to effectuate the intent of
the Loan Agreement, together with all renewals, extensions and
modifications thereto (collectively the "Loan Documents").
1.8 The Borrower's Obligations. The Borrower's obligations
tp pay, observe and perform all indebtedness, liabilities, covenants
and other obligations on the part of the Borrower to be paid,
observed and performed under the Loan Agreement and the remainder
of the Loan Documents are herein collectively called the
"Obligations".
1.9 Fees.
(a) Commitment Fee. The Borrower shall pay to the Agent
for pro rata distribution to each Lender, a commitment fee on the
average daily unutilized portion of the Aggregate Loan Commitment,
computed at the rate of one-quarter of one percent (0.25%) per
annum computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days (as the actual case may be) and
payable quarterly in arrears, on the last day of each March,
June, September and December during the Revolving Loan Period,
and on the Expiry Date.
(b) Commitment Increase Fee. The Borrower shall pay to
the Agent, on demand, for distribution to the Lenders the following
non-refundable fee: $20,000.00, of which $1,900.00 shall be
payable to BOH, $2,000.000 shall be payable to FHB, $4,100.00
shall be payable to CPB and $12,000.00 shall be payable to PCA.
(c) Amendment Fee. The Borrower shall pay to the Agent,
on demand, for distribution to BOH, FHB and CPB the following non-
refundable fee: $9,750.00, of which $5,232.50 shall be payable
to BOH, $3,250.00 shall be payable to FHB and $1,267.50 shall be
payable to CPB.
(d) Agent's Fee. For and in respect of the services of
the Agent to be rendered with respect to the Credit Facility under
the Loan Agreement and under the Agency Agreement, the Borrower
agrees to pay to the Agent the fee established by separate
agreement between Agent and Borrower.
II. FUNDING LOSS AND YIELD PROTECTION PROVISIONS
2.1 Prepayment. The Borrower may not prepay any LIBOR Loan
in full or in part at any time. The Borrower is responsible for
managing the allocation of borrowings among the Types of Loans to
avoid prepaying a LIBOR Loan to make a mandatory repayment of
principal.
2.2 Change in Legality; Additional Costs to Lenders. If
after the date of the Loan Agreement any change in applicable law
or regulation or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law)
shall, with respect to the Lenders, or any of them, (a) change
the basis of taxation of payments to the Lenders, or any of them,
or the principal or interest on the Loans under the Loan
Agreement, (b) impose, modify or hold applicable any fees,
reserve requirements, special deposits or any costs to the
Lenders, or any of them, in respect of the Loans, or (c) cause a
reduction in the amount of any sum received or receivable under
the Loan Agreement; then, and in any such event, the Borrower
shall pay to the Agent, on demand, for distribution to such
Lender(s), such additional amounts as will compensate such
Lender(s) on an after-tax basis for such cost or reduction
incurred; provided, however, that the Borrower shall not be
obligated directly or indirectly to pay for federal or state
income taxes measured or levied generally upon the net income of
any Lender. The Lenders may use any reasonable method in
calculating their additional costs under this Section, which
calculation shall be conclusive absent manifest error.
2.3 Capital Requirements. If the Lenders, or any of them,
shall determine that compliance with any law, regulation or any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law) would result
in an increase in the amount of capital required or expected to
be maintained by such Lender(s) or any corporation controlling
such Lender(s), and that such increase is based upon the
existence of such Lender's commitment hereunder and other
commitments of this type, then, and in any such event, the
Borrower shall pay the Agent as an additional fee, from time to
time on demand, for distribution to such Lender(s), such
amount(s) as such Lender(s) shall determine to be the amount(s)
that will compensate it or them or such other corporation for any
reduction in the rate of return on such capital. A certificate
as to the amount of compensation, submitted to the Borrower by
the affected Lender(s), shall be conclusive and binding for all
purposes absent manifest error.
2.4 Lack of Availability or Profitability of Eurodollar
Deposits; Illegality. In the event that any Lender shall have
reasonably determined (which determination shall be final and
conclusive and binding upon all parties) that:
(a) on any date for determining LIBOR for any Interest
Period, by reason of any change after the date hereof affecting
the interbank market or affecting the position of such Lender in
such market, adequate and fair means do not exist for ascertaining
the applicable interest rate by reference to LIBOR; or
(b) at any time, by reason of (i) any change after the
date of the Loan Agreement in any applicable law or governmental
rule, regulation or order (or any interpretation thereof by any
government authority or otherwise (provided that, in the case of
an interpretation not by a governmental authority, such
interpretation shall be made in good faith and shall have a
reasonable basis) and including the introduction of any new law
or governmental rule, regulation or order), to the extent not
provided for in clause (c) below, or (ii) in the case of LIBOR
Loans, other circumstances affecting such Lender or the interbank
market or the position of such Lender in such market, LIBOR shall
not represent the effective pricing to such Lender for funding or
maintaining the affected LIBOR Loan; or
(c) at any time, by reason of the requirements of
Regulation D or other official reserve requirements, LIBOR shall
not represent the effective pricing to such Lender for funding or
maintaining the affected LIBOR Loan; or
(d) at any time, the making or continuance of any LIBOR
loan has become unlawful or compliance by such Lender in good faith
with any law, governmental rule, regulation, guideline or order, or
would cause severe hardship to such Lender as a result of a
contingency occurring after the date hereof which materially and
adversely affects the interbank market; then, and in any such event,
such Lender shall on such date of determination give notice (by
telephone confirmed in writing) to the Agent and the Borrower of
such determination. Thereafter, in the case of clause (a), (b) or
(c) above, (and without affecting Borrower's obligations to pay
interest on the Loans at the rates set forth in Section 1.6 hereof)
Borrower shall pay to the Agent for payment to such Lender, upon
written demand therefor, such additional amounts deemed in good
faith by such Lender to be material (in the form of an increased
rate of, or a different method of calculating, interest or otherwise
as the Agent or such Lender in its discretion shall determine) as
shall be required to cause such Lender to receive interest with
respect to its affected LIBOR Loan at a rate per annum equal to the
sum of (i) the applicable rate per annum determined in accordance
with Section 1.6, hereinabove, plus (ii) the effective pricing to
such Lender to make or maintain such LIBOR Loan, and in the case
of clause (d), Borrower shall within five (5) Business Days prepay
all LIBOR Loans so affected, together with all accrued interest
thereon but without penalty for any costs, net losses or overhead
pursuant to Section 2.6, subject to the provisions of Section 2.5
hereinbelow. A certificate as to additional amounts owed to any
Lender, shown in reasonable detail the basis for the calculation
thereof, submitted to Borrower and the Agent by the Lender shall,
absent manifest error, be final, conclusive and binding upon all
of the parties hereto.
2.5 Borrower's Right to Convert Loans. At any time that any
of its Borrowings are affected by the circumstances described in
Section 2.4 Borrower may (a) if a LIBOR Loan has been requested
but not implemented, cancel such Loan or conversion by giving the
Agent notice thereof by telephone (confirmed in writing) pursuant
to Section 2.4 or (b) if the affected LIBOR Loan is then
outstanding, upon at least three (3) Business Days' written
notice to the Agent, require the Lenders to convert such LIBOR
Loan into a Base Rate Loan.
2.6 Funding Loss Indemnification. If the Borrower shall (a)
pay or convert any LIBOR Loan on any day other than the last day
of the applicable Interest Period (whether on account of a
scheduled payment, an optional prepayment or conversion, a
mandatory prepayment or conversion, a payment upon acceleration or
otherwise); or (b) fail to borrow any LIBOR Loan after giving due
notice thereof to the Agent pursuant to Section 1.4, or (c) fail
to convert any Base Rate Loan into a LIBOR Loan after giving due
notice thereof to the Agent pursuant to Section 1.5, the Borrower
shall reimburse the Lenders and hold the Lenders harmless for all
costs, net losses or administrative overhead incurred as a result
of such repayment, prepayment or failure. The Lenders may use
any reasonable method in calculating their loss under this
Section, which calculation shall be binding and conclusive on the
Borrower absent manifest error.
III. CONDITIONS PRECEDENT
3.1 Documents Required. The Lenders shall have no several
obligations to make disbursements of Loans pursuant to the
provisions of the Loan Agreement, unless and until the Lenders
(through the Agent) shall have received such executed originals
or certified copies of each of the following instruments as the
Lenders (through the Agent) may have reasonably requested, in
each case in form and substance acceptable to the Lenders and
their respective legal counsel:
(a) The Loan Agreement, the Notes, the Mortgage, the
Additional Security Mortgage, UCC Financing Statements describing
the security interests created by the Mortgage and Additional
Security Mortgage, and the Environmental Indemnity Agreement;
(b) The Agency Agreement;
(c) A certificate signed by the Borrower's corporate
secretary, certifying to the Lenders and Agent: (1) as to the
adoption of Resolutions of the Borrower's Board of Directors
authorizing the execution, delivery and performance of the Loan
Documents and all other documents to be delivered by the Borrower
pursuant to the Loan Agreement; (2) as to the incumbency and
signatures of the officers of the Borrower signing the Loan
Documents, and each other document to be delivered by the
Borrower pursuant to this Loan Agreement; and (3) that the
Articles of Incorporation and By-Laws of the Borrower, true
copies of which have been attached to such certification, have
not been amended since the date of such delivery;
(d) A certificate of the Director of Commerce and
Consumer Affairs of the State of Hawaii, evidencing the good
standing of the Borrower in the State of Hawaii;
(e) A written opinion of independent counsel to the
Borrower, addressed to the Lenders, stating that:
(1) The Borrower and the Subsidiaries are
corporations duly organized, validly existing and in good
standing under the Laws of the State of Hawaii and are duly
qualified and in good standing as foreign corporations in all
jurisdictions wherein the nature of their businesses or the
properties owned by them make such qualification necessary;
(2) The Borrower has the corporate power and
authority to execute and deliver the Loan Documents, to borrow
money hereunder, and to perform the Obligations;
(3) All corporate action required to be taken
by the Borrower to enter into the transactions contemplated by
the Loan Agreement has been duly taken, and all consents and
approvals of all Persons, necessary to the validity of the Loan
Documents, and each other document to be delivered by the
Borrower hereunder have been duly obtained, and the Loan
Documents and such other documents do not conflict with any
provision of the Articles of Incorporation or By-Laws of the
Borrower, or of any applicable Laws or any other agreement
binding upon the Borrower or its property of which such counsel
has knowledge and the Borrower's execution, delivery and
performance of the Loan Documents do not require the consent or
approval of any governmental body or regulatory authority;
(4) The Loan Documents and all other documents
required to be delivered by the Borrower pursuant to the
provisions of the Loan Agreement have been duly executed by,
and each is a valid and binding obligation of, the Borrower,
enforceable in accordance with its terms;
(5) Kapalua Land Company, Ltd. ("KLC") has the
corporate power and authority to execute and deliver the
Additional Security Mortgage, all corporate action required to
be taken by KLC in respect of its execution and delivery of
the Additional Security Mortgage has been duly taken, and the
Additional Security Mortgage has been duly executed and
delivered by KLC and is a valid and binding obligation of KLC,
enforceable in accordance with its terms; and
(f) Evidence that the Revolving and Term Loan
Agreement dated as of December 27, 1990, as amended by instruments
dated as of December 31, 1991 and March 31, 1992, among Bank of
Hawaii, First Hawaiian Bank and Bank of America National Trust and
Savings Association (successor-in-interest to Security Pacific
National Bank), as Lenders, Bank of Hawaii, as Agent, and the
Borrower, together with the Notes and Agency Agreement therein
described, have been terminated, and that all Loans and all other
indebtedness of the Borrower thereunder have been repaid or paid
in full (or that arrangements, acceptable to the Lenders and
Agent thereunder, the Lenders and Agent hereunder, and the
Borrower, have been made for the repayment of said Loans and the
payment of all such other indebtedness from the proceeds of the
initial Loans under this Loan Agreement); and
(g) Evidence that the Mortgage and Additional
Security Mortgage have been recorded in the Bureau of Conveyances
of the State of Hawaii (and, if appropriate, filed in the office
of the Assistant Registrar of the Land Court of Hawaii), that the
related UCC Financing Statements have been filed in said Bureau,
and that the Lenders hold a first mortgage lien on and first
security interest in all properties described in and purported to
be encumbered by the Mortgage and Additional Security Mortgage,
subject to no liens or encumbrances other than those noted in
(or authorized by) the Mortgage.
In addition to the foregoing conditions precedent, the
following conditions shall have been satisfied:
(h) At the time of the initial disbursement of Loan
proceeds under the Loan Agreement and of each subsequent
disbursement of Loan proceeds under the Loan Agreement:
(1) No Event of Default under the Loan Agreement
shall have occurred and be continuing, and no event shall have
occurred and be continuing that, with the giving of notice or
passage of time, or both, would become such an Event of Default;
(2) The Agent shall have received a request for
such disbursement pursuant to Section 1.4 of the Loan Agreement;
(3) The representations and warranties contained
in Article IV of the Loan Agreement shall be true on and as of the
date of such disbursement with the same force and effect as if
made on and as of such date;
(4) The Lenders shall have remitted to the Agent
the Lenders, respective pro rata shares of the disbursement then
due; and
(5) All legal matters incidental to such
disbursement shall be satisfactory to the Agent's counsel.
The parties hereto acknowledge that the foregoing conditions
precedent set forth in this Section 3.1 have heretofore been
satisfied with respect to the initial disbursement of Loan
proceeds.
3.2 Conditions Precedent to Effective Date of Amendment and
Restatement. Notwithstanding anything herein to the contrary,
the effectiveness of the amendment and restatement of the
Original Loan Agreement in accordance with the terms of this
Amendment and Restatement, is subject to the satisfaction of all
of the following conditions, and on the date of the satisfaction
of such conditions (the "Effective Date"), the Original Loan
Agreement shall be deemed amended and restated as set forth
herein:
(a) Documents Required. The Agent shall have received,
in each case in form and substance satisfactory to the Agent and
the Lenders, such fully executed originals or certified copies as
the Agent and the Lenders may have requested of each of the
following, in each case as amended through the Effective Date:
(1) Loan Documents. This Amendment and Restatement
and the Notes, each executed by the Borrower and completed in
conformity with the provisions of this Amendment and Restatement,
the Confirmations of Mortgage and the Agency Agreement;
(2) Consents and Authority. Evidence that the
Borrower has obtained all necessary and appropriate authority,
approvals and consents to execute, deliver and perform the terms
of (i) this Amendment and Restatement, the Notes, and the
Confirmations of Mortgage (collectively called the "Amending
Documents") and (ii) the Loan Documents, as amended and restated
by the Amending Documents, including, without limitation,
certified resolutions of the Borrower as to such authority;
(3) Opinion of Counsel. A written opinion of
independent counsel to the Borrower, addressed to the Lenders,
stating that:
(i) The Borrower, Kapalua Land Company, Ltd.
("KLC") and Maui Pineapple Company, Ltd. are corporations duly
organized, validly existing and in good standing under the Laws
of the State of Hawaii and are duly qualified and in good standing
as foreign corporations in all jurisdictions wherein the nature of
their businesses or the properties owned by them make such
qualification necessary;
(ii) The Borrower has the corporate power and
authority to execute and deliver the Loan Documents, to borrow
money hereunder, and to perform the Obligations;
(iii) All corporate action required to be
taken by the Borrower to enter into the transactions contemplated
by the Loan Agreement has been duly taken, and all consents and
approvals of all Persons, necessary to the validity of the Loan
Documents, and each other document to be delivered by the Borrower
hereunder have been duly obtained, and the Loan Documents and such
other documents do not conflict with any provision of the Articles
of Incorporation or By-Laws of the Borrower, or of any applicable
Laws or any other agreement binding upon the Borrower or its
property of which such counsel has knowledge and the Borrower's
execution, delivery and performance of the Loan Documents do not
require the consent or approval of any governmental body or
regulatory authority;
(iv) The Loan Documents and all other documents
required to be delivered by the Borrower pursuant to the provisions
of the Loan Agreement have been duly executed by, and each is a
valid and binding obligation of, the Borrower, enforceable in
accordance with its terms;
(v) KLC has the corporate power and authority
to execute and deliver the Additional Security Mortgage and the
Confirmation of Mortgage to which KLC is a party, all corporate
action required to be taken by KLC in respect of its execution
and delivery of the Additional Security Mortgage has been duly
taken and such Confirmation of Mortgage, and the Additional
Security Mortgage and such Confirmation of Mortgage have been
duly executed and delivered by KLC and is a valid and binding
obligation of KLC, enforceable in accordance with their terms; and
(4) Title Insurance. An ALTA Form Lender's Title
Insurance Policy for not less than $25,000,000.00, assuring to
the Lenders the validity and agreed-upon priority of the Mortgage
and the Additional Security Mortgage may require. Such Title
Insurance Policy may be subject to an exception for survey matters.
(b) Certain other Events. On the Effective Date:
(1) No event shall have occurred and be continuing
that (i) constitutes an Event of Default, or (ii) with the giving
of notice or passage of time, or both, would constitute such an
Event of Default (a "Default").
(2) The representations and warranties contained
in Article IV of the Loan Agreement shall be true on and as of the
Effective Date with the same force and effect as if made on the
Effective Date, other than as previously disclosed to the Agent
with respect to the representations and warranties set forth in
Sections 4.6 and 4.9 hereof.
(3) No material adverse change shall have occurred
in the financial condition of the Borrower since the date of the
most recent of the Borrower's Financial Statements submitted to
the Agent.
(4) All legal matters incidental to the closing
shall be satisfactory to legal counsel for the Agent and each
Lender.
(c) Interest and Other Charges. On the Effective Date,
the Borrower shall have paid to the Agent (1) the fees referred to
in Sections 1.9(b) and 1.9(c) hereof, and (2) all sums of accrued
interest and other fees and charges then outstanding under the
Loan Documents.
(d) Village Course Facility. The Village Course
Facility (as defined in the Second Restatement) shall be paid in
full. On the Effective Date, subject to the satisfaction of the
foregoing conditions, the Original Loan Agreement shall be deemed
amended and restated in accordance with the provisions of this
Amendment and Restatement, with the force and effect below in
Article X.
3.3 Conditions to Term Loans. The obligation of the Lenders
to make their respective Term Loans to the Borrower on the Expiry
Date shall be subject to the satisfaction of the following
conditions precedent:
(a) Defaults and Events of Default. No Default or
Event of Default under the Loan Agreement shall have occurred and
be continuing;
(b) Representations and Warranties. The representations
and warranties contained in Article IV of the Loan Agreement shall
be true on and as of the Expiry Date with the same force and effect
as if made on the Expiry Date;
(c) Certificate. The Borrower shall have delivered to
the Agent and the Lenders a certificate dated the Expiry Date,
signed by the President or an Executive Vice President of the
Borrower, certifying to the Agent and the Lenders that:
(1) The representations and warranties contained
in Article IV of the Loan Agreement are true on and as of such
date; and
(2) No Event of Default under the Loan Agreement,
and no event which, with the giving of notice or passage of time,
or both, would become an Event of Default, has occurred on and as
of such date;
(d) Illegality. The making of the Term Loans shall not
have been rendered illegal by any of the Laws applicable thereto.
If such conditions shall not have been satisfied on Expiry
Date, all outstanding principal together with accrued and
theretofore unpaid interest on the Revolving Loans and all other
amounts due to the Lenders under the Loan Documents shall be paid
in full on the Expiry Date.
IV. Representations and Warranties
To induce the Lenders to enter into this Amendment and
Restatement, the Borrower represents and warrants to the Lenders
as follows, which representations and warranties shall survive
the execution of this Amendment and Restatement and continue so
long as the Borrower is indebted to the Bank under the Loan
Documents, and until payment in full of the Credit Facility and
Loans.
4.1 Organization. The Borrower and the Subsidiaries are
corporations duly organized, validly existing and in good
standing under the Laws of the State of Hawaii; the Borrower and
the Subsidiaries have the lawful corporate power and adequate
authority, rights and franchises to own or lease their respective
properties and to engage in the businesses they each conduct, and
each is duly qualified and in good standing as a foreign
corporation in each jurisdiction, if any, wherein the nature of
the business transacted by it or property owned by it makes such
qualification necessary.
4.2 No Breach. The execution and performance of the Loan
Documents will not immediately, or with the passage of time or
the giving of notice, or both:
(a) Violate the Articles of Incorporation or By-Laws
of the Borrower, or violate any Laws or breach or result in a
default under any contract, agreement, or instrument to which the
Borrower or any Subsidiary is a party or by which the Borrower or
any Subsidiary or its property is bound, or require the consent
or approval of any governmental office or official; or
(b) Result in the creation (or an obligation to
create) or imposition of any security interest in, or lien or
encumbrance on, any of the assets of the Borrower or any
Subsidiary, other than the liens or security interests intended
to be created by the Mortgage and by the Additional Security
Mortgage.
4.3 Authorization. The Borrower has the corporate power
and authority to execute and deliver the Loan Document and to
incur and perform the obligations, and has taken all corporate
action necessary to authorize the execution, delivery, and
performance of the Loan Documents.
4.4 Regulatory Approval. The Borrower's execution,
delivery and performance of the Loan Documents do not require
the consent or approval of any governmental body or other
regulatory authority.
4.5 Enforceability. The Loan Agreement is, and the
remainder of the Loan Documents when executed and delivered
will be, the legal, valid and binding obligations of the
Borrower, and enforceable in accordance with their respective
terms.
4.6 Financial Statements. All Financial Statements
heretofore furnished by the Borrower to the Lenders, including
any schedules and notes pertaining thereto, were prepared in
accordance with generally accepted accounting principles
consistently applied ("GAAP"), and fully and fairly presented the
financial condition of the Borrower and its Subsidiaries at the
dates thereof and the results of operations for the periods
covered thereby, and as of the date of this Amendment and
Restatement there have been no material adverse changes in the
consolidated financial condition or business of the Borrower and
its Subsidiaries from the date of the most recent Financial
Statements furnished to the Lenders, except as disclosed by
Borrower to Agent in writing.
4.7 Taxes. Except as otherwise permitted by the Loan
Agreement, the Borrower and its Subsidiaries have filed all
federal, state and local tax returns and other reports they
were required by Laws to have filed prior to the date of
this Amendment and Restatement and which are material to the
conduct of their respective businesses, have paid or caused to
be paid all taxes, assessments and other governmental charges
that were due and payable prior to the date of this Amendment
and Restatement, and have made adequate provision for the
payment of such taxes, assessments or other charges accruing
but not yet payable; and the Borrower has no knowledge of any
deficiency or additional assessment in a materially important
amount in connection with any taxes, assessments or charges not
provided for on its books.
4.8 Compliance with Law. Except to the extent that the
failure to comply would not materially interfere with the conduct
of the business of the Borrower or any Subsidiary or have a
materially adverse effect on the financial condition of the
Borrower or any Subsidiary, the Borrower and its Subsidiaries
have complied with all applicable Laws in respect of: (1)
restrictions, specifications, or other requirements pertaining to
products that the Borrower or any Subsidiary grows, manufactures
or sells or to the services each performs; (2) the conduct of
their respective businesses; and (3) the use, maintenance, and
operation of the real and personal properties owned or leased by
them in the conduct of their respective businesses.
4.9 Hazardous Materials. There are no chemical substances,
pollutants, contaminants or hazardous or toxic substances,
materials or wastes (collectively, "hazardous materials") at any
premises owned, leased, operated, controlled or used by the
Borrower or any of the Subsidiaries where such could reasonably
be expected to have a materially adverse effect on the operations
or financial condition of the Borrower and the Subsidiaries or
the Borrower's ability to repay the Loans, and the Borrower and
the Subsidiaries do not manufacture, process, distribute, use,
treat, store, dispose of, transport or handle hazardous materials
in such a manner as to create expectations of such a materially
adverse effect on the operations or financial condition of the
Borrower and the Subsidiaries or the Borrower's ability to repay
the Loans.
4.10 Subsidiaries. The Borrower has no Subsidiaries other
than those listed in Exhibit C, attached hereto.
4.11 Litigation. No litigation or other proceeding is
pending or threatened against the Borrower or any of its
Subsidiaries or any of their respective properties which if
determined adversely to the Borrower or any such Subsidiary,
would have a materially adverse effect on the Collateral or on
the consolidated financial condition or business prospects of
the Borrower and its Subsidiaries, except as disclosed by
Borrower to Agent in writing.
4.12 Margin Stock. Neither the execution of the Loan
Agreement nor the Borrower's use of proceeds of the Loans will
constitute a violation of any of Regulations G, T and U of the
Board of Governors of the Federal Reserve System or any
interpretations thereof or rulings thereunder.
4.13 Ownership of Assets. The Borrower and its
Subsidiaries have good and marketable title to all of their
respective assets, subject only to such exceptions or
encumbrances as do not materially adversely affect either the
consolidated financial conditions of the Borrower and its
Subsidiaries as currently reflected in the Financial
Statements or the conduct of the businesses of the Borrower
and its Subsidiaries.
4.14 ERISA. All Defined Benefit Pension Plans, as
defined in the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), of the Borrower and each Subsidiary meet
the minimum funding standards of ERISA, and no Reportable Event
or Prohibited Transaction, as defined in ERISA, has occurred in
respect of any such Plan.
4.15 Statements and Omissions. No representation or
warranty by the Borrower contained in the Loan Agreement or in
any certificate or other document furnished by the Borrower
pursuant to the Loan Agreement contains any untrue statement
of material fact or omits to state a material fact necessary to
make such representation or warranty not misleading in light of
the circumstances under which it was made.
4.16 Other Federal Regulations. Neither the Borrower nor
any Subsidiary is subject to provisions of the Investment
Company Act of 1940, provisions of the Public Utility Holding
Company Act of 1935, provisions of the Interstate Commerce Act
or provisions of any other statute or regulation which restrict
the execution or performance of this Loan Agreement or the
Notes by the Borrower.
V. Affirmative Covenants
For so long as the Commitment or any of the Obligations
remains outstanding, the Borrower will, unless otherwise
permitted by the Bank in writing:
5.1 Payments. Punctually pay when due all sums which may
be due under the Loan Documents.
5.2 Accounting Records. Maintain accounting records and
books for Borrower and the Subsidiaries, in accordance with
GAAP, provide the Agent with access to such books and
accounting records at the Agent's request during the Borrower's
normal business hours and furnish to the Lenders (through the
Agent) any information regarding the business affairs and
financial condition of Borrower and the Subsidiaries within a
reasonable time after written request therefor.
5.3 Financial Reporting. Furnish the Lenders, through
the Agent, with financial reports, in reasonable detail and
form approved by the Agent, as follows:
(a) Within 60 days after the close of each
quarterly accounting period in each fiscal year: (i) a
consolidated statement of Net Worth and a consolidated
statement of cash flow of the Borrower and the Subsidiaries
for such quarterly period; (ii) a consolidated income statement
of the Borrower and the Subsidiaries for such quarterly period;
(iii) a consolidated balance sheet of the Borrower and the
Subsidiaries as of the end of such quarterly period; (iv)
summary schedules of income and cash flow for the Borrower's
resort division and pineapple division, Napili Plaza and
Kaahumanu Center, subject to year-end audit adjustments and
certified by the Borrower's President or chief financial
officer to have been prepared in accordance with GAAP by the
Borrower and Subsidiaries, except for any inconsistencies
explained in such certificate; and (v) a written summary of
all projects approved by the Borrower or any of its
Subsidiaries during such quarterly period which are reasonably
expected to involve Capital Expenditures exceeding
$1,000,000.00;
(b) Within 90 days after the close of each fiscal
year: (i) a consolidated statement of Net Worth and a
consolidated statement of cash flow of the Borrower and the
Subsidiaries for such fiscal year; (ii) a consolidated income
statement of the Borrower and the Subsidiaries for such fiscal
year; (iii) a consolidated balance sheet of the Borrower and
the Subsidiaries as of the end of such fiscal year (all of the
aforementioned financialstatements to be audited and certified
to without qualification by independent certified public
accountants selected by the Borrower); (iv) summary schedules
of income and cash flow for the Borrower's resort division and
pineapple division, Napili Plaza and Kaahumanu Center; and (v)
detailed statements of Capital Expenditures and Investments
made or incurred in such fiscal year, all of the foregoing
including all supporting schedules and comments;
(c) By November 15 of each year, (i) copies of the
Borrower's three-to-five year summary forecast of income and
cash flow for the Borrower's resort division and pineapple
division, Napili Plaza and Kaahumanu Center, and (ii) a
Capital Expenditure and Investment forecast for each such
division;
(d) Promptly after the sending or making available
or filing of the same, copies of all reports, proxy statements
and financial statements that the Borrower sends or makes
available to its stockholders and all registration statements
and reports that the Borrower files with the Securities and
Exchange Commission or any successor Person;
(e) Within 60 days following the close of each
quarterly period, statements of KCA's net worth at the end of
such period and cash flow for such period, KCA's income
statement for such period, and KCA's balance sheet as of the
end of such period, in reasonable detail, certified to by
KCA's chief financial officer;
(f) The financial statements required pursuant to
clauses (a) and (b) shall be accompanied by a compliance
certificate from Borrower's chief financial officer, in the
form attached as Schedule 5.3 certifying (i) the financial
ratios and other requirements referred to in Section 5.10,
(ii) the representations and warranties set forth in Article
IV as being true and correct on and as of such date, and (iii)
that no Event of Default has occurred or is continuing; and
(g) From time to time such other information as
the Bank may reasonably request.
5.4 Existence. Preserve and maintain the legal
existence of Borrower and the subsidiaries, and timely file all
necessary and appropriate documents and exhibits and pay all
appropriate fees and charges in connection therewith; provided,
however, that the Borrower shall have the right to dissolve or
liquidate such of its Subsidiaries as its management may
determine to dissolve or liquidate in the exercise of sound
business judgment.
5.5 Observance of Laws. Conduct the business activities
of Borrower and the Subsidiaries in an orderly, efficient and
regular manner and in compliance with all requirements of all
applicable state, federal and local laws, rules and regulations.
5.6 Insurance. Maintain, or cause to be maintained,
commercial general liability insurance and commercial property
insurance on all assets owned or leased by Borrower, all in such
form and amounts as are consistent with industry practices. The
Borrower and its Subsidiaries may procure any such insurance
from any insurance company or companies authorized to do
business in Hawaii.
5.7 Facilities. Keep all of the Borrower's and the
Subsidiaries' property and business premises in a good state of
repair and condition, make all necessary repairs, renewals and
replacements thereto from time to time so that such property and
business premises shall be fully and efficiently preserved and
maintained, keep such property and business premises free and
clear of all liens, charges or encumbrances except those
consented to by the Agent in writing and permit the Lender's
authorized representatives to make reasonable inspections of the
Borrower's and the Subsidiaries' property and business premises.
5.8 Taxes and Other Liabilities. Pay or cause to be paid
when due, all taxes, assessments and charges or levies imposed
upon Borrower or the Subsidiaries or on any of their property or
which any of them is required to withhold and pay over, except
where contested in good faith by appropriate proceedings with
adequate reserves therefor having been set aside on their books,
and the Borrower will pay all governmental charges or taxes
(except income, franchise or similar taxes) at any time payable
or ruled to be payable in respect of the existence, execution or
delivery of the Loan Agreement and the Notes by reason of any
existing or hereafter enacted federal or state statute.
5.9 Notice to the Bank. Promptly give notice to the Agent,
in reasonable detail, of (a) the occurrence of any Event of
Default or of any fact, condition or event that only with the
giving of notice or passage of time, or both, could become such
an Event of Default, (b) any change in the name or organizational
structure of the Borrower, (c) any uninsured loss through fire,
theft, liability or property damage exceeding $500,000.00, (d)
any pending or threatened litigation affecting the Borrower or
any of the Collateral involving an amount exceeding
$1,000,000.00, (e) any event which could have a material adverse
effect on the ability of the Borrower to continue its business
operations in the ordinary course, (f) any change in the
Borrower's principal place of business, and (g) the occurrence of
any event in respect of which a report on Form 8-K should be
filed by the Borrower with the Securities and Exchange Commission.
5.10 Financial Condition. Maintain the Borrower's financial
condition according to the following standards, in each such case
determined in accordance with GAAP: The Borrower will maintain as
of the end of each fiscal quarter and will provide evidence of
the same pursuant to Section 5.3 hereof:
(a) Debt Service Coverage Ratio of not less than 1.20;
(b) A Recourse Debt to Net Worth ratio of not more
than 1.10; and
(c) A Net Worth of not less than $60,100,000.00, plus
50% of cumulative Net Profits (but not the net losses) after
December 31, 1998.
5.11 ERISA. Fund or cause to be funded all Defined Benefit
Pension Plans of Borrower and the Subsidiaries in accordance with
no less than the minimum funding standards of ERISA; and (ii)
promptly advise the Agent of the occurrence of any Reportable
Event or Prohibited Transaction in respect of any such Plan.
VI. Negative Covenants
For so long as the Commitment or any Obligation remains
outstanding, the Borrower will not, without the prior written
consent of the Lenders, and will not, without the prior written
consent of the Lenders, cause or suffer any Subsidiary to:
6.1 Use of Funds. Use any of the proceeds of the Loans for
any purpose except as set forth in Section 1.2 of this Agreement.
6.2 Merger or Consolidation; Business. Enter into any
merger, consolidation, reorganization or recapitalization, or
reclassify its capital stock, or substantially change the nature
of its business as now conducted, except that (1) any wholly-owned
Subsidiary may merge with any other Subsidiary provided said
wholly-owned Subsidiary is the surviving entity, (2) any
Subsidiary may merge with the Borrower provided the Borrower is
the surviving entity, and (3) the Borrower and any wholly-owned
Subsidiary may make loans to, and contributions to the capital
of, and receive loans and dividends from, wholly-owned
Subsidiaries.
6.3 Sale of Assets. Sell, transfer, lease or otherwise
dispose of all or (except in the ordinary course of business as
now conducted) any material part of its assets.
6.4 Distributions. Declare or pay any dividends, or make
any other payment or distribution on account of its capital stock,
except that, subject to the satisfaction in full of the condition
precedent that the Agent and Lenders shall have received, prior
to any declaration or payment of cash dividends, the Borrower's
audited annual financial statements for the fiscal year, the
Borrower may declare and pay cash dividends for and in respect of
any fiscal year of the Borrower, in an amount not to exceed 30%
of its Net Profits for such fiscal year.
6.5 Capital Expenditures. Make any Capital Expenditure in
excess (on a consolidated basis) of: $14,500,000 in fiscal year
2001; and $12,000,000 in each fiscal year thereafter.
6.6 Stock. Redeem, purchase or retire any of its capital
stock, except that the Borrower may redeem, purchase or retire
shares of its capital stock with funds which could have been, but
were not, used for the payment of cash dividends pursuant to the
provisions of Section 6.3 of the Loan Agreement (subject to the
limitations therein set forth).
6.7 Margin Stock. Directly or indirectly apply any part
of the proceeds of any of the Loans to the purchasing or carrying
of any "margin stock" within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System, or any
regulations, interpretations or rulings thereunder.
6.8 Other Indebtedness. Incur, agree to incur, assume, or
in any manner become liable in respect of any Indebtedness for
Borrowed Money (recourse or nonrecourse) which shall cause their
Total Debt (including indebtedness evidenced by the Notes and the
Loan Agreement) to exceed $62,000,000.00. For the purposes of
this Section 6.8, any KCA debt which is nonrecourse to the
Borrower, including that portion subject to Borrower's Limited
Payment Guaranty, shall not be deemed to constitute indebtedness
of the Borrower or any Subsidiary. As used herein, "Borrower's
Limited Payment Guaranty" means any guaranty of the Borrower
guarantying payment of indebtedness of KCA relating to the
Kaahumanu Shopping Center.
6.9 Encumbrances. Hypothecate, pledge, mortgage, grant a
security interest in or otherwise encumber (or permit to be
encumbered) any of its assets now owned or hereafter acquired,
otherwise than in the ordinary course of the business of the
Borrower or such Subsidiary (for purposes of this Section 6.9,
encumbrances incurred or created in the ordinary course of
business shall be deemed to include (a) liens for taxes and
governmental (or quasi-governmental) assessments or similar
charges that are not yet due and payable, (b) pledges or deposits
to secure payment of workers' compensation or to participate in
any fund established under workers' compensation, unemployment
insurance, pensions or similar social security programs, (c)
liens of mechanics, materialmen, warehousemen, carriers or other
similar liens that are not yet due and payable, (d) good faith
pledges or deposits made to secure performance of bids, tenders,
contracts (other than for the repayment of borrowed money),
leases, statutory obligations, or surety, appeal, indemnity,
performance or similar bonds required in the ordinary course of
business, not exceeding at any one time outstanding $1,000,000
for all such pledges or deposits in the aggregate for the
Borrower and its Subsidiaries, (e) retained liens or security
instruments of equipment lessors on equipment leased under
equipment leases permitted by the Loan Agreement, and
(f) retained liens or security interests of equipment vendors or
equipment financing lenders with respect to equipment purchased
on time by the Borrower or its Subsidiaries.
VII. The Bank's Rights Upon Default
7.1 Events of Default. Each of the following events is
an "Event of Default" under this Agreement:
(a) The Borrower shall fail to pay when due any
principal or interest or fee or other charge payable under the
Loan Agreement or any of the Notes and such failure shall
continue for a period of five (5) Business Days.
(b) The Borrower or any Subsidiary shall fail to
observe or perform any other obligation to be observed or
performed by it under the Loan Agreement, any of the Notes or
other Loan Documents, and such failure shall continue for 30
days after: (1) notice of such failure from the Agent; or (2)
the Agent is notified of such failure or should have been so
notified pursuant to the provisions of Section 5.9 of the Loan
Agreement, whichever is earlier.
(c) Any financial statement, other statement,
representation, warranty or certificate made or furnished by
the Borrower or any Subsidiary to any of the Lenders or the
Agent in connection with the Loan Agreement, or as an
inducement to the Lenders or the Agent to enter into the Loan
Agreement, or in any separate statement or document delivered
pursuant to the provisions of the Loan Agreement, shall be
materially false, incorrect, or incomplete when made or
delivered.
(d) The Borrower or any Subsidiary shall admit its
inability to pay its debts as they mature, or shall make an
assignment for the benefit of any of its creditors.
(e) A decree or order for relief shall be entered
by a court having jurisdiction in respect of the Borrower or
any Subsidiary in an involuntary case under the federal
Bankruptcy Code or any other applicable federal or state
bankruptcy, insolvency or similar law, or a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) shall be appointed for the Borrower or any
Subsidiary or for any substantial part of its property, and
any such decree or order shall continue unstayed and in
effect for a period of 60 consecutive days.
(f) The Borrower or any Subsidiary shall commence
a voluntary case under the federal Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or similar
law, or the Borrower or any Subsidiary shall consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar
official) of the Borrower or any Subsidiary or any substantial
part of its property.
(g) The Borrower or any Subsidiary (i) shall have
failed to pay at its stated due date any Indebtedness for
Borrowed Money in excess of $1,000,000 in the aggregate (other
than indebtedness evidenced by the Notes) and such failure
shall have continued beyond any applicable grace period, or
(ii) shall have failed to observe or perform any term, covenant
or provision contained in any agreement or instrument (other
than the Loan Agreement or the Notes) by which it is bound,
evidencing or securing or otherwise relating to any Indebtedness
for Borrowed Money in excess of $1,000,000 in the aggregate, and
the effect thereof shall have been the acceleration of the
maturity of said indebtedness by the holder or holders thereof
or of any obligations issued in respect thereof or by a trustee
or trustees acting on behalf of such holder or holders.
(h) A final judgment which alone or with other
outstanding final judgments against the Borrower or any
Subsidiary exceeds $3,000,000 in the aggregate and (i) such
judgment shall not be discharged or fully bonded against within
60 days, or (ii) within 60 days after entry of such judgment,
execution shall not be stayed pending appeal, or (iii) such
judgment shall not be discharged within 60 days after expiration
of any such stay.
(i) Borrower or any Subsidiary fails to pay when due
any amount relating to any plan governed by ERISA.
7.2 The Bank's Rights. If an Event of Default shall occur,
the Bank shall have, in addition to any and all other rights and
remedies, legal or equitable, available to the Bank under any and
all of the Loan Documents or at law, the following additional
rights and remedies:
(a) The absolute right to deny to the Borrower any
further Loan or extension of credit (the Lender's obligation to
extend and further credit to the Borrower shall immediately
terminate);
(b) The right, at the option of the Lender, to declare,
without notice, the entire principal amount and accrued interest
for any Loan or extension of credit outstanding under this
Agreement, plus any fees and charges reasonably incurred by the
Agent, and/or the Lender, under any of the Loan Documents,
immediately due and payable;
(c) The right, at the option of the Lender, to charge
interest on any principal amount outstanding under this Agreement
at the rate one and one-half (1.5%) percentage points above the
otherwise applicable interest rate;
(d) The right to the ex parte appointment without
bond of a receiver, without regard to the value of any Collateral
or solvency of any party liable for payment, observance or
performance of the Obligations and regardless of whether the Bank
has an adequate remedy a law; and
(e) The Agent and the Lenders may exercise any and all
other rights and remedies, legal or equitable, available to the
Agent and/or the Lenders under the Notes and under any and all of
the other Loan Documents or at law or in equity.
VIII. Miscellaneous
8.1 Further Assurance. From time to time within five
Business Days after the Bank's demand, the Borrower will execute
and deliver such additional documents and provide such additional
information as may be reasonably requested by the Bank to carry
out the intent of this Agreement.
8.2 Appraisals. The Lenders reserve the right to obtain at
the Borrower's expense (and the Borrower agrees to pay all
reasonable costs of) appraisals of the Mortgaged Properties, from
any licensed or certified appraiser designated by the Lenders, from
time to time, whenever such appraisals may be (a) required by any
law, rule or regulation applicable to the conduct of any Lender's
business, (b) requested or directed by any governmental authority
charged with the administration of such law, rule or regulation
or any Lender's compliance therewith, whether or not such request
or direction has the force of law, or (c) when reasonably deemed
appropriate by the Lenders in their sole discretion (reappraisals
referred to in this clause (c) shall not be required more
frequently than annually).
8.3 Enforcement and Waiver by the Bank. The Lenders, or
the Agent on behalf of the Lenders, shall have the right at all
times to enforce the provisions of the Loan Documents, as they
may be amended from time to time, in strict accordance with their
respective terms, notwithstanding any conduct or custom on the
part of any of the Lenders or the Agent in refraining from so
doing at any time or times. The failure of the Lenders or the
Agent at any time or times to enforce their rights under such
provisions, strictly in accordance with the same, shall not be
construed as having created a custom in any way or manner
contrary to specific provisions of the Loan Documents or as
having in any way or manner modified or waived the same. No
single or partial exercise of any right by any Lender or the
Agent shall preclude the further or other exercise thereof. All
rights and remedies of the Lenders and Agent are cumulative and
concurrent and the exercise of one right or remedy shall not be
deemed a waiver or release of any other right or remedy.
8.4 Expenses of the Lender and Agent. The Borrower will,
on demand, reimburse to the Agent all reasonable expenses,
including the reasonable fees and expenses of legal counsel for
the Agent, incurred by the Agent (whether as Agent or Lender)
in connection with the negotiation, preparation, administration,
amendment, modification, waiver, and/or enforcement of the Loan
Documents and the collection or attempted collection of the
indebtedness evidenced by the Loan Documents, or any of them
including but not limited to bankruptcy or reorganization
proceedings. The Borrower will, on demand, reimburse to the
Lenders all reasonable expenses, including the reasonable fees
and expenses of legal counsel for the Lenders, incurred by any
of the Lenders in connection with the enforcement of the Loan
Documents and the collection or attempted collection of the
indebtedness evidenced by the Loan Documents, or any of them
including but not limited to bankruptcy or reorganization
proceedings.
8.5 Notices.
Any notices or consents required or permitted by this Loan
Agreement or the other Loan Documents shall be in writing and may
be delivered in person or sent by United States mail or by
telecopy and shall be deemed delivered when delivered in person
or when deposited in the United States mail, certified, postage
pre-paid, return receipt requested, or when sent during normal
business hours at the place of receipt and the receipt of which
is confirmed in writing if by telecopy, to the address of the
parties as follows, unless such address is changed by written
notice hereunder:
(A) If to the Borrower:
MAUI LAND & PINEAPPLE COMPANY, INC.
ATTN: Xx. Xxxx X. Xxxxx
Executive Vice President/Finance
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
PHONE: (000) 000-0000
FAX: (000) 000-0000
(B) If to the Lenders, in care of the Agent:
BANK OF HAWAII
ATTN: Mr. Xxxxx Xxxx, Vice President
Corporate Banking Division
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
PHONE: (000) 000-0000
FAX: (000) 000-0000
8.6 Waiver and Release by the Borrower. To the maximum extent
permitted by applicable law, the Borrower (and each of them, if
more than one):
(a) Waives notice and opportunity to be heard, after
acceleration of the indebtedness evidenced by the Loan Documents,
before exercise by the Bank of the remedy of setoff or of any
other remedy or procedure permitted by any applicable law or by
any prior agreement with the Borrower, and, except where
specifically required by this Agreement or by any applicable law,
notice of any other action taken by the Bank;
(b) Waives presentment, demand for payment, notice of
dishonor, and any and all other notices or demands in connection
with the delivery, acceptance, performance, or enforcement of this
Agreement, and consents to any extension of time (and even
multiple extensions of time for longer than the original term),
renewals, releases of any person or organization liable for the
payment of the Obligations under this Agreement, and waivers or
modifications or other indulgences that may be granted or
consented to by the Bank in respect of the Loans and other
extensions of credit evidenced by this Agreement; and
(c) Releases the Bank and its officers, agents, and
employees from all claims for loss or damage caused by any act or
omission on the part of any of them except willful misconduct.
8.7 Disclosure of Information. The Borrower consents to the
Agent's or any Lender's disclosure to the other Lenders or the
Agent of any information held by the disclosing entity from time
to time, financial or otherwise, pertaining in any way to the
creditworthiness or other condition of the Borrower or any
Subsidiary. The Agent and Lenders agree that they shall maintain
confidentiality with regard to nonpublic information concerning
the Borrower and Subsidiaries obtained from the Borrower,
provided that the Agent and Lenders shall not be precluded from
making disclosure regarding such information: (a) on a
confidential basis, to their own respective counsel, accountants
and other professional advisors, (b) in response to a subpoena or
order of a court of governmental agency, (c) on a confidential
basis, to any entity participating or considering participating
in any credit made under this Loan Agreement, (d) on a
confidential basis to any guarantor or subordinated lender with
respect to this Loan Agreement or (e) as required by law or
applicable regulation.
8.8 Applicable Law. The substantive laws of the State of
Hawaii shall govern the construction of this Agreement and the
Notes and the rights and remedies of the parties hereto and thereto.
8.9 Binding Effect. This Agreement shall inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns, and shall be
binding on the parties hereto and their respective heirs,
personal representatives, successors and assigns.
8.10 Merger. This Agreement and the remainder of the Loan
Documents constitute the full and complete agreement between the
Bank and the Borrower with respect to the Term Loan and Revolving
Credit Facility, and all prior oral and written agreements,
commitments, and undertakings shall be deemed to have been merged
into the Loan Documents and such prior oral and written
agreements, commitments, and undertakings shall have no further
force or effect except to the extent expressly incorporated in
the Loan Documents.
8.11 Amendments; Consents. No amendment, modification,
supplement, termination, or waiver or forbearance of any
provision of this Loan Agreement or any of the other Loan
Documents, and no consent to any departure by the Borrower
therefrom, may in any event be effective unless in writing signed
(a) by a Majority in Interest of the Lenders and the
Agent, or
(b) by all of the Lenders and the Agent, in the case
of any action that has the effect of: increasing the Aggregate
Commitment; changing (except in accordance with the provisions of
the Loan Agreement) the Applicable Margin or fees payable to
Lenders under the Loan Documents; altering the scheduled maturity
or time of payment of principal, interest or fees payable under
the Loan Documents; or modifying or releasing any collateral for
the Loans, and then only in the specific instance and for the
specific purpose given.
8.12 Assignments.
(a) The Borrower shall have no right to assign any of
its rights or obligations under the Loan Documents without the
prior written consent of the Lender.
(b) None of the Lenders shall assign any of its
rights or obligations under the Loan Documents without the prior
written consent of the Borrower, which consent shall not be
unreasonably withheld or delayed; provided, however, the foregoing
provision to the contrary notwithstanding, (a) any of the Lenders
may sell participations in Loans made or to be made by it, to any
entity affiliated with such Lender, without Borrower's consent, so
long as such Lender remains primarily obligated to the Borrower
under this Loan Agreement and so long as the Borrower shall not be
obligated in any manner to deal directly with the affiliated
purchaser of such participation, and (b) any Lender may
negotiate, pledge, transfer or assign the Notes held by it (or
the receivable evidenced thereby) to a Federal Reserve Bank or to
any other agency or instrumentality of the United States of
America to support borrowings of Federal funds by such Lender.
(c) Subject to the foregoing restrictions, the Borrower
consents to each Lender's negotiation, offer, and sale to third
parties ("Participants") of the Credit Facility or participating
interests in the Credit Facility, to any and all discussions and
agreements heretofore or hereafter made between each Lender and
any Participant or prospective Participant regarding the interest
rate, fees, and other terms and provisions applicable to the
Credit Facility, and to each Lender's disclosure to any
Participant or prospective Participant, from time to time, of
such financial and other information pertaining to the Borrower
and the Credit Facility as any Lender and such Participant or
prospective Participant may deem appropriate (whether public or
non-public, confidential or non-confidential, and including
information relating to any insurance required to be carried by
the Borrower and any financial or other information bearing on
the Borrower's creditworthiness and the value of any collateral).
The Borrower acknowledges that the Lenders' disclosure of such
information to any Participant or prospective Participant
constitutes an ordinary and necessary part of the process of
effectuating and servicing the Credit Facility.
8.13 Severability. If any provision of any of the Loan
Documents shall be held invalid under any applicable law, such
invalidity shall not affect any other provision of the Loan
Documents that can be given effect without the invalid provision,
and, to this end, the provisions of the Loan Documents are
severable.
8.14 Release of Non-Golf Areas. In view of the fact that
the portion of the property subject to the Mortgage and the
Additional Security Mortgage, commonly known as the Bay Golf
Course (or the Bay Course) and Village Golf Course (or the
Village Course), has not been duly subdivided so as to constitute
one or more duly subdivided lots, the land descriptions of the
Bay Course and Village Course set forth or to be set forth in the
Mortgage and Additional Security Mortgage (the "Mortgages"),
include lands ("Excess Lands") in excess of the lands commonly
known to comprise the Bay Course and Village Course. The Lenders
agree that the Borrower shall have the right to subdivide the
lands initially described in the Mortgages as comprising the Bay
Course and Village Course, and to obtain releases of the Excess
Lands from the liens of the Mortgages, upon the following terms
and conditions: (a) the lot or lots to be released from the
Mortgages, comprising the Excess Lands, as well as the lot or
lots which are to remain subject to the Mortgages following the
release of the Excess Lands, shall have been designated as
specific lots approved by all governmental authorities having
jurisdiction over the subdivision thereof; (b) the costs of
subdivision and the costs of preparing the releases shall be
borne by the Borrower; (c) the form and content of each release
shall be acceptable to the Lenders; and (d) in connection with
any such release, appropriate provisions shall have been made for
access to and from, and utility and similar easements for, any
lot or lots not to be released from the Mortgages. Within thirty
days after the Lenders' declaration of an Event of Default and of
their intention to foreclose the Mortgages, the Borrower shall
commence, and thereafter diligently pursue to completion, any
subdivision necessary to accomplish the purposes of this
Section 8.14, so as to enable the Lenders to foreclose the
Mortgages against all the Collateral, while releasing to the
Borrower the Excess Lands. In the event the Borrower shall not
commence such subdivision within said thirty-day period, or
thereafter diligently pursue the subdivision to completion, the
Lenders shall be entitled at the Borrower's expense, and are
hereby appointed as the duly-appointed attorneys-in-fact of the
Borrower (with full power of substitution), to commence and/or
complete said subdivision. Said power of attorney is coupled
with an interest, and is irrevocable.
8.15 The Bank's Right of Setoff; Security Interest in
Accounts. Each Lender may set off obligations owed by the Lender
to the Borrower (such as balances in checking and savings accounts)
against the Obligations, without first resorting to other
Collateral, if an Event of Default shall have occurred or shall
have been declared or if any such obligations owed by the Lender
to the Borrower shall be seized or levied upon under any legal
process or under any claim of legal right. To secure the
Obligations, the Borrower grants to the Agent or Lender a
security interest in all checking, savings, and other deposit
accounts now or hereafter maintained by the Borrower with the
Agent or Lender.
8.16 Time is of the Essence. Time is of the essence under
and in respect of this Agreement.
8.17 Joint and Several Liability. If more than one Borrower
has signed this Agreement, all Borrowers shall be liable under
this Agreement jointly, and each of them severally, for the
payment, observance, and performance of all of the Obligations.
8.18 Headings. The headings of the various provisions of
this Agreement are inserted for convenience of reference only and
shall not affect the meaning or construction of any provision.
8.19 Survival of Certain Payment Obligations. The obligations
of the Borrower to indemnify the Lenders against, and pay and
reimburse to the Lenders, the costs and expenses referred to in
Section 8.4 of the Loan Agreement (a) shall survive the repayment
of the Loans and termination of the Loan Agreement to the extent
such losses, costs and expenses are specifically billed to the
Borrower within 60 days after full repayment of the Loans and
termination of this Agreement, and (b) shall not survive the
repayment of the Loans and termination of the Loan Agreement to
the extent of any such costs or expenses which are not
specifically billed to the Borrower within 60 days after full
repayment of the Loans and termination of the Loan Agreement.
8.20 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original instrument and
all of which shall together constitute one and the same
agreement.
8.21 Dispute Resolution. Any controversy or claim arising
out of or relating to the Loan Agreement or any of the other Loan
Documents shall, at the request of either party, be decided by
binding arbitration conducted in the State of Hawaii without a
judge or jury, under the auspices of the Commercial Arbitration
Rules of the American Arbitration Association in accordance with
Chapter 658 of the Hawaii Revised Statutes and the applicable
rules of the aforementioned organization. The arbitrator will
apply any applicable statute of limitations and will determine
any controversy concerning whether an issue is arbitrable.
Judgment upon the arbitration award may be entered in any court
having jurisdiction. The prevailing party will be entitled to
recover its reasonable attorneys' fees and costs as determined by
the arbitrator. This agreement to arbitrate shall not limit or
restrict the right, if any, of any party to exercise before,
during or following any arbitration proceeding, with respect to
any claim or controversy, self-help remedies such as setoff, to
foreclose a mortgage or lien or other security interest in any
Collateral judicially or by power of sale, or to obtain
provisional or ancillary remedies such as injunctive relief from
a court having jurisdiction. Either party may seek those
remedies without waiving its right to submit the controversy or
claim in question to arbitration.
8.22 Termination of Village Course Facility. The Village
Course Facility (as defined in the Second Restatement) is hereby
terminated.
8.23 Consent to Assignment to PCA. Borrower consents to the
assignment of interests in the Credit Facility and under the Loan
Document, including, without limitation, the Environmental
Indemnity, to PCA.
IX. Definitions
9.1 Additional Security Mortgage means the Additional Security
Mortgage and Security Agreement dated March 1, 1993, made by
Kapalua Land Company, Ltd. and recorded in the Bureau of
Conveyances of the State of Hawaii as Document No. 93-036900, as
originally executed or thereafter modified.
9.2 Agency Agreement means the Agency Agreement dated as of
March 1, 1993, among Original Lenders and the Agent, authorizing
the Agent to act as agent in respect of the Loans, as amended and
restated by Amended and Second Restated Agency Agreement of even
date herewith by and among Lenders and Agent, as the same may be
further amended from time to time.
9.3 Aggregate Loan Commitment shall have the meaning given
in Section 1.1(a)
9.4 Applicable Margin shall have the meaning given in Section
1.6(a).
9.5 Base Rate means the primary index rate established from
time to time by Bank of Hawaii in the ordinary course of its
business and with due consideration of the money market, and
published by intrabank memoranda for the guidance of its loan
officers in pricing all of its loans which float with the Base Rate.
9.6 Base Rate Loan means any Loan for which interest is
calculated on the basis of the Base Rate.
9.7 Business Day means any day on which the main branch of
Bank of Hawaii, in Honolulu, Hawaii, is open for business and, with
respect to any LIBOR Loan, a day on which the main branch of Bank
of Hawaii, in Honolulu, Hawaii, and commercial banks in New York
City are open for business.
9.8 Capital Expenditures means all expenditures that, in
accordance with GAAP, should be capitalized on the accounting
records of the Borrower and its Subsidiaries.
9.9 Collateral shall have the meaning given in Section 1.3
9.10 Confirmations of Mortgage means the confirmation of the
Mortgage of even date herewith by and between Borrower and
Lenders and the confirmation of the Additional Security Mortgage
of even date herewith by and between Kapalua Land Company, Ltd.
and Lenders.
9.11 Conversion Date shall have the meaning provided in
Section 1.5.
9.12 Debt Service means, for the applicable period, the sum
of interest expense and scheduled principal payments made,
exclusive of payments made in connection with the Village Course
Facility (as defined in the Second Restatement).
9.13 Debt Service Coverage Ratio shall mean the ratio of
Operating Cash Flow to Debt Service, in each case for the 12
months preceding the date of determination.
9.14 Effective Date shall have the meaning assigned thereto
in Section 3.2 hereof.
9.15 Environmental Indemnification Agreement means the
Environmental Indemnification Agreement, dated March 1, 1993,
made by the Borrower in favor of Original Lenders, as amended
from time to time.
9.16 Event of Default shall have the meaning given in Section
7.1.
9.17 Expiry Date means December 31, 2003.
9.18 Financial Statements means the consolidated balance
sheets of the Borrower and its Subsidiaries and consolidated
statements of income and retained earnings of the Borrower and
its Subsidiaries and other financial statements (a) heretofore
furnished to the Lenders, or any of them, and (b) to be furnished
to the Lenders pursuant to the provisions of this Loan Agreement.
9.19 GAAP shall have the meaning given in Section 4.6.
9.20 Indebtedness for Borrowed Money means any indebtedness
or obligation or liability to repay borrowed monies, whether
matured or unmatured, liquidated or unliquidated, direct or
contingent, joint or several, including, without limitation, all
such indebtedness guaranteed, directly or indirectly, in any
manner, or endorsed (other than for collection or deposit in the
ordinary course of business) or discounted with recourse.
9.21 Individual Loan Commitment means:
(a) In respect of BOH, $9,000,000;
(b) In respect of FHB, $6,000,000;
(c) In respect of CPB, $4,000,000; and
(d) In respect of PCA, $6,000,000.
9.22 Individual Loan Commitment Percentage means, in
respect of BOH, 36.0000000%; in respect of FHB 24.0000000%; in
respect of CPB 16.0000000%; and in respect of PCA 24.0000000%.
9.23 Interest Period means the period commencing on the
Business Day on which a LIBOR Loan is disbursed, rolled over or
converted from another pricing option, and ending on the date
one, two, three or six months thereafter, as selected by the
Borrower in its Notice of Loan/Conversion in respect of LIBOR
Loans; provided that if such ending date is not a Business Day,
such ending date shall be deemed to be the next succeeding
Business Day unless such next succeeding Business Day falls in a
new calendar month, in which case the ending date shall be the next
preceding Business Day. No Interest Period for a Revolving Loan
shall extend beyond the Expiry Date. No Interest Period for a
Term Loan shall extend beyond the Maturity Date.
9.24 Investments means all expenditures by the Borrower and
its Subsidiaries, not reflected as Capital Expenditures in the
Financial Statements, made for the purpose of acquiring,
increasing or supplementing equity interests of any nature in
partnerships, joint ventures, corporations, trusts, associations
or other business entities, or in real property of any kind, and
reflected as Investments in the Financial Statements.
9.25 KCA means Kaahumanu Center Associates, a Hawaii limited
partnership which is organized between the Borrower, as general
partner, and the State of Hawaii Employee Retirement System, as
limited partner, for the purpose of acquiring, expanding and
operating the Kaahumanu Shopping Center complex.
9.26 Laws means all ordinances, statutes, rules, regulations,
orders, injunctions, writs or decrees of any government or
political subdivision or agency thereof, or any court or similar
entity established by any thereof.
9.27 Lenders is defined in the preamble of this Amendment and
Restatement.
9.28 LIBOR means the reserve-adjusted rate of interest per
annum, rounded upward if necessary, to the nearest four decimal
places, at which U.S. dollar deposits in immediately available
funds are offered to major banks in the interbank market at 11:00
a.m. New York time three Business Days prior to the commencement
of an Interest Period. The Bank shall establish LIBOR for each
Interest Period based on offered rates as reported by reporting
services generally used by the Bank. Rates are quoted based on
both the Interest Period and the amount of Loan requested by the
Borrower. Such rate shall incorporate the following adjustment
for any reserve requirements relative to dollar deposits, placed
on the Bank by any regulatory body:
LIBOR (Unadjusted)
LIBOR (Reserve Adjusted) = (100% - LIBOR Reserve Requirement)
The Bank's determination of LIBOR shall be binding and
conclusive upon the Borrower absent manifest error.
9.29 LIBOR Loan means any Loan for which interest is
calculated on the basis of LIBOR.
9.30 LIBOR Reserve Requirement means the then maximum
effective rate per annum (expressed as a percentage), as
determined solely by the Bank, of reserve requirements imposed by
any regulatory body (such as those pursuant to Regulation D of
the Board of Governors of the Federal Reserve System) on
eurocurrency liabilities of U.S. banks having a term to maturity
equal to the applicable Interest Period; and as adjusted by the
Bank for changes or scheduled changes in such percentage during
the applicable Interest Period.
9.31 Loan Agreement means the Original Loan Agreement, as
amended aforesaid and by this Amendment and Restatement and any
further amendments, modifications, extensions or renewals thereof.
9.32 Loans means the Revolving Loans and the Term Loans.
9.33 Loan Documents shall have the meaning given in Section
1.7.
9.34 Maintenance Capital Expenditures shall mean Capital
Expenditures made to replace worn out or obsolete assets used by
Borrower and the Subsidiaries in the normal course of their
business.
9.35 Majority in Interest of the Lenders means Lenders
holding 66.67% of the aggregate principal amount of the Loans
then outstanding hereunder (or if no Loans are at the time
outstanding, Lenders having 66.67% of the Aggregate Loan
Commitment).
9.36 Maturity Date means December 31, 2006.
9.37 Mortgage means, collectively, the Mortgage and Security
Agreement dated March 1, 1993, made by the Borrower, as
Mortgagor, in favor of the Lenders, as Mortgagees, recorded in
said Bureau as Document No. 93-036896 and that certain Mortgage
and Security Agreement made by Borrower, as Mortgagor, in favor
of Lenders, as Mortgagees, recorded in said Bureau as Document
No. 93-036898, as the same were originally executed and as
thereafter amended or modified.
9.38 Net Profits means, for any fiscal year, the
consolidated, after-tax net profits of the Borrower and its
Subsidiaries for such year, determined in accordance with GAAP.
9.39 Net Worth means the consolidated net worth of Borrower
and the Subsidiaries, as shown in their most recent Financial
Statements, less any goodwill or debt discounts carried as assets
on such Financial Statements, trademarks, patents, copyrights,
organizational expenses and other similar intangible items,
exclusive of predevelopment costs which will be allocated to
future projects.
9.40 Notes shall have the meaning given in Section 1.7 and
shall include any modifications, renewals or modifications thereof.
9.41 Notice of Loan/Conversion shall mean a written notice in
the form attached as Exhibit A.
9.42 Obligations shall have the meaning given in Section 1.8.
9.43 Operating Cash Flow shall mean the consolidated net
income of the Borrower and its Subsidiaries plus the sum of
(i) depreciation and amortization, (ii) interest expense,
(iii) equity losses in joint ventures, and (iv) losses on asset
dispositions; less the sum of (v) equity earning in joint
ventures, (vi) Maintenance Capital Expenditures, and
(vii) dividends paid; plus (viii) the net sum of actual
distributions and contributions from or to joint ventures
(without duplication).
9.44 Participants shall have the meaning given in Section
8.12.
9.45 Payment Office shall mean Bank of Hawaii, Corporate
Banking Division, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx XX
00000.
9.46 Person means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated
organization, joint venture, court or government or political
subdivision or agency thereof.
9.47 Recourse Debt means, as to the Borrower or any
Subsidiary, all items of indebtedness, obligation or liability
for borrowed funds, whether now existing or hereafter incurred,
matured or unmatured, direct or contingent, joint or several,
including, but without limitation:
(a) All indebtedness for borrowed money guaranteed,
directly or indirectly, in any manner, or endorsed (other than
for collection or deposit in the ordinary course of business) or
discounted with recourse;
(b) All indebtedness for borrowed money in effect
guaranteed, directly or indirectly, through agreements,
contingent or otherwise: (1) to purchase such indebtedness; or
(2) to purchase, sell or lease (as lessee or lessor) property,
products, materials or supplies or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment
of such indebtedness or to assure the owner of the indebtedness
against loss; or (3) to supply funds to or in any other manner
invest in the debtor; and
(c) All indebtedness for borrowed money secured by
(or for which the holder of such indebtedness has a right,
contingent or otherwise, to be secured by) any mortgage, deed
of trust, pledge, lien, security interest or other charge or
encumbrance on property owned or acquired subject thereto,
whether or not the liabilities secured thereby have been
assumed; provided, however, the foregoing provisions to the
contrary notwithstanding, Nonrecourse Secured Debt shall not
be considered Recourse Debt. For this purpose "Nonrecourse
Secured Debt" means all items of indebtedness incurred by the
Borrower or a Subsidiary for borrowed money, now existing or
hereafter arising, secured by real or personal collateral and
in respect of which the sole recourse of the holder of the debt
instrument for payment of the indebtedness evidenced thereby
is against the collateral for such indebtedness, and not against
the obligor individually or the obligor's other assets.
9.48 Revolving Loans shall have the meaning given in
Section 1.1(a).
9.49 Revolving Loan Period shall have the meaning given in
Section 1.1(a).
9.50 Subsidiary means any corporation of which more than 50%
of the outstanding voting securities having ordinary voting power
to elect a majority of the Board of Directors of such corporation
shall, at the time of determination, be owned directly, or
indirectly through one or more Subsidiaries, by the Borrower. A
list of the currently-existing Subsidiaries is attached hereto as
Exhibit C.
9.51 Term Loan has the meaning given to it in Section 1.1(b).
9.52 Total Debt means, as to the Borrower and all
Subsidiaries, on a consolidated basis, all Indebtedness for
Borrowed Money, including, without limitation, all Recourse Debt
and Nonrecourse Secured Debt, plus all lease obligations which are
capitalized on the Borrower's and/or Subsidiaries, balance sheets
in accordance with generally accepted accounting principles.
9.53 Type of Loan shall refer either to a Base Rate Loan or a
LIBOR Loan, as defined herein.
X. Amendment and Restatement; Amendment of Loan Documents
10.1 Effect of Amendment. On and as of the Effective Date, the
Original Loan Agreement shall be deemed amended and restated in
its entirety by this Amendment and Restatement, which shall
supercede the terms and provisions of the Original Loan
Agreement, as previously amended, with respect to all obligations
from and after the date of this Amendment and Restatement and the
other Loan Documents shall be deemed amended to conform to the
amendments effected by this Amendment and Restatement. The
Borrower, the Lenders and the Agent acknowledge and agree that
this Amendment and Restatement constitutes only an amendment and
restatement of the Original Loan Agreement, and in connection
therewith, (1) nothing herein is intended, nor shall it be
construed, to constitute a refinancing of the indebtedness under
the Original Loan Agreement, (2) all outstanding obligations
under the Original Loan Agreement and the "Loan Documents"
referred to therein, as amended, shall continue to be outstanding
under this Amendment and Restatement and the Loan Documents
referred to herein and (3) all Obligations owing from and after
the Effective Date shall be paid, performed and observed in
accordance with the terms of this Amendment and Restatement and
the other Loan Documents, as so amended restated and as may be
further amended from time to time.
10.2 Amendment of Loan Documents. The Borrower, the Lenders
and the Agent agree that from and after the Effective Date, all
references to (1) the Original Loan Agreement (including, without
limitation, references to "Revolving and Term Loan Agreement",
the "Loan Agreement" or "Agreement" or other defined terms) set
forth in the Notes, the Mortgage, the Environmental Indemnity
Agreement, the Additional Security Mortgage and any other Loan
Documents, as amended, shall mean the Original Loan Agreement, as
amended and restated aforesaid and by this Amendment and
Restatement and as may be further amended from time to time, and
(2) the Notes, or any of them, shall mean the Note, and (3) any
of the other Loan Documents shall mean such Loan Documents, as
heretofore amended, as amended and restated by this Amendment and
Restatement and as may be further amended from time to time.
10.3 Confirmation of Loan Documents. In all other respects,
the Loan Documents, as amended, remain in full force and effect
and the provisions of the Loan Documents including, without
limitation, all promises, representations, warranties, covenants,
and conditions, are ratified and confirmed as of the date of this
Amendment and Restatement by the parties hereto.
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent
have duly executed this Amendment and Restatement, the execution
of this Amendment and Restatement by the Borrower constituting
(a) the personal certification of the persons signing this
Amendment and Restatement on behalf of the Borrower that, to the
best of their knowledge, the representations and warranties made
in Article IV of the Loan Agreement are true and correct as of
the date of this Amendment and Restatement, and (b) the
undertaking of such persons and of the Borrower that each request
for a disbursement of Loan proceeds, made pursuant to Section 1.4
of the Loan Agreement, shall constitute the Borrower's
affirmation and the personal affirmation on the part of the
persons making such request that, to the best of their knowledge
at the time of the making of any such request, (i) the
representations and warranties stated in Article IV of the Loan
Agreement are true and correct, (ii) no Event of Default under
the Loan Agreement has occurred and is continuing, and (iii) no
event has occurred and is continuing that, with the giving of
notice or passage of time, or both, would become such an Event of
Default.
MAUI LAND & PINEAPPLE BANK OF HAWAII
COMPANY, INC.
By/S/XXXXX X. XXXX
By/S/XXXX X. XXXXX Xxxxx X. Xxxx
Xxxx X. Xxxxx Its Vice President
Its Executive Vice President/
Finance
By/S/XXXXX X. XXXXXX FIRST HAWAIIAN BANK
Xxxxx X. Xxxxxx
Its Controller By:/S/XXXXX X. XXXXXXXX
(Borrower) Xxxxx X. Xxxxxxxx
Its Senior Vice President
BANK OF HAWAII
By/S/XXXXX X. XXXX CENTRAL PACIFIC BANK
Xxxxx X. Xxxx
Its Vice President By:/S/XXXXXX X. XXXXXXXX
(Agent) Xxxxxx X. Xxxxxxxx
Its Vice President
AMERICAN AGCREDIT, PCA
By/S/XXXX VAN SCHUYVER
Xxxx Van Schuyver
Its Vice President
(Lenders)
EXHIBIT A
Notice of Loan/Conversion
DATE: ________________________
TO: Mr. Xxxxx Xxxx, Vice President
Bank of Hawaii
Corporate Banking Division
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
FAX: (000) 000-0000
SUBJECT: Revolving and Term Loan Agreement, dated as of December
31, 1992, by and among MAUI LAND & PINEAPPLE COMPANY,
INC. ("Borrower"), Bank of Hawaii, First Hawaiian Bank,
Central Pacific Bank and Bank of America National Trust
and Savings Association, as amended, inter alia, by
Amended and Third Restated Revolving Credit and Term
Loan Agreement by and among Borrower, Bank of Hawaii,
First Hawaiian Bank, Central Pacific Bank and American
AgCredit, PCA (the "Agreement")
Pursuant to Section 1.4 or Section 1.5 of the Agreement, the
Borrower hereby requests a Loan under the Credit Facility or a
conversion of an existing Loan under the Credit Facility and
confirms the following instructions therefor (capitalized terms
not defined herein shall have the respective meanings assigned
in the Agreement):
Requested Date:
Principal Amount:
Base Rate Loan New Revolving Loan
LIBOR Loan LIBOR Rollover
Conversion from Base Rate to LIBOR
Loan
Conversion from LIBOR to Base Rate
Loan
Interest Period (LIBOR Loans): ____One ___Two ___Three ___Six
months
METHOD OF DRAWING (New Revolving Loan)
Credit to the Borrower's Deposit Account No. 00000000
maintained with Bank of Hawaii.
The Borrower hereby certifies as follows:
1. The representations and warranties set forth in Section IV
of the Agreement are true and correct on and as of the date
hereto, provided that the representations and warranties set
forth in Section 4.6 of the Agreement shall be deemed to be made
with respect to the Financial Statements most recently delivered
to the Bank pursuant to the Agreement.
2. As of the date hereof, no event has occurred and is
continuing that (a) constitutes an Event of Default under the
Agreement, or (b) with the giving of notice or passage of time,
or both, would constitute an Event of Default.
3. The Borrower has observed and performed all of the
Borrower's covenants and other agreements, and satisfied every
condition, contained in the Agreement and in the other Loan
Documents, to be observed, performed or satisfied by the
Borrower.
MAUI LAND & PINEAPPLE COMPANY,
INC.
By_____________________________
___
Its
BORROWER
Exhibit B
Master Note
$________ Honolulu, Hawaii
December ____, 2001
The undersigned ("Borrower") promises to pay to the order of
_________ ("Lender") the principal amount of $_________ or so
much thereof as shall have been disbursed by Lender under the
Credit Facility (to which reference is hereinafter made) and may
remain outstanding, together with interest on outstanding
balances of principal in accordance with and under the terms of
that certain Revolving and Term Loan Agreement, dated as of
December 31, 1992 (the "Original Loan Agreement"), by and among
Borrower, Bank of Hawaii, First Hawaiian Bank, Central Pacific
Bank and Bank of America National Trust and Savings Association,
which Original Loan Agreement established a credit facility (the
"Credit Facility") in the original principal amount of
$40,000,000.00, as amended by, among other instruments, that
certain Amended and Third Restated Revolving Credit and Term Loan
Agreement of even date, by and among Borrower, Bank of Hawaii,
First Hawaiian Bank, Central Pacific Bank and American AgCredit,
PCA, and as the same may from time to time be further amended.
MAUI LAND & PINEAPPLE COMPANY,
INC.
By_____________________________
___
Its
By_____________________________
___
Its
BORROWER
EXHIBIT C
SUBSIDIARY LISTING
Maui Pineapple Company, Ltd.
Kapalua Land Company, Ltd.
Kapalua Water Company, Ltd.
Kapalua Waste Treatment Company, Ltd.
Honolua Plantation Land Company, Inc.
Kapalua Advertising Company, Ltd.
Kapalua Investment Company, Ltd.
Kapalua Realty Company, Ltd.
Royal Coast Tropical Fruit Company, Inc.
Costa Royal De Frutas Tropicales XX
Xxxxx Royal De Panama SA
Pineapple Hill Estates LLC
Schedule 5.3
Compliance Certificate
DATE: __________________________
TO: Bank of Hawaii
Attn: Mr. Xxxxx Xxxx, Vice President
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 000000
Telecopier No.: (000) 000-0000
SUBJECT: Revolving and Term Loan Agreement, dated as of December
31, 1992, by and among MAUI LAND & PINEAPPLE COMPANY,
INC. ("Borrower"), Bank of Hawaii, First Hawaiian Bank,
Central Pacific Bank and Bank of America National Trust
and Savings Association, as amended, inter alia, by
Amended and Third Restated Revolving Credit and Term
Loan Agreement by and among Borrower, Bank of Hawaii,
First Hawaiian Bank, Central Pacific Bank and American
AgCredit, PCA (the "Agreement")
Pursuant to Section 5.3(f) of the Agreement, the undersigned
hereby certifies as follows (capitalized terms not defined herein
shall have the respective meanings assigned in the Agreement):
1. The undersigned is the President/ chief financial officer
of Borrower.
2. The information furnished in Attachment A hereto is true and
correct as the last day of the fiscal quarter preceding the date
of this Compliance Certificate.
3. The representations and warranties set forth in Section IV
of the Agreement are true and correct on and as of the date
hereto, provided that the representations and warranties set
forth in Section 4.6 of the Agreement shall be deemed to be made
with respect to the financial statements delivered to the Bank
concurrently herewith pursuant to the Agreement.
4. As of the date hereof, no event has occurred and is
continuing that (a) constitutes an Event of Default under the
Agreement, or (b) with the giving of notice or passage of time,
or both, would constitute an Event of Default. The Borrower has
observed and performed all of the Borrower's covenants and other
agreements, and satisfied every condition, contained in the
Agreement and in the other Loan Documents, to be observed,
performed or satisfied by the Borrower.
_______________________________
Attachment A
To Compliance Certificate
Dated ___________
DEBT SERVICE COVERAGE RATIO
Required Minimum: 1.20
RECOURSE DEBT $
NET WORTH $
Required Minimum: $60,100,000 plus
$___________ (50% of cumulative Net
Profits (but not net losses) after
December 31, 1998)
RECOURSE DEBT TO NET WORTH RATIO
Permitted Maximum: 1.10
