1999 LOAN MODIFICATION AGREEMENT
THIS AGREEMENT dated as of December 30, 1999, 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") (BOH, FHB and CPB 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 in the Loan
Documents described below and in the Agency Agreement
described in the Loan Agreement described below (in
such capacity, the "Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and Bank of
America, National Trust and Savings Association ("BOA")
(the Lenders and BOA are collectively called the "Original
Lenders") and the Agent are parties to that certain
Revolving and Term Loan Agreement, dated as of December
31, 1992, as amended by a First Loan Modification
Agreement, dated as of March 1, 1993, and
supplemented by letter agreements dated April 30, 1993 and
June 24, 1993, and further amended by Second
Loan Modification Agreement, dated September 8, 1993, by a
Third Loan Modification Agreement, dated September 30, 1993,
by a Fourth Loan Modification Agreement, dated March 8, 1994,
by a Fifth Loan Modification Agreement, dated effective as
of December 31, 1994, by a Sixth Loan Modification Agreement,
dated effective as of March 31, 1995, and by a Seventh
Loan Modification Agreement dated effective as of
December 31, 1995, each among the Borrower, the Original
Lenders and the Agent (as so amended and
supplemented, the "Original Loan Agreement");
WHEREAS, the Original Loan Agreement and the other
"Loan Documents" referred to therein, as respectively amended,
set forth the terms and conditions upon which the Original
Lenders (i) have made available to the Borrower the Revolving
Loans in the original aggregate principal amount of up to
$40,000,000 at any one time outstanding (subject to
mandatory reduction, from time to time, of such aggregate
principal amount available) and (ii) shall make available
to the Borrower the Term Loans in an amount up to
the aggregate principal amount of the Revolving
Loans outstanding upon expiration of the Revolving Loan
Period, all as more particularly described therein;
WHEREAS, the parties hereto entered into that
certain Amended and Restated Revolving Credit and Term
Loan Agreement dated December 4, 1996, as amended by
letter agreement dated February 21, 1997, by First Loan
Modification Agreement dated December 31, 1997, and by
Second Loan Modification Agreement dated March 17, 1998 (as
so amended, the "First Restatement");
WHEREAS, the parties hereto entered into that
certain Amended and Second Restated Revolving Credit
and Term Loan Agreement dated as of December 4, 1998
("Second Restatement") to, among other things, establish a
development line in the aggregate principal amount of
$15,000,000, being the Village Course Facility more
particularly described in the Second Restatement;
WHEREAS, the Lenders having purchased the interests of
BOA under the Original Loan Agreement and the other
Loan Documents referred to therein (the "BOA Purchase"),
and BOH having purchased a portion of the interest of FHB under
the Original Loan Agreement, as amended by the First Restatement
and by the Second Restatement (the Original Loan Agreement as the
same has been and may hereafter be amended, the "Loan
Agreement"), and under the other Loan Documents referred to
in the Loan Agreement, the respective "Individual Loan
Commitment Percentage" of each Lender is now as follows:
(1) BOH's Individual Loan Commitment Percentage is
equal to 53.667% with respect to the Original Facility
and 50% with respect to the Village Course Facility;
(2) FHB's Individual Loan Commitment Percentage is
equal to 33.333% with respect to the Original Facility and
33.333% with respect to the Village Course Facility; and
(3) CPB's Individual Loan Commitment Percentage is
equal to 13% with respect to the Original Facility and
16.667% with respect to the Village Course Facility;
WHEREAS, the Aggregate Loan Commitment with respect to
the Original Facility having been reduced to
$15,000,000, the respective Individual Loan Commitments of
the Lenders are as follows:
(1) BOH's Individual Loan Commitment is equal to
$8,050,000 with respect to the Original Loan Facility,
subject to further permanent reduction from time to time
in accordance with the terms of the Loan Agreement, and
$7,500,000 with respect to the Village Course Facility;
(2) FHB's Individual Loan Commitment is equal to
$5,000,000 subject to further permanent reduction from
time to time in accordance with the terms of the Loan
Agreement, and $5,000,000 with respect to the Village
Course Facility; and
(3) CPB's Individual Loan Commitment is equal
to $1,950,000, subject to further permanent reduction from
time to time in accordance with the terms of the Loan
Agreement, and $2,500,000 with respect to the Village
Course Facility; and
WHEREAS, Borrower has requested a further
modification of the Loan Documents and Lenders are
willing to accommodate such modification under the terms of
this Agreement;
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 as follows:
1. The Loan Documents are amended to conform to the
following:
(a) Expiry Date - Revolving Loans. The Expiry
Date is extended from December 31, 1999, to December 31, 2001.
(b) Maturity Date - Term Loans. The Maturity Date
is extended from December 31, 2002, to December 31, 2004.
(c) Village Course Facility Maturity Date. The
Village Course Facility Maturity Date is extended from
December 11, 2000, to December 11, 2001.
(d) Reduction of Aggregate Loan Commitment --
Village Course Facility.
(i) Effective December 11, 2000, the
Aggregate Loan Commitment with respect to the Village Course
Facility will be reduced to $8,000,000.
(ii) On or before December 11, 2000, Borrower
shall pay the amount, if any, by which the outstanding principal balance
of the Village Course Facility exceeds $8,000,000.
(iii) Upon such reduction of the Aggregate Loan
Commitment with respect to the Village Course Facility, Bank of
Hawaii's Individual Loan Commitment with respect to the
Village Course Facility shall be $4,000,000, First Hawaii
Bank's Individual Loan Commitment with respect to the
Village Course Facility shall be $2,666,640 and Central
Pacific Bank's Individual Loan Commitment with respect to
the Village Course Facility shall be $1,333,360.
(e) Interest Rate - Revolving Loans. Outstanding balances
of principal of the Revolving Loans during the Revolving Loan
Period shall bear interest at either of the following interest rate
options that Borrower may select in accordance with the terms of
the Loan Agreement (1) a floating rate equal to the Base Rate in
effect from time to time or (2) LIBOR, plus:
(i) if Borrower's Recourse Debt to Net Worth Ratio
is less than or equal to 0.20, one and one-half percentage points
(1.50%);
(ii) if Borrower's Recourse Debt to Net Worth Ratio is greater
than 0.20 but not more than 0.40, one and three-fourths
percentage points (1.75%);
(iii) if Borrower's Recourse Debt to Net Worth Ratio is
greater than 0.40 but not more than 0.60, two percentage points (2.00%);
(iv) if Borrower's Recourse Debt to Net Worth Ratio
is greater than 0.60 but not more than 0.80,two and one-fourth percentage
points (2.25%); and
(v) if Borrower's Recourse Debt to Net Worth Ratio
is greater than 0.80, two and one-half percentage points (2.50%).
(f) Interest Rate - Term Loans. In the event that the
Term Loans shall be made, then during the period (the "Term
Loan Period") commencing on the Expiry Date, to and including the
date that the Term Loans are paid in full, at the option of
the Borrower initially either (i) a floating rate per annum equal
to the Base Rate in effect from time to time, or (ii) LIBOR, plus:
(i) if Borrower's Recourse Debt to Net Worth Ratio
is less than or equal to 0.20, one and three-fourths
percentage points
(1.75%);
(ii) if Borrower's Recourse Debt to Net Worth Ratio is
greater than 0.20 but not more than 0.40, two percentage points (2.00%);
(iii) if Borrower's Recourse Debt to Net Worth Ratio is
greater than 0.40 but not more than 0.60, two percentage and one
fourth points (2.25%);
(iv) if Borrower's Recourse Debt to Net Worth Ratio
is greater than 0.60 but not more than 0.80, two and one-half percentage
points (2.50%); and
(v) if Borrower's Recourse Debt to Net Worth Ratio
is greater than 0.80, two and three-fourths percentage points (2.75%).
(g) Interest Rate - Village Course Facility Advances.
The Borrower agrees to pay interest on the outstanding
principal balance of the Advances pursuant to the following
interest rate options that the Borrower may select in
accordance with the provisions of the Loan Agreement: (1) a
floating rate equal to the Base Rate in effect from time to time;
or (2) LIBOR plus:
(i) if Borrower's Recourse Debt to Net Worth Ratio
is less than or equal to 0.20, one and one-half percentage points
(1.50%);
(ii) if Borrower's Recourse Debt to Net Worth Ratio
is greater than 0.20 but not more than 0.40, one and three-fourths
percentage points (1.75%);
(iii) if Borrower's Recourse Debt to Net Worth Ratio is
greater than 0.40 but not more than 0.60, two percentage points (2.00%);
(iv) if Borrower's Recourse Debt to Net Worth Ratio
is greater than 0.60 but not more than 0.80, two and one-fourth
percentage points (2.25%); and
(v) if Borrower's Recourse Debt to Net Worth Ratio
is greater than 0.80, two and one-half percentage points (2.50%).
(h) Recourse Debt to Net Worth Ratio. "Recourse Debt to Net Worth
Ratio" or "Recourse Debt/Net Worth Ratio" shall mean the quotient
obtained by dividing (i) Recourse Debt by (ii) Net Worth. For
the purpose of determining the interest rate applicable to the
Loans, such ratio shall be based of the most recent financial reports
referred to in Section 5.1(a)(1) of the Loan Agreement and any KCA
debt which is nonrecourse to the Borrower shall be disregarded.
(i) Commitment Fee - Village Course Facility. The Borrower shall
pay to the Agent for pro rata distribution to each Lender, a commitment
fee on the aver-age daily unutilized Aggregate Loan Commitment
with respect to the Village Course Facility, 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 commencing on
March 31, 2000, and thereafter, on the last day of each March, June,
September and December prior to the Maturity Date and on the Maturity Date
(or such earlier date as the Aggregate Loan Commitment with respect to
the Village Course Facility shall be terminated).
(j) Net Worth. Section 5.1(e)(3) of the Loan
Agreement is amended to read as follows:
(3) A Net Worth of not less
than $60,100,000.00, plus 50% of the
cumulative net profits after December 31, 1998 (but not
the net losses) of Borrower.
(k) Capital Expenditures. Section 5.2(d) of the Loan
Agreement is amended to read as follows:
(d) Neither the Borrower nor any
Subsidiary will make any Capital Expenditure
that is not approved in writing by Lenders that
causes Borrower to exceed (on an aggregated
basis) the following Capital Expenditure limits:
$10,800,000 for fiscal year 1998; $11,500,000 for
fiscal year 1999; $14,000,000 for each of fiscal
years 2000 and 2001; and $12,000,000 for each
fiscal year thereafter. Capital Expenditures for
work at the Village Course at Kapalua (described in
Section 5.1(n)) shall not be counted towards such
Capital Expenditure limits. Capital Expenditures
for the Site 29 Project of up to $1,000,000 in the
aggregate or that are approved in writing by
Lenders shall not be counted towards such
Capital Expenditure limits.
2. Upon execution of this Agreement and in consideration of
these amendments:
(a) Borrower shall pay to the Agent, on demand, for
distribution to the Lenders according to their
Individual Commitment Percentages with respect to the
Original Facility the following non-refundable fee with
respect to the Original Facility:
$10,000.
(b) Borrower shall pay to the Agent, on demand, for
distribution to the Lenders according to their
Individual Commitment Percentages with respect to the
Village Course Facility the following non-refundable
fee with respect to the Village Course Facility:
$7,500.
3. Capitalized terms used, but not defined,
in this Agreement, shall have the definitions stated in
the Loan Agreement.
4. Borrower agrees that Borrower has no claims,
defenses, or offsets against the Lenders or the Agent with respect to
said credit facility or to the enforcement of the Loan
Documents arising prior to the date of this Agreement, and that
Borrower agrees that all such claims, defenses, and offsets are
hereby released.
5. The execution of this Agreement by the Borrower
constitutes the personal certification of the persons signing
this Agreement 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
Agreement.
6. 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 Agreement by the parties hereto.
7. This Agreement is binding upon, and shall inure
to the benefit of, the parties hereto and their respective
successors and assigns.
8. The parties hereto agree that this instrument
may be executed in counterparts, each of which shall be
deemed an original, and said counterparts shall
together constitute one and the same agreement,
binding all of the parties hereto, notwithstanding
all of the parties are not signatory to the original
or the same counterparts. Duplicate unexecuted pages
of the counterparts may be discarded and the
remaining pages assembled as one document.
To signify their agreement, the parties
have executed this Agreement as of the date first
written above.
MAUI LAND & PINEAPPLE COMPANY, INC. BANK OF HAWAII,
individually and as Agent
By:/S/ XXXX X. XXXXX By:/S/ XXXXX X. XXXX
Its EXECUTIVE VICE PRESIDENT/FINANCE Its VICE PRESIDENT
FIRST HAWAIIAN BANK
By:/S/ XXX XXXXXXX
Its ASSISTANT TREASURER By:/S/ XXXXX X XXXXXXXX
Its VICE PRESIDENT
CENTRAL PACIFIC BANK
By:/S/ XXXXXX X XXXXXXXX
Its VICE PRESIDENT
