LOAN AGREEMENT
between
PACIFIC COAST FARM CREDIT SERVICES, ACA
and
MAUI LAND & PINEAPPLE COMPANY, INC.
Loan No. _________
April 18, 1997
TABLE OF CONTENTS
Page
1.Definitions 1
2.The Loan. 7
3.Conditions Precedent. 7
a. Required Documents. 7
b. Approvals. 7
c. Event of Default. 7
d. Loan Fee. 7
e. Subordination Agreements. 7
f. Continuing Guaranty Agreements. 7
4. Revolving Portion of Loan -- Tranche A. 8
a. Purpose of Tranche A. 8
b. Advances. 8
c. Additional Documentation. 8
d. Maximum Amount of Tranche A. 8
e. Limitation on Advances; Maturity Date. 9
f. Borrower's Option to Extend Tranche A. 9
5. Term Portion of Loan -- Tranche B. 9
a. Conversion of Tranche A Obligations to Tranche B. 9
b. Making of Tranche B Election. 10
c. Repayment of Principal. 10
6. Interest. 10
a. Definitions. 10
b. Interest on Tranche A 12
(1) Alternate Base Rate. 12
(2) Fixed Rate for Tranche A. 12
(3) Adjustment in Margin Applicable to Fixed Rate Elections
for Tranche A 12
c. Interest on Tranche B 13
(1) Election of Fixed Rates for Tranche B. 13
(2) Initial Fixed Rate for Tranche B. 13
(3) Adjustment of Tranche B Fixed Rate Based on Financial
Statements. 14
(4) No Designation Upon Occurrence of a Default or Event of
Default 15
d. Other Interest Provisions 15
(1) Interest Payment Dates 15
(2) Payments Due on Business Days. 16
(3) Computation of Interest. 16
(4) Default Rate. 16
(5) Interest Not to Exceed Maximum Lawful Rate. 17
(6) Additional Fixed Rate Provisions. 17
7. Loan Fee. 18
8. Other Prepayments. 19
a. Prepayment in Full. 19
b. Partial Prepayment of Fixed Rate Obligations. 19
c. Prepayment Surcharge. 19
9. Manner and Time of Payment. 19
10. Capitalization. 19
11. Collateral; No Subordination. 20
12. Representations and Warranties. 20
a. Corporate Existence; Compliance with Law 21
b. Corporate Power; Authorization; Enforceable Obligations 21
c. Financial Statements and Condition; Disclosure 22
d. Taxes. 22
e. Licenses; Permits; Intellectual Property Rights. 23
f. Labor Matters 23
g. Investment Company Act 23
h. Margin Regulations 23
i. ERISA 23
j. Brokers 24
13. Affirmative Covenants. 24
a. Eligibility. 24
b. Corporate Existence. 24
c. Compliance with Laws. 24
d. Property Maintenance. 24
e. Books and Records. 25
f. Inspection. 25
g. Reports and Notices. 25
(1) Annual Financial Statement. 25
(2) Quarterly Financial Statements. 25
(3) Annual Budget and Cash Flow Forecast. 25
(4) Notice of Default. 25
(5) Tax Returns 25
(7) Notice of Environmental Litigation, Etc. 26
(8) Other Information. 26
h. Insurance. 26
14. Negative Covenants. 27
a. Mergers, Acquisitions, Etc. 27
b. Transfer of Assets. 27
c. Change in Business. 28
d. Liens. 28
e. Indebtedness. 28
f. Capital Expenditures. 28
g. Loans. 28
h. Restricted Payments. 28
i. Transactions with Affiliates. 29
j. Financial Covenants. 30
(1) Minimum Tangible Net Worth. 30
(2) Current Ratio. 30
(3) Debt Coverage Ratio. 30
15. Events of Default. 30
a. Payment Default. 30
b. Representations and Warranties. 30
c. Other Covenants and Agreements. 31
d. Other Indebtedness. 31
e. Judgments. 31
f. Insolvency, Etc. 31
g. Material Adverse Change. 31
16. Remedies Upon Events of Default. 31
a. Termination of Rights; Acceleration. 31
b. Enforcement. 32
c. Application of Funds. 32
17. Complete Agreement; Amendments. 32
18. Applicable Law. 32
19. Notices. 32
20. Costs and Expenses. 33
21. Effectiveness; Severability. 33
22. Successors and Assigns. 34
EXHIBIT A 35
Loan No. _________
LOAN AGREEMENT
This LOAN AGREEMENT ("Agreement") is entered into as of
April 18, 1997 between PACIFIC COAST FARM CREDIT SERVICES, ACA,
("PCFC") and MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii
corporation ("Borrower").
1. Definitions. The following terms used in this
Agreement shall have the following meanings:
"Adjusted Gains on Asset Sales" shall mean the
capital gains recognized by Borrower upon the sale of a real
property asset, or upon the sale of a real property asset by a
Person in which Borrower has an investment or upon the sale by
Borrower of its interest in a Person holding a real property
asset, attributable to the increase in value of the real property
that occurred as a result of appreciation in value of the
underlying land prior to the commencement of development of such
real property, as opposed to profit attributable to the increase
in value that occurred after commencement of development.
"Affiliate" shall mean, with respect to any
Person, (i) each Person that, directly or indirectly, owns or
controls, whether beneficially, or as a trustee, guardian or
other fiduciary, ten percent (10%) or more of the Stock having
ordinary voting power in the election of directors of such
Person, (ii) each Person that controls, is controlled by or is
under common control with such Person or any Affiliate of such
Person or (iii) each of such Person's officers, directors, joint
venturers and partners. For the purpose of this definition,
"control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its
management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"Calendar Quarter" shall mean a three-month period
beginning on January 1, April 1, July 1, or October 1 of any
particular year and ending on March 31, June 30, September 30, or
December 31, respectively, of that same year.
"Capital Expenditures" shall mean, for any period,
the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that
portion of Capital Leases that is capitalized on the balance
sheet of Borrower including in connection with a sale-leaseback
transaction) by Borrower and its Subsidiaries for the acquisition
or leasing of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and improvements
during such period) which are required to be capitalized under
GAAP on a consolidated balance sheet of Borrower and its
Subsidiaries. Capital Expenditures shall not include (i) the
actual value received for existing equipment either traded-in at
time of purchase of new equipment or sold in the ordinary course
of business (but only to the extent such equipment is replaced),
and (ii) expenditures made from insurance proceeds.
"Capital Lease" shall mean any lease of any
property (whether real, personal or mixed) by Borrower or a
Subsidiary as lessee that, in accordance with GAAP, either would
be required to be classified and accounted for as a capital lease
on a balance sheet of Borrower or such Subsidiary or otherwise be
disclosed as such in a note to such balance sheet.
"Consolidated Cash Flow" shall mean, for any
period, for Borrower and its Subsidiaries on a consolidated
basis, the sum (without duplication) of: (a) Consolidated Net
Income; plus (b) the sum of (i) Equity in Losses of Joint
Ventures, (ii) extraordinary non-cash losses, (iii) interest
expense (including the interest portion of any capitalized lease
obligations), (iv) depletion, depreciation and amortization, and
(v) losses on asset sales; minus (c) the sum of (i) Equity in
Earnings of Joint Ventures, (ii) extraordinary gains,
(iii) Adjusted Gains on Asset Sales, (iv) Maintenance Capital
Expenditures, and (v) Restricted Payments made during such
period, other than Restricted Payments referred to in clause
(iii) of the definition of Restricted Payments.
"Consolidated Current Assets" shall mean, as at
any date of determination, the current assets of Borrower and its
Subsidiaries, determined on a consolidated basis in conformity
with GAAP.
"Consolidated Current Liabilities" shall mean, as
at any date of determination, the current liabilities of Borrower
and its Subsidiaries, determined on a consolidated basis in
conformity with GAAP, adjusted to include all obligations under
Tranche A.
"Consolidated Debt Coverage Ratio" shall mean, as
at any date of determination, the ratio of Consolidated Cash Flow
for any period to Consolidated Debt Service for such period.
"Consolidated Debt Service" shall mean, for any
period, for Borrower and its Subsidiaries on a consolidated
basis, the sum (without duplication) of the following:
(i) interest expense (including the interest portion of any
capitalized lease obligations), and (ii) scheduled principal
payments (including the principal portion of capitalized lease
obligations).
"Consolidated EBITDA" shall mean, for any period,
for Borrower and its Subsidiaries on a consolidated basis, the
sum (without duplication) of: (a) Consolidated Net Income; plus
(b) the sum of (i) Federal, state, local, and foreign income
taxes, (ii) Equity in Losses of Joint Ventures, (iii) interest
expense (including the interest portion of any capitalized lease
obligations), (iv) depletion, depreciation and amortization,
(v) losses on asset sales, and (vi) all other non-cash expenses;
minus (c) the sum of (i) Equity in Earnings of Joint Ventures,
(ii) Adjusted Gains on Asset Sales, and (iii) extraordinary
gains.
"Consolidated Indebtedness" shall mean, as at any
date of determination, for Borrower and its Subsidiaries on a
consolidated basis, the sum (without duplication) of: (i) all
obligations for borrowed money or for the deferred purchase price
of property or services (including the present value of
capitalized lease obligations) which, in accordance with GAAP,
would be included in determining total liabilities as shown on
the liability side of a balance sheet as of the date at which
such indebtedness is to be determined, (ii) guarantees (other
than Borrower's $9,000,000 limited payment guaranty of
indebtedness of Kaahumanu Center Associates relating to the
Kaahumanu Shopping Center), and (iii) letters of credit (other
than letters of credit to support trade payables) and
endorsements (other than of notes, bills, and checks presented to
banks for collection or deposit in the ordinary course of
business), in each case to support obligations for borrowed money
of others.
"Consolidated Indebtedness to Consolidated EBITDA
Ratio" shall mean, as at any date of determination, the ratio of
Consolidated Indebtedness, as of such date of determination, to
Consolidated EBITDA for the rolling four-quarter period ending
upon such date of determination.
"Consolidated Net Income" shall mean, for any
period, on a consolidated basis, the net income, if any, of
Borrower and its Subsidiaries, determined in accordance with
GAAP.
"Consolidated Net Loss" shall mean, for any
period, on a consolidated basis, the net loss, if any, of
Borrower and its Subsidiaries, determined in accordance with
GAAP.
"Consolidated Tangible Net Worth" shall mean, as
at any date of determination, the gross book value of the assets
of Borrower, (exclusive of goodwill, patents, trademarks, trade
names, organization expense, unamortized debt discount and
expense, deferred charges (other than deferred development costs
related to the Kapalua Resort, provided the aggregate of said
costs shall not exceed $5,000,000), and other like intangibles,
minus (i) reserves applicable thereto, and (ii) all liabilities
(including subordinated liabilities), in each case determined in
accordance with GAAP and taking into effect such other
adjustments as may be reasonably determined by PCFC in accordance
with GAAP.
"Default" shall mean the occurrence of any event
or circumstance which, with the passage of time or the giving of
notice or both, would become an Event of Default
"Default Rate" shall mean a rate of interest that
is two percent (2.00%) higher than the rate otherwise applicable;
provided that with respect to fees, costs, or expenses, or any
amount other than principal, the Default Rate applicable to such
obligations shall be the Alternate Base Rate plus three percent
(3.00%).
"Equity in Earnings of Joint Ventures" shall mean
that portion of the earnings from joint ventures which are not
distributed in cash to Borrower, determined on a consolidated
basis in conformity with GAAP.
"Equity in Losses of Joint Venture" shall mean the
non-cash portion of any losses realized from joint ventures,
determined on a consolidated basis in conformity with GAAP.
"Fiscal Quarter" shall mean any of the quarterly
accounting periods of Borrower.
"Fiscal Year" shall mean the 12-month period of
Borrower ending December 31 of each year. Subsequent changes of
the fiscal year of Borrower shall not change the term "Fiscal
Year," unless PCFC shall consent in writing to such change.
"GAAP" shall mean generally accepted accounting
principles.
"Guarantor" shall mean any Person that has
guaranteed to PCFC all or any part of the Loan.
"Guaranty Agreement" shall mean any Continuing
Guaranty or other agreement by which a Guarantor has guaranteed
all or any portion of the Loan.
"Investments" shall mean all expenditures by
Borrower and its Subsidiaries, other than Capital Expenditures,
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 as reflected as investments
in Borrower's financial statements.
"Lien" shall mean any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, lien,
charge, claim, security interest or encumbrance, or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including any lease or title
retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing).
"Maintenance Capital Expenditures" shall mean
Capital Expenditures for the replacement of capital assets used
in the ordinary course of business.
"Material Adverse Effect" shall mean a Material
Adverse Effect on (i) the business, assets, operations,
prospects, or financial or other condition of Borrower or any
Guarantor, (ii) Borrower's ability to pay its obligations to PCFC
under this Agreement, or (iii) PCFC's rights and remedies under
this Agreement or any Guaranty Agreement.
"Permitted Encumbrances" shall mean the following
encumbrances: (i) Liens for taxes or assessments or other
governmental charges or levies, either not yet due and payable or
to the extent that nonpayment thereof is permitted by the terms
of this Agreement; (ii) pledges or deposits securing obligations
under workmen's compensation, unemployment insurance, social
security or public liability laws or similar legislation;
(iii) pledges or deposits securing bids, tenders, contracts
(other than contracts for the payment of money) or leases to
which Borrower or any Guarantor is a party as lessee made in the
ordinary course of business; (iv) workers', mechanics',
suppliers' or similar Liens arising in the ordinary course of
business that are either not yet due and payable or that are
being contested in good faith by appropriate proceedings and for
which Borrower or any Guarantor has established adequate
reserves; (v) carriers', warehousemen's, or other similar
possessory Liens arising in the ordinary course of business;
(vi) an attachment or judgment Lien, but only for a period of
thirty (30) days following attachment of such Lien and such
attachment or judgment lien shall cease to be a Permitted
Encumbrance if the obligation that it secures has not been
satisfied or bonded during such thirty (30) day period;
(vii) zoning restrictions, easements, licenses, or other
restrictions on the use of real property or other minor
irregularities in title (including leasehold title) thereto, so
long as the same do not materially impair the use, value, or
marketability of such real property, leases or leasehold estates;
(viii) Liens securing indebtedness owed by a Subsidiary to
Borrower; (ix) security interests securing purchase money
indebtedness in capital assets, the acquisition of which is
permitted by this Agreement, and so long as the security interest
does not encumber any asset other the asset acquired; (x) any
Lien listed as a Permitted Encumbrance on the Disclosure Schedule
referred to in Exhibit A, and (xi) the refinancing of the real
property mortgages referred to in the Disclosure Schedule
referred to in Exhibit A, provided that such refinancing covers
the same property covered by the original mortgages, secures a
principal amount not in excess of that secured by such mortgages
on the date of refinancing, and the terms of such refinancing
have all been negotiated at arms length and are on fair market
terms.
"Person" shall mean any individual, sole
proprietorship, partnership, joint venture, trust, unincorporated
organization, association, corporation, limited liability
company, institution, public benefit corporation, entity or
government (whether federal, state, county, city, municipal or
otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
"Restricted Payments" shall mean (i) dividends or
other distributions or payments on account of or with respect to
any capital stock of Borrower or of any Guarantor, except
distributions consisting of such stock or, in the case of a
Guarantor, distributions or payments made to Borrower, (ii) the
redemption or acquisition of such stock or of warrants, rights,
or other options to purchase such stock, except, in the case of a
Guarantor, redemption or acquisition of stock held by Borrower,
and (iii) any payment, repayment, redemption, retirement,
repurchase or other acquisition, direct or indirect, by Borrower,
any Guarantor or any Subsidiary of Borrower or any Guarantor of
any principal portion of any obligation or indebtedness that has
been subordinated to the indebtedness owed by Borrower to PCFC.
"Stock" shall mean all shares, options, warrants,
general or limited partnership interests, participations or other
equivalents (regardless of how designated) of or in a
corporation, partnership or equivalent entity whether voting or
nonvoting, including, without limitation, common stock, preferred
stock, or any other "equity security" (as such term is defined in
Rule 3a11-1 of the General Rules and Regulations promulgated by
the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended).
"Subsidiary" shall mean, with respect to any
Person, (i) any corporation of which an aggregate of more than
50% of the outstanding Stock having ordinary voting power to
elect a majority of the board of directors of such corporation
(irrespective of whether, at the time, Stock of any other class
or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the
time, directly or indirectly, owned legally or beneficially by
such Person and/or one or more Subsidiaries of such Person, or
with respect to which any such Person has the right to vote or
designate the vote of 50% or more of such Stock whether by proxy,
agreement, operation of law or otherwise and (ii) any
partnership, trust, limited liability company, or other entity in
which such Person and/or one or more Subsidiaries of such Person
shall have an interest (whether in the form of voting or
participation in profits or capital contribution) of more than
50% or of which any such Person is a general partner or may
exercise the powers of a general partner.
2. The Loan. On the terms and conditions set forth
in this agreement, PCFC agrees to make a loan to Borrower in a
principal amount of up to Five Million Dollars ($5,000,000) (the
"Loan"). The Loan shall consist of a revolving component
("Tranche A") and a term component ("Tranche B") which together
shall constitute a single loan. The Loan will be available to
Borrower on the terms and conditions set forth in this Agreement
when all conditions precedent set forth in Section 3 have been
satisfied.
3. Conditions Precedent. PCFC's obligation to make
an advance hereunder is subject to the following conditions
precedent:
a. Required Documents. PCFC shall have received
an executed original of this Agreement from Borrower as well as
all of the other documents (the "Other Documents") listed in
Exhibit A, each of which must be satisfactory to PCFC in its sole
discretion.
b. Approvals. PCFC shall have received evidence
satisfactory to it that all consents and approvals which are
necessary for or required as a condition of the validity and
enforceability of this Agreement and all documents and
instruments contemplated hereby, have been obtained and are in
full force and effect.
c. Event of Default. No Default or Event of
Default shall have occurred and be continuing.
d. Loan Fee. Borrower shall have paid to PCFC
the Loan Fee required by Section 7.
e. Subordination Agreements. Borrower shall
have delivered to PCFC subordination agreements, in form and
substance satisfactory to PCFC, from the persons identified on
Exhibit A pursuant to which obligations that Borrower owes to
such persons are subordinated to Borrower's obligations to PCFC
under this Agreement.
f. Continuing Guaranty Agreements. Borrower
shall have delivered to PCFC continuing guaranty agreements, in
form and substance satisfactory to PCFC, from the persons
identified on Exhibit A pursuant to which such Persons guarantee
to PCFC all of Borrower's obligations to PCFC under this
Agreement.
4. Revolving Portion of Loan -- Tranche A.
a. Purpose of Tranche A. Advances shall be
available to enable Borrower to acquire or develop capital assets
for use in Borrower's pineapple growing, packing, processing, and
shipping operation, including equipment, machinery, vehicles,
buildings, and improvements to real property.
b. Advances. So long as no Default or Event of
Default shall have occurred and be continuing, Borrower may
request advances under Tranche A from time to time as set forth
later in this Section 4. Advances may be repaid and reborrowed
by Borrower at any time or may be converted to a term obligation
under Tranche B in the manner set forth in Section 5. Advances
will be made available on any day on which PCFC is open for
business (a "Business Day") upon the telephonic or written
request of an authorized employee of Borrower. Requests for
advances must be received by PCFC no later than 11:00 A.M.,
Pacific Time, on the day the advance is desired. Unless
otherwise agreed, all advances will be made available by wire
transfer of immediately available funds. Wire transfers will be
made to such account or accounts as Borrower may authorize from
time to time on forms supplied by PCFC. In making advances based
on a telephonic request, PCFC shall be entitled to rely on (and
shall incur no liability to the Borrower in acting upon) any
request made by a Person identifying himself or herself as one of
the Persons authorized by Borrower to request advances hereunder.
c. Additional Documentation. At or prior to the
time that Borrower requests an advance under Tranche A, Borrower
shall deliver to PCFC a certificate executed by an authorized
officer of Borrower, which must be reasonably satisfactory to
PCFC, setting forth the proposed use of the advance requested by
Borrower and indicating that the proposed use is for a purpose
within the scope of Section 4(a).
d. Maximum Amount of Tranche A. The maximum
principal amount that may be outstanding under Tranche A at any
one time shall not exceed the "Tranche A Maximum Amount." The
Tranche A Maximum Amount shall initially be Five Million Dollars
($5,000,000), but shall decrease dollar for dollar by the amount
of all principal amounts that have been converted to a term
obligation under Tranche B. For example, if Borrower converts
$500,000 of Tranche A to Tranche B, then the Tranche A Maximum
Amount is reduced $4,500,000. If there is another conversion of
$500,000, then the Tranche A Maximum Amount will be reduced to
$4,000,000. At such time as $5,000,000 in principal amount has
been converted to Tranche B, the Tranche A Maximum Amount will
have been reduced to zero and no further advances will be
available under Tranche A.
e. Limitation on Advances; Maturity Date.
Borrower may receive advances until such time as the Tranche A
Maximum Amount has been reduced to zero; provided that the last
day on which Borrower may receive an advance under Tranche A is
December 23, 1997 (the "Tranche A Last Advance Date"). All
advances under Tranche A that have not been converted to a term
obligation under Tranche B shall be due and payable on January 1,
1998 (the "Tranche A Maturity Date").
f. Borrower's Option to Extend Tranche A.
Provided that on the date of proposed extension there does not
exist a Default or Event of Default, Borrower shall have the
option to extend the Tranche A Last Advance Date and the
Tranche A Maturity Date for one year each by paying to PCFC the
"Extension Fee" (as defined below) at any time between
December 1, 1997 and December 10, 1997. The Extension Fee shall
equal the product derived from multiplying (i) one hundred twenty
five/one thousandths of one percent (0.125%) by (ii) the average
amount, determined on a daily basis for the period from the
effectiveness of this Agreement through November 30, 1997, by
which $5,000,000 exceeded the sum of (x) the principal balance of
all Tranche A advances outstanding on each particular day during
such period, and (y) the principal amount of all Tranche A
advances converted to Tranche B by such particular day. Upon
Borrower's payment to PCFC of the Extension Fee during the period
specified above, the Tranche A Last Advance Date shall be
automatically extended to December 23, 1998 and the Tranche A
Maturity Date shall be automatically extended to January 1, 1999.
5. Term Portion of Loan -- Tranche B.
a. Conversion of Tranche A Obligations to
Tranche B. So long as no Default or Event of Default has
occurred and is continuing, Borrower may elect to convert all or
a portion of obligations outstanding under Tranche A to a term
obligation under Tranche B in the manner set forth in this
Section 5. A conversion shall be in an amount not less than
$500,000 and may be in any additional incremental amount of
$5,000. A conversion may be made effective the first day of any
month through and including January 1, 1998 or, if Borrower
extends the Tranche A Last Advance Date as provided in
Section 4(f), through and including January 1, 1999, and may be
made for a term expiring no earlier than the first day of the
fourth Calendar Quarter that commences after the date of
conversion and in additional quarterly increments not to extend
beyond January 1, 2002 (the "Tranche B Maturity Date"). For
example, if a conversion is made on March 1, 1997, the shortest
term that Borrower may elect would expire on January 1, 1998.
Borrower may, instead, elect a term expiring on any Calendar
Quarter thereafter up to and including the Tranche B Maturity
Date. If a conversion was made on April 1, 1997, the shortest
term that Borrower may elect would expire on April 1, 1998.
b. Making of Tranche B Election. To make such
an election, Borrower shall deliver to PCFC in the manner
provided in this Section 5(b) a "Conversion Notice" between three
and seven days prior to the proposed conversion date. The
Conversion Notice shall specify (i) the amount of the proposed
Tranche A obligations to be converted to Tranche B, (ii) the
Conversion Date that such amount is to be converted to Tranche B
(which shall be the first day of the following month), (iii) the
maturity date for the Tranche A principal being converted, and
(iv) the Interest Period or Interest Periods that Borrower has
selected for the converted amount.
c. Repayment of Principal. Principal of any
amount converted to Tranche B shall be due and payable in equal
quarterly installments on the first day of each Calendar Quarter
following conversion until the maturity date for such converted
amount. For example, if $500,000 is converted on March 1, 1997
for a period ending July 1, 1999 (i.e., for a period encompassing
the first day of the next ten Calendar Quarters), then principal
payments of $50,000 each shall be due on each April 1, July 1,
October 1, and January 1 from April 1, 1997 through July 1, 1999.
6. Interest.
a. Definitions. For the purposes of this
section the following terms shall have the meanings as follows:
"Alternate Base Rate" means on any given day the higher
of (i) the Prime Rate plus a margin of 0.00%, or (ii) the PCFC
Variable Rate plus a margin of 2.71%.
"Farm Credit Discount Note Rate" means the all-in cost
paid by Western Farm Credit Bank on ninety (90) day or one (1)
year Farm Credit Discount Notes, as the case may be, on Farm
Credit Discount Notes made available to Western Farm Credit Bank
by the Federal Farm Credit Bank Funding Corporation.
"Farm Credit Medium Term Note" means the Farm Credit
Medium Term Notes made available to Western Farm Credit Bank by
the Federal Farm Credit Bank Funding Corporation.
"Fixed Rate" means: (a) with respect to any portion of
Tranche A that Borrower elects at any time pursuant to
Section 6(b)(2) to convert to a fixed rate of interest, the
applicable LIBO Rate as of the date of such election plus a
margin equal to two percent (2.00%), or such lower margin, if
any, for which Borrower qualifies under Section 6(b)(3); (b) with
respect to Tranche B, the rates and applicable margins provided
in Section 6(c).
"Interest Determination Date" means the date, as
designated by Borrower on which a portion of Tranche A or a
portion of Tranche B shall begin to bear interest at a Fixed
Rate.
"Interest Period" means (a) with respect to any portion
of interest on Tranche A that Borrower elects to have bear
interest at a Fixed Rate, a period beginning on the Interest
Determination Date and ending, at Borrower's election, either
thirty (30), ninety (90), one hundred eighty (180), or three
hundred sixty (360) days thereafter, and (b) with respect to
interest on Tranche B, a period beginning on the Interest
Determination Date and ending, at Borrower's election, either
ninety (90) days, one (1) year, two (2) years, three (3) years,
or four (4) years thereafter.
"LIBO Rate" means, for any Interest Determination Date,
the rate offered from time to time for U.S. Dollar deposits for
the Interest Period selected, as quoted by Telerate News Service
as of 11:00 A.M. London setting time (or, at PCFC's option, a
comparable reference on the Reuters Screen LIBOR Page or such
other quotation service as may be chosen by Agent) on the second
full Eurodollar Business Day preceding the beginning of the
Interest Period; provided, that if two or more of such offered
rates appear on Telerate (or on the Reuters Screen LIBOR Page or
alternative service, as the case may be), the "LIBO Rate" shall
be highest of the two rates quoted.
"Prepayment" means a payment of principal made in
advance of the date scheduled for such payment, whether such
payment is made voluntarily or by operation of law, acceleration
of maturity or otherwise.
"PCFC Variable Rate" means the variable user rate
quoted by the Western Farm Credit Bank to PCFC, representing a
rate charged by Western Farm Credit Bank to PCFC with respect to
certain obligations owed by PCFC to Western Farm Credit Bank. In
the event that Western Farm Credit Bank ceases to quote a
variable user rate to PCFC or PCFC has no obligations to Western
Farm Credit Bank, PCFC shall choose an alternative variable rate
that closely approximates the initial PCFC Variable Rate.
"Prime Rate" means that rate in effect from day-to-day
defined as the "Prime Rate" in the Eastern edition of the Wall
Street Journal, or the highest such rate if more than one is
shown. If the Wall Street Journal shall cease to publish a
"Prime Rate," PCFC shall determine an appropriate replacement
index.
b. Interest on Tranche A.
(1) Alternate Base Rate. Advances under
Tranche A shall bear interest at the Alternate Base Rate, unless
Borrower elects to convert the interest rate to a Fixed Rate for
an Interest Period selected by Borrower in accordance with the
provisions of Section 6(b)(2). Interest accruing at the
Alternate Base Rate may be adjusted automatically whenever the
Alternate Base Rate changes and the interest rate adjustment will
be effective as of the date of the change or as soon thereafter
as may be permitted by any applicable law. PCFC will provide
such notice to Borrower as may be required by law.
(2) Fixed Rate for Tranche A. Borrower may,
from time to time, elect to convert all or a portion of the
outstanding advances under Tranche A to a Fixed Rate; provided,
that (i) at least three (3) Business Days prior to the proposed
Interest Determination Date, Borrower has provided PCFC with
written notice of such election, the requested Interest
Determination Date, the amount of the advances under Tranche A to
be converted, and the requested Interest Period for the amount to
be converted, (ii) at the time of delivery of such written notice
and upon the date of conversion, no Default or Event of Default
exists under this Agreement, (iii) at no time shall there be more
than five (5) outstanding tranches of Tranche A bearing interest
at a Fixed Rate, (iv) the last day of the Interest Period chosen
by Borrower shall not extend beyond the Tranche A Maturity Date,
and (v) the amount converted to a Fixed Rate at any one time
shall be not less than Two Hundred Fifty Thousand Dollars
($250,000) and any amounts in excess thereof shall be in integral
multiples of Five Thousand Dollars ($5,000). Any election by
Borrower pursuant to this Section 6(b)(2) shall be irrevocable
during the Interest Period selected by Borrower, and that portion
of Tranche A so converted shall bear interest at the applicable
Fixed Rate until the expiration of the applicable Interest Period
at which time, unless another Fixed Rate has been duly elected by
Borrower pursuant to this Section 6(b)(2), the interest rate for
such portion of Tranche A will automatically convert to the
Alternate Base Rate.
(3) Adjustment in Margin Applicable to Fixed
Rate Elections for Tranche A. Upon delivery of the annual
audited financial statement of Borrower for the Fiscal Year ended
December 31, 1997, as delivered to PCFC pursuant to
Section 13(g), PCFC shall calculate the ratio of Borrower's
Consolidated Indebtedness to Consolidated EBITDA for such Fiscal
Year. The margin applicable to the Fixed Rate for Interest
Periods selected commencing in the month after the date of
delivery of such financial statement shall be adjusted, based
upon the determination of the ratio, to the applicable margin for
such level listed below:
Consolidated Indebtedness Applicable
to Consolidated EBITDA Ratio Level Margin
Greater than 2.75 2.00%
Between 2.25 and 2.75 1.80%
Less than 2.25 1.60%
Notwithstanding anything to the contrary in the foregoing, if a
Default or Event of Default shall have occurred and be continuing
on either the date that Borrower elects to convert a portion of
Tranche A to a Fixed Rate or upon the Interest Determination
Date, then Borrower shall have no right to elect a Fixed Rate.
If Borrower is nonetheless permitted to elect a Fixed Rate,
Borrower shall not be entitled to any reduction in the applicable
margin otherwise available under this Section 6(b)(3).
c. Interest on Tranche B.
(1) Election of Fixed Rates for Tranche B.
Tranche B shall bear interest at a Fixed Rate, as elected by
Borrower in accordance with the terms of this Agreement. Each
Conversion Notice with respect to Tranche B shall designate the
Interest Periods elected by Borrower for the amounts covered by
such Conversion Notice, and upon the expiration of each Interest
Period, Borrower shall designate a subsequent Interest Period or
Interest Periods, which designations shall be subject to the
following conditions: (i) Borrower may designate a total of no
more than eight (8) separate Interest Periods for all amounts
outstanding under Tranche B, (ii) the last day of the Interest
Period chosen by Borrower shall not extend beyond the maturity
date of that portion of Tranche B, (iii) the amount of each
portion of Tranche B designated for an Interest Period of ninety
(90) days or one (1) year shall be not less than Five Hundred
Thousand Dollars ($500,000) plus additional incremental amounts
of Ten Thousand Dollars ($10,000) or integral multiples thereof,
and (iv) the amount of each portion of Tranche B designated for
an Interest Period of two (2) years, three (3) years, or four (4)
years shall be not less than Five Hundred Thousand Dollars
($500,000) plus additional incremental amounts of Ten Thousand
Dollars ($10,000) or integral multiples thereof. The
designations made by Borrower pursuant to this Section 6(c)(1)
shall be irrevocable during the Interest Period selected by
Borrower and any portion of Tranche B so designated shall bear
interest at the applicable Fixed Rate until the expiration of the
applicable Interest Period.
(2) Initial Fixed Rate for Tranche B. The
initial Fixed Rates for Tranche B shall be as set forth in this
Section 6(c)(2) and the Fixed Rate shall remain as set forth in
this Section 6(c)(2) unless Borrower qualifies for the different
rates set forth in Section 6(c)(3). The initial Fixed Rates
available for the ninety (90) day and one (1) year Interest
Periods shall be the higher of the LIBO Rate or the Farm Credit
Discount Note Rate for such period plus the applicable margin set
forth below:
Interest Period Applicable Margin
90 days 2.00%
one year 2.00%
The Fixed Rates available for the two (2), three (3), and four
(4) year Interest Rate Periods shall be the interpolated yield of
the applicable Farm Credit Medium Term Note most closely matching
the maturity of the particular Interest Period, plus the
applicable margin set forth below:
Interest Period Applicable Margin
two years 2.25%
three years 2.25%
four years 2.35%
(3) Adjustment of Tranche B Fixed Rate Based
on Financial Statements. Upon delivery of the annual audited
financial statement of Borrower for each Fiscal Year commencing
with the Fiscal Year ending December 31, 1997, as delivered to
PCFC pursuant to Section 13(g), PCFC shall calculate the ratio of
Borrower's Consolidated Indebtedness to Consolidated EBITDA for
each such Fiscal Year. The margin applicable to the Fixed Rate
for Tranche B for Interest Periods selected commencing in the
month after the date of delivery of such financial statement and
continuing through and including the month during which the
subsequent annual audited financial statement is delivered to
PCFC shall be adjusted, based on the determination of the ratio,
to the rates set forth below:
For Interest Periods of ninety (90) days and one (1)
year, the Fixed Rate shall be the higher of the LIBO Rate or the
Farm Credit Discount Note Rate for such period, plus the
applicable margin set forth below:
Consolidated Indebtedness Applicable
to Consolidated EBITDA Ratio Level Margin
Greater than 2.75 2.00%
Between 2.25 and 2.75 1.80%
Less than 2.25 1.60%
For Interest Periods of two (2) years and three (3)
years, the Fixed Rate shall be the interpolated yield of the
applicable Farm Credit Medium Term Note most closely matching the
maturity of the particular Interest Period, plus the applicable
margin set forth below:
Consolidated Indebtedness Applicable
to Consolidated EBITDA Ratio Level Margin
Greater than 2.75 2.25%
Between 2.25 and 2.75 2.10%
Less than 2.25 1.95%
For Interest Periods of four (4) years, the Fixed Rate
shall be the interpolated yield of the applicable Farm Credit
Medium Term Note most closely matching the maturity of the
particular Interest Period, plus the applicable margin set forth
below:
Consolidated Indebtedness Applicable
to Consolidated EBITDA Ratio Level Margin
Greater than 2.75 2.35%
Between 2.25 and 2.75 2.20%
Less than 2.25 2.05%
Notwithstanding anything to the contrary in the foregoing,
(i) changes in the Fixed Rate as described in this
Section 6(c)(3) shall not affect the Fixed Rate for Interest
Periods that have already commenced, and (ii) if a Default or
Event of Default shall have occurred and be continuing on the
date that Borrower designates an Interest Period or on the
Interest Determination Date, Borrower shall not be entitled to
the Fixed Rates provided for by this Section 6(c)(3).
(4) No Designation Upon Occurrence of a
Default or Event of Default. If a Default or Event of Default
shall have occurred, then during the continuance of such Default
or Event of Default Borrower shall have no right to designate an
Interest Period if a previous Interest Period shall expire. If
an Interest Period shall expire during the continuance of a
Default or Event of Default, the new Interest Period shall
automatically be for ninety (90) days. If such Default or Event
of Default shall subsequently be cured, Borrower may thereafter
designate Interest Periods in accordance with this Agreement.
d. Other Interest Provisions.
(1) Interest Payment Dates. Interest shall
be due and payable on the first day of each Calendar Quarter,
commencing April 1, 1997, with respect to all interest accrued on
Tranche A at the Alternate Base Rate during the preceding
Calendar Quarter. Interest shall be due and payable on the first
day of each calendar month, with respect to all interest accrued
on Tranche A advances bearing interest at a Fixed Rate and with
respect to all interest accrued on Tranche B; provided, that if
any Interest Period shall mature prior to the first day of a
month, then interest accrued at a Fixed Rate during the
particular Interest Period shall be due and payable upon
expiration of the Interest Period. Interest accrued on Tranche A
but not otherwise due and payable on the Tranche A Maturity Date
shall become due and payable on the Tranche A Maturity Date.
Interest accrued on Tranche B but not otherwise due and payable
on the Tranche B Maturity Date shall become due and payable on
the Tranche B Maturity Date.
(2) Payments Due on Business Days. If any
installment of interest or any other amount payable under any
Loan Document becomes due and payable on a day other than a
Business Day, the payment date for such payment shall be extended
to the next succeeding Business Day and, with respect to payments
of principal or other payments that bear interest (other than
interest first due on such date), interest thereon shall be
payable at the then applicable rate during such extension;
provided, however, if any installment of interest at a Fixed Rate
shall become due and payable on a Saturday, the payment date for
such payment shall be the preceding Business Day.
(3) Computation of Interest. All
computations of interest on Tranche B or any portion of Tranche A
bearing interest at a Fixed Rate shall be made by PCFC on the
basis of a three hundred sixty (360) day year for the actual
number of days occurring in the period for which such interest is
payable. All computations of interest on Tranche A bearing
interest at the Alternate Base Rate shall be made by PCFC on the
basis of a three hundred sixty five (365) day year, in each case
for the actual number of days occurring in the period for which
such interest is payable. Interest determined by reference to
the Alternative Base Rate shall be determined on a daily basis
for use in calculating the interest that is payable for such day,
and any change in the Alternative Base Rate shall become
effective on the day such change occurs. Each determination by
PCFC of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error or bad faith.
(4) Default Rate. Any overdue principal of
or interest with respect to any portion of Tranche A or
Tranche B, and the amount of any fees, costs, or expenses that
Borrower is obligated to pay to PCFC under this Agreement not
paid when due, shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the Default Rate. In
addition, upon and after the occurrence of an Event of Default
and continuing until such Event of Default has been cured or
waived in writing by PCFC in accordance with the terms of this
Agreement, interest shall accrue on all obligations owed by
Borrower to PCFC hereunder at the Default Rate. The interest
rate increase to the Default Rate shall take effect immediately
upon the occurrence of an Event of Default, without prior notice
to Borrower.
(5) Interest Not to Exceed Maximum Lawful
Rate. Notwithstanding anything to the contrary set forth in this
Agreement, if at any time until payment in full of all of
obligations under this Agreement, the rate of interest payable
hereunder exceeds the highest rate of interest permissible under
any law which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto (the "Maximum Lawful
Rate"), then in such event and so long as the Maximum Lawful Rate
would be so exceeded, the rate of interest payable hereunder
shall be equal to the Maximum Lawful Rate; provided, that if at
any time thereafter the rate of interest payable hereunder is
less than the Maximum Lawful Rate, Borrower shall continue to pay
interest hereunder at the Maximum Lawful Rate until such time as
the total interest received by PCFC is equal to the total
interest which PCFC would have received had the interest rate
payable hereunder been (but for the operation of this
Section 6(d)(5) the interest rate payable since the date of this
Agreement. Thereafter, the interest rate payable hereunder shall
be the rate of interest set forth herein, unless and until the
rate of interest again exceeds the Maximum Lawful Rate, in which
event this paragraph shall again apply. In no event shall the
total interest received by PCFC pursuant to the terms hereof
exceed the amount which PCFC could lawfully have received had the
interest due hereunder been calculated for the full term hereof
at the Maximum Lawful Rate. In the event the Maximum Lawful Rate
is calculated pursuant to this Section 6(d)(5), such interest
shall be calculated at a daily rate equal to the Maximum Lawful
Rate divided by the number of days in the year in which such
calculation is made. In the event that a court of competent
jurisdiction, notwithstanding the provisions of this
Section 6(d)(5), shall make a final determination that PCFC has
received interest hereunder in excess of the Maximum Lawful Rate,
PCFC shall, to the extent permitted by applicable law, promptly
apply such excess first to any interest due and not yet paid,
then to the outstanding principal of Tranche A and Tranche B,
respectively, (without premium or penalty), and then to any other
unpaid obligations owed by Borrower under this Agreement and
thereafter shall refund any excess to Borrower or as a court of
competent jurisdiction may otherwise order.
(6) Additional Fixed Rate Provisions. If at
any time PCFC reasonably determines that for any reason adequate
and reasonable means do not exist for ascertaining the LIBO Rate
or any other index hereunder or the LIBO Rate or any such index
generally becomes unavailable to PCFC, PCFC shall promptly give
notice thereof to Borrower and shall designate an alternative
index that is reasonably comparable to the LIBO Rate or such
other index; provided, that PCFC's determination under this
Section 6(d)(6) as to Borrower shall be in accordance with its
treatment of other borrowers under commercial loans generally.
In the event that any law, treaty, rule, regulation, or
determination of a court or governmental authority or any change
therein or in the interpretation or application thereof or
compliance by PCFC with any request or directive (whether or not
having the force of law) from any central bank or governmental
authority:
(a) shall subject PCFC to any tax of
any kind whatsoever with respect to any LIBO Rate, or change the
basis of taxation of payments to PCFC of principal, interest or
any other amount payable under this Agreement (except for changes
in the rate of tax on the overall net income of PCFC); or
(b) shall impose, modify, or hold
applicable any reserve, special deposit, compulsory loan, or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, or
other credit extended by, or any other acquisition of funds by,
any office of PCFC; or
(c) shall impose on PCFC any other
condition; and the result of any of the foregoing is to increase
the cost to PCFC of making, renewing, or maintaining any portion
of the Loan with interest rates tied to the LIBO Rate and/or to
reduce any amount receivable by PCFC in connection therewith;
then in any such case, Borrower shall pay to PCFC, immediately
upon demand, such amount or amounts as may be necessary to
compensate PCFC for any additional costs incurred by PCFC and/or
reductions in amounts received by PCFC which are attributable to
LIBO Rates made available to Borrower hereunder. In determining
which costs incurred by PCFC and/or reductions in amounts
received by PCFC are attributable to such LIBO Rates, any
reasonable allocation made by PCFC among its operations shall be
conclusive and binding upon Borrower; provided, that PCFC's
determination under this Section 6(d)(6) as to Borrower is in
accordance with its treatment of other borrowers under commercial
loans generally.
7. Loan Fee. In consideration of PCFC's entering
into this Agreement, Borrower shall pay to PCFC a Loan Fee (the
"Loan Fee") of Seven Thousand Five Hundred Dollars ($7,500). The
Loan Fee shall be due and payable upon the effectiveness of this
Agreement. The full amount of the Loan Fee shall be considered
earned upon receipt and no portion of the Loan Fee shall be
refundable to Borrower under any circumstances.
8. Other Prepayments.
a. Prepayment in Full. Borrower shall have the
right at any time to voluntarily prepay the entire amount of
Tranche A and Tranche B and to terminate this Agreement upon at
least three (3) Business Days notice to PCFC, without premium or
penalty except Borrower shall pay to PCFC a prepayment surcharge
calculated in accordance with Section 8(c). Prepayment in full
shall be accompanied by the payment of all accrued and unpaid
interest and all fees, costs, expenses, and other obligations
owed by Borrower to PCFC under this Agreement.
b. Partial Prepayment of Fixed Rate Obligations.
Borrower shall have the right at any time to voluntarily prepay
any portion of Tranche A bearing interest at a Fixed Rate or any
portion of Tranche B upon at least three (3) Business Days notice
to PCFC, without premium or penalty, except that Borrower shall
pay to PCFC a prepayment surcharge calculated in accordance with
Section 8(c). All voluntary partial prepayments shall be applied
by PCFC as directed by Borrower.
c. Prepayment Surcharge. At the time that
Borrower makes a Prepayment, whether or not such Prepayment is
voluntary on behalf of Borrower and specifically including a
prepayment occurring as the result of an acceleration of the
Loan, Borrower shall simultaneously pay to PCFC, a prepayment
surcharge for each Fixed Rate portion of Tranche A or Tranche B
so prepaid equal any loss of earnings expense attributable to
Fixed Rate funding incurred or projected by PCFC as a result of
such prepayment.
9. Manner and Time of Payment. Borrower shall make
all payments by wire transfer of immediately available funds as
follows:
To:
ABA Routing No.:
Account Name:
Customer Number:
(or to such other account as PCFC may designate by notice).
Borrower shall give PCFC telephonic notice no later than 12:00
noon Pacific Time of its intent to make a wire transfer. Wire
transfers received after 2:00 p.m. Pacific Time shall be credited
on the next business day.
10. Capitalization. Borrower agrees to make such
investments in PCFC as PCFC may from time to time require in
accordance with its bylaws and capital plan. In connection with
the foregoing, the Borrower hereby acknowledges receipt, prior to
the execution of this document, of copies of the following:
Notice Regarding Your Required Investment in this Association,
1995 Annual Report and the Association's Capitalization Plan and
Bylaws. All such investments and all other equities which the
Borrower may now own or hereafter acquire or be allocated in PCFC
shall be subject to a statutory first lien in favor of PCFC to
secure any indebtedness of Borrower to PCFC.
At the option of PCFC, any amounts borrowed to purchase
capital stock or participation certificates, and any amounts
repaid from redemption of such stock or certificates, may be
recorded as part of the loan accounting in the transaction
summary, or in a separate stock or loan account.
A certificate will not be issued for capital stock or
participation certificates, but ownership will be evidenced by
the records of PCFC. THE OWNERSHIP OF THE CAPITAL STOCK OR
PARTICIPATION CERTIFICATES WILL BE REGISTERED ON THE RECORDS OF
PCFC AS FOLLOWS: Maui Land & Pineapple Company, Inc., a Hawaii
Corporation.
Borrower hereby grants to PCFC a security interest in
and lien upon all capital stock and participation certificates as
collateral for the Loan. Upon an Event of Default, PCFC may but
is not required to apply all or part of the proceeds from such
capital stock or participation certificates against the Line.
UNTIL WRITTEN NOTICE OF REVOCATION IS RECEIVED BY PCFC,
__PAUL J. MEYER___ IS AUTHORIZED TO VOTE FOR THE ABOVE-NAMED
BORROWER AND IS AUTHORIZED TO REQUEST THE CONVERSION FROM ONE
CLASS TO ANOTHER OF ALL SHARES OF CAPITAL STOCK WHICH MAY BE
REGISTERED IN THE NAME OF BORROWER.
As required by PCFC's bylaws and the federal income tax
law, Borrower agrees that the amount of any distribution of
patronage made by written notice of allocation to Borrower after
the date of this Agreement will be included in the Borrower's
gross income for the purpose of federal income tax for the year
in which the notice is received.
11. Collateral; No Subordination. The obligations of
Borrower to PCFC hereunder shall be unsecured; provided that
(i) PCFC shall have the lien referred to in Section 10 and any
other liens provided by the Farm Credit Act, and (ii) PCFC shall
have and Borrower hereby grants PCFC a security interest in, all
cash, accounts, securities, investment property, instruments,
documents, or other property of Borrower that is in PCFC's
possession or under its control. The obligations of Borrower to
PCFC under this Agreement shall constitute senior indebtedness
and are not subordinate in payment or priority to any other
obligations of Borrower.
12. Representations and Warranties. Borrower
represents and warrants to PCFC that, except as may be set forth
in the disclosure schedule referred to in Exhibit A (the
"Disclosure Schedule") or in a subsequent written disclosure to
PCFC, each of the following statements is true and correct on the
date hereof and shall also be true and correct on the date that
Borrower requests an advance under Tranche A or a conversion
under Tranche B:
a. Corporate Existence; Compliance with Law and
Agreements. Borrower and each Guarantor (i) are corporations
duly organized, validly existing and in good standing under the
laws of the State of Hawaii; (ii) are duly qualified as foreign
corporations and in good standing under the laws of each
jurisdiction where their ownership or lease of property or the
conduct of their businesses require such qualification (except
for jurisdictions in which such failure to so qualify or to be in
good standing would not have a Material Adverse Effect);
(iii) have the requisite corporate power and authority and the
legal right to own, pledge, mortgage, or otherwise encumber and
operate all real property that they own, to lease the real
property they operate under lease, and to conduct their
businesses as now, heretofore, and proposed to be conducted;
(iv) have all material licenses, permits, consents, or approvals
from or by, and have made all material filings with, and have
given all material notices to, all governmental authorities
having jurisdiction, to the extent required for such ownership,
operation, and conduct; (v) are in compliance with their articles
or certificates of incorporation and by-laws; (vi) are in
compliance with all applicable provisions of law where the
failure to comply would have a Material Adverse Effect, and
(vii) are not in default, and, to Borrower's knowledge, no third
party is in default, under or with respect to any contract,
agreement, lease or other instrument to which Borrower or any
Guarantor is a party which default in each case or in the
aggregate would have a Material Adverse Effect.
b. Corporate Power; Authorization; Enforceable
Obligations. The execution, delivery, and performance by
Borrower of the Agreement, and any Other Documents to which
Borrower is a party, and by each Guarantor of such Guarantor's
Guaranty Agreement: (i) are within Borrower's or such Guarantor's
corporate power; (ii) have been duly authorized by all necessary
or proper corporate action; (iii) are not in contravention of any
provision of Borrower's or such Guarantor's articles of or
certificate of incorporation or by-laws; (iv) will not violate
any law or regulation, or any order or decree of any court or
governmental instrumentality; (v) will not conflict with or
result in the breach or termination of, constitute a default
under or accelerate any performance required by, any material
indenture, mortgage, deed of trust, lease, agreement or other
instrument to which Borrower or any Guarantor is a party or by
which Borrower or any Guarantor or any of Borrower's or any
Guarantor's property is bound; (vi) will not result in the
creation or imposition of any lien upon any of the property of
Borrower or any Guarantor; and (vii) do not require the consent
or approval of any governmental authority or any other Person,
except for consents or approvals which have been duly obtained,
made, or complied with. This Agreement constitutes a legal,
valid, and binding obligation of Borrower enforceable against it
in accordance with its terms except for general principles of
equity and the effect of bankruptcy, insolvency, and other laws
affecting the rights of creditors generally.
c. Financial Statements and Condition;
Disclosure. The financial statements listed in Exhibit A and all
financial statements delivered by Borrower to PCFC pursuant to
Section 13(g) (i) fairly present in all material respects the
financial position of Borrower as of the dates specified in such
financial statements, (ii) have been prepared in accordance with
GAAP, consistently applied throughout the periods involved except
as set forth in the notes thereto (subject, in the case of any
interim financial statements, to normal year-end adjustments),
and (iii) do not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances
under which they were made. There has been no material adverse
change in the financial condition, operations, business,
properties or prospects of Borrower since the date of such
financial statements except changes that individually or in the
aggregate could not reasonably be expected to have a Material
Adverse Effect. There is no fact or circumstance known to
Borrower that could reasonably be expected to have a Material
Adverse Effect. Borrower is solvent and will continue to be
solvent after giving effect to the transactions contemplated by
this Agreement. There is no action, claim or proceeding now
pending or, to Borrower's knowledge, threatened against Borrower
before any court, board, commission, agency, or instrumentality
of any federal, state, or local government or of any agency or
subdivision thereof, or before any arbitrator or panel of
arbitrators, which, if determined adversely, could have a
Material Adverse Effect.
d. Taxes. Borrower and each Guarantor have
filed all tax returns that are required to have been filed in any
jurisdiction and has paid all taxes shown to be due and payable
on such returns and all other taxes and assessments levied upon
it or its properties, assets, income or franchises, to the extent
such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments
(i) the amount of which is not individually or in the aggregate
material or (ii) the amount, applicability or validity of which
is currently being contested in good faith by appropriate
proceedings and with respect to which Borrower or such Guarantor
has established adequate reserves in accordance with GAAP.
Borrower knows of no basis for any other tax or assessment that
could reasonably be expected to have a Material Adverse Effect.
e. Licenses; Permits; Intellectual Property
Rights. Borrower and each Guarantor own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service
marks, trademarks and trade names, or rights thereto, that
individually or in the aggregate are necessary to the conduct of
Borrower's or such Guarantor's business, without known conflict
with the rights of others. To the best knowledge of Borrower, no
product of Borrower or any Guarantor infringes in any material
respect any license, permit, franchise, authorization, patent,
copyright, service xxxx, trademark and trade name or other right
owned by any other Person. To the best knowledge of Borrower,
there is no Material violation by any Person of any right of
Borrower or Guarantor with respect to any patent, copyright,
service xxxx, trademark and trade name or other right owned by
Borrower or any Guarantor.
f. Labor Matters. There are no strikes or other
labor disputes against Borrower or any Guarantor that are pending
or, to Borrower's knowledge, threatened which would have a
Material Adverse Effect. All payments due from Borrower or any
Guarantor on account of employee health and welfare insurance
which would have a Material Adverse Effect if not paid have been
paid or accrued as a liability on the books of Borrower or such
Guarantor.
g. Investment Company Act. Neither Borrower nor
any Guarantor is an "investment company" or an "affiliated
Person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
h. Margin Regulations. Neither Borrower nor any
Guarantor owns any "margin security", as that term is defined in
Regulations G and U of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board").
i. ERISA. Each Plan is in compliance in all
material respects with the applicable provisions of ERISA and the
Internal Revenue Code ("IRC") and with respect to each Plan,
other than a Qualified Plan, all required contributions and
benefits have been paid in accordance with the provisions of each
such Plan to the extent that the failure to pay any such
contribution or benefit would have a Material Adverse Effect.
There are no pending or, to Borrower's knowledge, threatened
claims, actions or lawsuits (other than claims for benefits in
the normal course), asserted or instituted against Borrower or
any Guarantor or any Plan or its assets. Neither Borrower, any
Guarantor, nor any ERISA Affiliate of either has incurred or
reasonably expects to incur any Withdrawal Liability under
Section 4201 of ERISA as a result of a complete or partial
withdrawal from a Multiemployer Plan. Neither Borrower nor any
Guarantor has engaged in a prohibited transaction, as defined in
Section 4975 of the IRC or Section 406 of ERISA, in connection
with any Plan, which would subject Borrower or such Guarantor
(after giving effect to any exemption) to a material tax on
prohibited transactions imposed by Section 4975 of the IRC or any
other material liability. As used above, the term "Plan" shall
mean, with respect to Borrower or any Guarantor or any ERISA
Affiliate of either, at any time, an employee benefit plan, as
defined in Section 3(3) of ERISA, which Borrower maintains,
contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by any of them. The terms
"Qualified Plan" and "Multiemployer Plan" shall have the meaning
given them in ERISA.
j. Brokers. No broker or finder acting on
behalf of Borrower or any Guarantor brought about the obtaining,
making, or closing of the Loan and neither Borrower nor any
Guarantor nor PCFC have any obligation to any Person in respect
of any finder's or brokerage fees in connection with the Loan.
13. Affirmative Covenants. Unless otherwise agreed to
in writing by PCFC, while this agreement is in effect whether or
not any indebtedness is outstanding hereunder, Borrower agrees
to, and, except with respect to the covenant contained in
Section 13(a), to cause each Guarantor to:
a. Eligibility. Maintain its status as an
entity eligible to borrow from PCFC.
b. Corporate Existence. Preserve and keep in
full force its corporate status, existence and good standing in
the jurisdiction of its organization, its qualifications to
transact business in all places required by law, and all
licenses, certificates, permits, authorizations, approvals and
the like which are material to the conduct of its business or
required by law.
c. Compliance with Laws. Comply in all material
respects with all applicable federal, state, and local laws,
rules, regulations, ordinances, codes, and orders (collectively
"Laws"). Without limiting the foregoing, Borrower agrees to
comply in all material respects, and to cause all Guarantors and
all Persons occupying or present on any properties of Borrower or
any Guarantor to so comply, with all Laws relating to
environmental protection.
d. Property Maintenance. Maintain all of its
property that is necessary to or useful in the proper conduct of
its business in good working condition, ordinary wear and tear
excepted.
e. Books and Records. Keep adequate records and
books of account in which complete entries will be made in
accordance with past practices.
f. Inspection. Permit PCFC or its agents,
during normal business hours or at such other times as the
parties may agree, to examine Borrower's or any Guarantor's
properties, books, and records, and to discuss Borrower's or any
Guarantor's affairs, finances, and accounts with its respective
officers, directors, employees, and independent certified public
accountants.
g. Reports and Notices. Furnish to PCFC:
(1) Annual Financial Statement. As soon as
possible, but in no event later than 90 days after the end of any
Fiscal Year of Borrower occurring during the term hereof, annual
financial statements of Borrower prepared in accordance with GAAP
consistently applied. Such financial statements shall: (i) be
audited by independent certified public accountants selected by
Borrower and acceptable to PCFC, (ii) be accompanied by a report
of such accountants containing an opinion acceptable to PCFC;
(iii) be prepared in reasonable detail and in comparative form;
and (iv) include a balance sheet, a statement of income, a
statement of retained earnings, a statement of all cash flows and
all notes and schedules relating thereto;
(2) Quarterly Financial Statements. No
later than 60 days after the end of each Fiscal Quarter,
internally prepared quarterly financial statements containing the
same information as the annual financial statement, accompanied
by a compliance certificate from Borrower's chief financial
officer, in the form attached hereto as Exhibit B, certifying
that as of the date of such financial statement there did not
exist a Default or Event of Default under this Agreement.
(3) Annual Budget and Cash Flow Forecast.
By November 30 of each year, a capital expenditures budget for
the forthcoming Fiscal Year and a rolling five-year plan for the
forthcoming five-year period and, within 90 days after the start
of each Fiscal Year, an annual budget and cash flow forecast for
such Fiscal Year, all in such detail as PCFC shall reasonably
request.
(4) Notice of Default. Promptly after
becoming aware thereof, notice of the occurrence of a Default or
Event of Default.
(5) Tax Returns. Within 14 days after
filing of such tax returns, a copy of such portions of every
federal income tax return filed by Borrower as are necessary to
enable PCFC to verify Borrower's calculations of Adjusted Gains
on Asset Sales and, if requested by PCFC, a copy of the entire
tax return.
(6) Notice of Non-Environmental Litigation.
Promptly after the commencement thereof, notice of the
commencement of all actions, suits, or proceedings before any
court, arbitrator, or governmental department, commission, board,
bureau, agency, or instrumentality affecting Borrower or any
Guarantor which, if determined adversely to Borrower or such
Guarantor, could have a Material Adverse Effect.
(7) Notice of Environmental Litigation, Etc.
Promptly after receipt thereof, notice of the receipt of all
pleadings, orders, complaints, indictments, or any other
communication alleging a condition that may require Borrower or
Guarantor to undertake or to contribute to a cleanup or other
response under environmental laws, or which seeks penalties,
damages, injunctive relief, or criminal sanctions related to
alleged violations of such Laws, or which claims personal injury
or property damage to any Person as a result of environmental
factors or conditions.
(8) Other Information. Such other
information regarding the condition or operations, financial or
otherwise, of Borrower or any Guarantor as PCFC may, from time to
time, reasonably request.
h. Insurance. At Borrower's sole cost and
expense, maintain insurance providing for the following types of
coverages in at least the following amounts: (i) "All Risk"
physical damage insurance on all of Borrower's tangible real and
personal property and assets, (ii) difference in conditions
coverage including loss due to earthquake and flood for cannery
finished goods, inventory, to a limit of Five Million Dollars
($5,000,000) per occurrence and in the aggregate and subject to a
deductible of ten percent (10%) per location, per occurrence,
(iii) comprehensive general liability insurance on an "occurrence
basis" against claims for personal injury, bodily injury and
property damage with a minimum limit of One Million Dollars
($1,000,000) per occurrence and Two Million Dollars ($2,000,000)
in the aggregate, which coverage shall include
premises/operations, broad form contractual liability,
underground, explosion and collapse hazard, independent
contractors, broad form property coverage, products and completed
operations liability, (iv) statutory limits of worker's
compensation insurance which includes employee's occupational
disease and employer's liability in the amount of One Million
Dollars ($1,000,000) for each accident or occurrence,
(v) automobile liability insurance for all owned, non-owned or
hired automobiles against claims for personal injury, bodily
injury, and property damage with a minimum combined single limit
of One Million Dollars ($1,000,000) per occurrence; and
(vi) umbrella insurance of Fifty Million Dollars ($50,000,000)
per occurrence and Fifty Million Dollars ($50,000,000) in the
aggregate.
All of such policies shall at all times remain in full
force and effect and in form and with insurers recognized as
adequate by PCFC, and provide coverage of such risks and for such
amounts as are customarily maintained for businesses of the scope
and size of Borrower's and Guarantor's and as otherwise
acceptable to PCFC. PCFC reserves the right at any time, upon a
review of Borrower's and the Guarantors' risk profile, to require
additional forms and limits of insurance. Borrower shall, if
requested by PCFC, provide PCFC with a report of Borrower's
insurance broker concerning Borrower's and the Guarantors'
insurance policies.
i. Resolutions. No later than May 15, 1997,
deliver to PCFC a certificate of the corporate secretary of each
Guarantor, certifying that the board of directors of each
Guarantor have adopted a corporate resolution ratifying such
Guarantor's execution of its Guaranty and having a copy of such
resolution attached to the certificate.
14. Negative Covenants. Unless otherwise agreed to in
writing by PCFC, while this agreement is in effect, Borrower will
not, and will not permit any Guarantor to:
a. Mergers, Acquisitions, Etc.
(1) Merge or consolidate with any other
entity, or acquire all or substantially all of the assets of any
Person or entity, or commence operations under any other name.
(2) Acquire all or substantially all of the
assets of any Person or entity, form or create any new Subsidiary
or Affiliate, or enter into any business venture, including any
joint venture, partnership, or limited liability company;
provided that PCFC's consent to any of the foregoing shall not be
unreasonably withheld and provided that Borrower and the
Guarantors may take such actions without prior consent from PCFC
so long as the aggregate investment made by Borrower and all
Guarantors in all such transactions after December 31, 1996 shall
not exceed Ten Million Dollars ($10,000,000).
b. Transfer of Assets. Sell, transfer, lease,
or otherwise dispose of any of its assets, except (i) in the
ordinary course of Borrower's or such Guarantor's business,
(ii) transactions outside the ordinary course transactions, but
only to the extent that the aggregate amount of all assets
involved in such transactions from and after the date of this
Agreement have a fair market value of less than Five Million
Dollars ($5,000,000), (iii) disposal of worn out or obsolete
assets, (iv) disposal of equipment that is being replaced by
equipment having a similar value or serving a similar function,
and (v) the transaction referred to as the "Option Agreement
granted to Lend Lease (U.S.) Inc." on Part C of the Disclosure
Schedule; provided that each such transaction referred to in this
Section 14(b) shall be at arm's length and for fair market value.
c. Change in Business. Engage in any business
activities or operations substantially different from or
unrelated to Borrower's or such Guarantor's present business
activities or operations.
d. Liens. Create or permit any Lien on any of
its properties or assets except for Permitted Encumbrances.
e. Indebtedness. Incur any Indebtedness if
after such Indebtedness is incurred the aggregate amount of all
Indebtedness of Borrower and its Subsidiaries shall exceed Forty-
Five Million Dollars ($45,000,000).
f. Capital Expenditures. Make Capital
Expenditures or Investments, other than Capital Expenditures for
or Investments in Borrower's "Kaahumanu Center Associates"
Subsidiary, in excess of Ten Million Dollars ($10,000,000) during
1997 and Nine Million Dollars ($9,000,000) in any Fiscal Year
thereafter.
g. Loans. Make or accrue any loan or advance of
money to any Person or entity, through the direct or indirect
holding of securities or otherwise, if doing so would cause the
aggregate of all such loans or advances, other than loans set
forth in the Disclosure Schedule referred to in Exhibit A, to
exceed One Million Dollars ($1,000,000); provided that, in
addition to the foregoing, Borrower and each Guarantor shall be
permitted to extend purchase money financing to persons
purchasing real property from Borrower or such Guarantor so long
as (i) Borrower or such Guarantor has received at least twenty
percent (20%) of the purchase price in cash, (ii) the financing
does not exceed One Million Dollars ($1,000,000) in any
particular transaction, and (iii) all such financing extended
after December 31, 1996 does not exceed Five Million Dollars
($5,000,000) in the aggregate.
h. Restricted Payments. Make any Restricted
Payments unless each and every one of the following conditions
has been fulfilled: (i) no Default or Event of Default then
exists or has occurred within the twelve (12) month period
preceding the making of such Restricted Payment nor shall a
Default or Event of Default occur from the making of such
Restricted Payment, (ii) the amount of the Restricted Payment,
together with the aggregate amount of all other Restricted
Payments made during such Fiscal Year, shall not exceed the "Debt
Coverage Ratio Cushion" (as defined below) for such year,
(iii) the amount of the Restricted Payment, together with the
aggregate amount of all other Restricted Payments made during
such Fiscal Quarter, would not, if such amounts were to
subtracted from Borrower's Tangible Net Worth for the preceding
Fiscal Quarter, have caused Borrower's Tangible Net Worth for
such Fiscal Quarter to have been less than the minimum required
by Section 14(j)(1), (iv) the amount of the Restricted Payment,
together with the aggregate amount of all other Restricted
Payments made during such Fiscal Year, shall not exceed the
"Annual Distribution Amount" (as defined below) for such year;
provided that if in any Fiscal Year, commencing with the Fiscal
Year ending December 31, 1997, Borrower makes Restricted Payments
that are less than the Annual Distribution Amount for such Fiscal
Year, such unused portion may be carried forward and distributed
during a subsequent year (provided that all of the conditions set
forth in this Section 14(h) have been fulfilled).
As used in this Section 14(h), the following terms
shall have the following meanings:
"Annual Distribution Amount" shall mean, for any
particular Fiscal Year, thirty percent (30%) of the lesser
of (A) Borrower's Consolidated Net Income for the preceding
Fiscal Year, and (B) the amount, if any, by which Borrower's
Consolidated Cash Flow for the preceding Fiscal Year
exceeded Borrower's Consolidated Debt Service for such
preceding Fiscal Year.
"Debt Coverage Ratio Cushion" shall mean, for any
particular year, the amount (if any) by which Borrower's
Consolidated Cash Flow for the preceding Fiscal Year
exceeded one hundred fifteen percent (115%) of Borrower's
Consolidated Debt Service for such preceding Fiscal Year.
i. Transactions with Affiliates. Enter into any
transaction or arrangement with any Affiliate, or permit any
Subsidiary to enter into any transaction or arrangement with any
Affiliate of it, (including the purchase from, sale to, or
exchange of property with, or the rendering of any service by or
for any Affiliate) except (i) in the ordinary course of business
and upon fair and reasonable terms and that are no less favorable
to Borrower than would be obtained in a comparable arms-length
transaction with a Person not an Affiliate, and (ii) the
transaction referred to as the "Option Agreement Granted to Lend
Lease (U.S.) Inc." on Part C of the Disclosure Schedule.
j. Financial Covenants.
(1) Minimum Tangible Net Worth.
(a) Borrower shall not permit its
Consolidated Tangible Net Worth, as of the last day of each
Fiscal Quarter ending after the date hereof through and including
the quarter ending September 30, 1997 to be less than Fifty Seven
Million Dollars ($57,000,000).
(b) Borrower shall not permit its
Consolidated Tangible Net Worth, as of the last day of each
Fiscal Quarter beginning with the Fiscal Quarter ending
December 31, 1997, to be less than the sum of (i) Fifty Seven
Million Dollars ($57,000,000) plus (ii) fifty percent (50%) of
the aggregate total of Borrower's Consolidated Net Income for
Borrower's Fiscal Year ending December 31, 1997 and fifty percent
(50%) of Borrower's Consolidated Net Income for each and every
Fiscal Year thereafter. In making such calculations, (i) the
amount of Consolidated Net Income shall not be reduced by the
amount, if any, of any Consolidated Net Loss incurred in any
particular Fiscal Year, and (ii) the quarterly financial
statement delivered by Borrower pursuant to Section 13(g)(2)
shall be used initially, but shall be superseded by the audited
financial statement required by Section 13(g)(1) when such
financial statement is delivered by Borrower to PCFC.
(2) Current Ratio. Borrower shall not
permit the ratio of (i) Consolidated Current Assets to
(ii) Consolidated Current Liabilities, as of the last day of each
Fiscal Quarter ending after the date hereof and continuing
through the Tranche B Maturity Date to be less than 1.90 to 1.00.
(3) Debt Coverage Ratio. Commencing with
the Fiscal Year ending December 31, 1996 and continuing through
the Tranche B Maturity Date, Borrower shall not permit the
Consolidated Debt Coverage Ratio for any Fiscal Year to be less
than 1.15 to 1.00.
15. Events of Default. Each of the following shall
constitute an "Event of Default" hereunder:
a. Payment Default. Failure by Borrower to make
any payment of principal or interest required to be made under
this Agreement on the date when due or failure to pay any other
amount owed to PCFC hereunder on the date when due.
b. Representations and Warranties. Any
representation or warranty made by Borrower herein or in any
agreement, certificate, or document related hereto or furnished
in connection herewith, or by any Guarantor in any Guaranty
Agreement or in any agreement, certificate, or document related
to such Guaranty Agreement, shall prove to have been false or
misleading in any material respect on or as of the date made.
c. Other Covenants and Agreements. Borrower
fails to perform or comply with any covenant or agreement
contained in this Agreement (other than those referred to in
Section 15(a)) or any Guarantor fails to perform or comply with
any covenant or agreement contained in any Guaranty Agreement;
provided that if such failure is by its nature capable of being
cured, then such failure shall not become an Event of Default
unless such failure remains uncured for fifteen (15) days.
d. Other Indebtedness. Borrower or any
Guarantor shall fail to pay when due any Indebtedness for
borrowed money or any other event occurs which, under any
agreement or instrument relating to such Indebtedness, has the
effect of accelerating or permitting the acceleration of such
Indebtedness, whether or not such Indebtedness is actually
accelerated.
e. Judgments. A judgment, decree, or order for
the payment of money shall be rendered against Borrower or any
Guarantor and either: (i) enforcement proceedings shall have
been commenced; or (ii) such judgment, decree, or order shall
continue unsatisfied and in effect for a period of twenty (20)
consecutive days without being vacated, discharged, satisfied, or
stayed pending appeal.
f. Insolvency, Etc. Borrower or any Guarantor:
(i) shall become insolvent or shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its
debts as they come due; or (ii) shall suspend its business
operations or a material part thereof or make an assignment for
the benefit of creditors; or (iii) shall apply for, consent to,
or acquiesce in the appointment of a trustee, receiver, or
custodian for it or any of its property; or (iv) shall commence
or have commenced against it any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution,
or liquidation law or statute of any jurisdiction.
g. Material Adverse Change. Any material
adverse change occurs, as reasonably determined by PCFC, in
Borrower's financial condition, results of operation or ability
to perform its obligations under this Agreement.
16. Remedies Upon Events of Default. Upon the
occurrence of and during the continuance of each and every Event
of Default:
a. Termination of Rights; Acceleration. PCFC
may, without notice to Borrower, suspend Borrower's right to
receive advances of Tranche A or to convert advances under
Tranche A to Tranche B and declare the entire unpaid principal
balance under this Agreement, all accrued interest thereon and
all other amounts payable under this Agreement, to be immediately
due and payable. Upon such a declaration, the unpaid principal
balance under this Agreement and all such other amounts shall
become immediately due and payable, without protest, presentment,
demand, or further notice of any kind, all of which are hereby
expressly waived by Borrower.
b. Enforcement. PCFC may proceed to protect
exercise, and enforce such rights and remedies as may be provided
by this Agreement, by any Guaranty Agreement, or under law, each
and every one of such rights and remedies shall be cumulative and
may be exercised from time to time, and no failure on the part of
PCFC to exercise, and no delay in exercising, any right or remedy
shall operate as a waiver thereof, or the exercise of any other
right. Without limiting the foregoing, PCFC may, as provided in
the Farm Credit Act of 1971, as amended, retire and cancel all or
any portion of Borrower's stock or other equities in PCFC and
apply the proceeds thereof against Borrower's indebtedness to
PCFC. In addition, PCFC may hold, set off, sell, and/or apply
against Borrower's indebtedness any and all cash, accounts,
securities, instruments, documents, or other property in PCFC's
possession or under its control.
c. Application of Funds. All amounts received
by PCFC shall be applied to amounts owing under this Agreement in
such order and manner as PCFC may in its sole discretion elect.
17. Complete Agreement; Amendments. This Agreement
and all documents and instruments contemplated hereby are
intended by the parties to be a complete and final expression of
their agreement. No amendment, modification, or waiver of any
provision hereof or thereof, nor any consent to any departure of
Borrower herefrom or therefrom, shall be effective unless
approved by PCFC and contained in a writing signed by or on
behalf of PCFC and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
18. Applicable Law. Except to the extent governed by
applicable federal law, this Agreement shall be governed and
construed in accordance with the laws of the State of California,
without reference to choice of law doctrine.
19. Notices. All notices hereunder shall be in
writing and shall be deemed to be duly given upon delivery, if
personally delivered or sent by telegram or facsimile
transmission, or three (3) days after mailing if sent by express,
certified or registered mail, to the parties at the following
addresses (or such other address for a party as shall be
specified by like notice):
If to PCFC as follows:
Pacific Coast Farm Credit Services, ACA
0000 Xxxxx Xxxxxxxx
Xxxxxx, XX 00000
Attn: Account Officer -- Maui Land & Pineapple
Fax No.: (000) 000-0000
and to
Pacific Coast Farm Credit Services, ACA
0000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Attn: Account Officer -- Maui Land & Pineapple
Fax No.: (000) 000-0000
If to Borrower, as follows;
Maui Land & Pineapple Company, Inc.
XX Xxx 000, Xxxxxxx, Xxxxxx 00000-0000
Attn: Executive Vice President-Finance
Fax No.: (000) 000-0000
20. Costs and Expenses. Borrower shall pay all costs
incurred by PCFC, including reasonable attorneys fees, in
connection with the preparation for, negotiation of, and
documentation of this Agreement, the Other Documents, and any
Guaranty Agreement. If in the future PCFC shall employ the
services of legal counsel or any other professional or any third
party in connection with (i) any request made by Borrower to PCFC
for a modification, amendment, waiver, or consent in connection
with this Agreement, any Other Document, or any Guaranty
Agreement, (ii) rendering advice or other services to PCFC
regarding PCFC's rights or obligations under this Agreement or
any Other Document or any Guaranty Agreement, whether or not an
Event of Default has occurred, (iii) representing the interests
of PCFC in any judicial or nonjudicial action, suit or proceeding
instituted by PCFC or any other Person connected with or related
to or with reference to the Loan or to reclaim, seek relief from
a judicial or statutory stay, sequester, protect, preserve or
enforce PCFC's interests, then in such event Borrower promises to
pay reasonable attorney's fees and reasonable costs and expenses
incurred by PCFC and/or its attorney in connection with the above-
mentioned events. Such amounts shall be payable upon demand.
21. Effectiveness; Severability. This Agreement shall
continue in effect until all indebtedness and obligations of
Borrower hereunder shall have been repaid and all commitments of
PCFC hereunder have terminated. Any provision of this Agreement
or of any instrument or document contemplated hereby which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or thereof.
22. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of Borrower and PCFC and
their respective successors and assigns except that Borrower may
not assign or transfer its rights or obligations hereunder
without the prior written consent of PCFC. PCFC may assign all
or any portion of its obligations under this Agreement without
prior notice to Borrower and such assignment shall relieve PCFC
of any future obligations hereunder. PCFC may grant or sell
participation interests in its interests under this Agreement
without notice to Borrower.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized officers as of the date
shown above.
BORROWER:
MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii Corporation
By: _/S/ XXXX X. MEYER____________________
Title:__EXECUTIVE VICE PRESIDENT/FINANCE___
By: __/S/ XXXX X. GIFFORD__________________
Title:__PRESIDENT__________________________
PCFC:
PACIFIC COAST FARM CREDIT SERVICES, ACA
By: __/S/ XXXX X. O'DAY____________________
Xxxx X. O'Day, Regional Vice-President
EXHIBIT A
List of Required Documents
1. Promissory Note.
2. Membership Application.
3. Interest Rate Disclosure Statement.
4. Financial Statements:
a. Annual report for years 1993,
1994, and 1995.
b. Form 10-K for years 1993,
1994, and 1995.
c. Draft of annual report and
Form 10-K for 1996.
d. 1996 Earnings Release.
5. 1997 Budget and Cash Flow Forecast.
6. Subordination Agreements from the
following entities: None.
7. Continuing Guaranty Agreements from the
following entities:
a. Maui Pineapple Company, Ltd.
b. Kapalua Land Company, Ltd.
8. Corporate authority documents:
a. Certificate of corporate
secretary of Borrower.
b. Certificate of corporate
secretary of Maui Pineapple Company, Ltd.
c. Certificate of corporate
secretary of Kapalua Land Company, Ltd.
9. Opinion of counsel to Borrower and each
Guarantor.
10. Disclosure Schedule setting forth:
a. Any exceptions to
representations and warranties.
b. Existing loans made by
Borrower to third parties.
c. Permitted Encumbrances.
d. All subsidiaries owned by
Borrower and all partnerships and joint
ventures in which Borrower is engaged.
