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LAND COURT SYSTEM | REGULAR SYSTEM
Return by Mail ( ) Pickup ( ) To:
Tax Map Key No.: (2) 4-3-3-109
MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT
This Mortgage, Security Agreement and Financing
Statement ("Mortgage"), dated Nov. 27 , 1996, is made
by MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii corpora-
tion, whose address is P. O. Box 187, Kahului, Maui,
Hawaii 96732-0187 (the "Mortgagor"), in favor of BANK OF
HAWAII, a Hawaii corporation, whose address is P. O. Box
2900, Honolulu, Hawaii 96846 (the "Mortgagee").
1. Granting Clauses. The Mortgagor hereby
mortgages to the Mortgagee, and grants to the Mortgagee a
mortgage lien on and security interest in, all of the
following-described properties, in each case to the full
extent of the Mortgagor's right, title and interest
therein, whether now held or hereafter acquired by the
Mortgagor (collectively, the "Mortgaged Properties"):
(a) the land described in Exhibit A, attached
hereto, together with all easements, rights, privileges,
licenses, tenements, hereditaments and appurtenances in
any way now or hereafter relating or appertaining thereto
(collectively, the "Land"); and
(b) all buildings and other improvements now or
hereafter located or constructed on the Land or any part
thereof (the "Improvements," and, together with the Land,
the "Premises"); and
(c) all of the Mortgagor's right, title and in-
terest in, to and under any and all offers to lease,
leases, rental agreements, agreements of sale, sale con-
tracts, management contracts or other agreements now or
hereafter entered into by the Mortgagor, covering any part
of the Mortgaged Properties; and
(d) all of the Mortgagor's present and future
rents, royalties, profits, revenues, income, deposits or
other benefits arising from the use, operation or sale of
the Premises, or any part thereof (collectively, the
"Income Stream"); and
(e) all furniture, furnishings, fixtures and
equipment now or at any time hereafter attached to or lo-
cated on or within or used or to be used in any way in
connection with the use, operation or occupation of the
Premises or any part thereof (collectively, the
"Equipment"); and
(f) all of the Mortgagor's contract rights re-
lating to the development, construction or operation of
the Premises and all drawings, plans, specifications, file
materials, operating and maintenance manuals and records,
warranties, guaranties, appraisals and data relating to
the Premises and/or the Equipment, and all permits,
certificates, approvals and authorizations, however
characterized, issued or furnished (whether necessary or
not) for the development, construction, operation or use
of the Premises, including, without limitation,
subdivision approvals, building permits, certificates of
occupancy and certificates of operation; and
(g) all proceeds of the conversion, voluntary
or involuntary, of any of the foregoing into cash or
liquidated claims, including, without limitation, proceeds
of insurance and condemnation or other awards or payments
in respect thereof.
SUBJECT, HOWEVER, to the encumbrances described
in Exhibit A, attached hereto.
2. Secured Obligations. This Mortgage
secures: (i) payment of all indebtedness now or hereafter
evidenced by the promissory note made by the Mortgagor,
dated the date of this Mortgage, payable to the
Mortgagee's order in the principal amount of $5,000,000,
and any renewals, extensions or modifications thereof
(said promissory note, as it now exists or as it may be
hereafter modified, is herein called the "Note"); and (ii)
payment of all other sums agreed or provided to be paid by
the Mortgagor pursuant to any of the other documents which
evidence or secure the indebtedness under the Note (which
documents, as they now exist or as they may be hereafter
modified, are herein called the "Loan Documents"); and
(iii) the observance and performance of all other cove-
nants, provisions, terms and agreements on the part of the
Mortgagor to be observed or performed under this Mortgage
and any and all other Loan Documents (all indebtedness and
other obligations referred to in this Section 2 are herein
collectively called the "Secured Obligations").
3. Events of Default. As used in this Xxxx-
xxxx, the term "Event of Default" has the meaning given to
it in the Note.
4. Mortgagee's Rights and Remedies Upon De-
fault. Subject in all events to the terms of this Xxxx-
xxxx and until the happening of an Event of Default, the
Mortgagor shall be permitted to use and possess the Mort
gaged Properties, but only in the ordinary course of its
business as now conducted. However, if any Event of De-
fault shall occur and be continuing:
(a) The Mortgagee may, by written notice to the
Mortgagor, declare the entire unpaid amount of the Secured
Obligations to be immediately due and payable;
(b) The Mortgagee may, to the extent permitted
by law, (i) peaceably enter the Premises and exclude the
Mortgagor and its agents and servants therefrom, (ii) use,
operate, manage and control the Premises and Equipment,
(iii) maintain, protect and restore the Mortgaged Proper-
ties and make all repairs and alterations thereof and
additions and improvements thereto as the Mortgagee may
deem reasonably necessary, (iv) collect and receive the
Income Stream and out of the same pay all reasonable
expenses incurred by the Mortgagee in connection with the
exercise of its rights and remedies hereunder, and apply
the remainder thereof to the payment of other Secured
Obligations;
(c) The Mortgagee may, with or without entry,
sell the Mortgaged Properties or any part thereof at one
or more sales, as an entity or in parcels, and at such
time or times and place or places and upon such terms and
after such notice thereof, as may be required by law, or
institute and prosecute judicial proceedings for the
partial or complete foreclosure of this Mortgage and/or
the specific performance of any one or more of the Secured
Obligations and/or the enforcement of any other
appropriate legal right or equitable remedy, as the
Mortgagee may elect;
(d) Pending such proceedings, the Mortgagee
shall be entitled to the appointment without bond of a re-
ceiver or receivers of the Mortgaged Properties, or any
part thereof, without regard to the value of the Mortgaged
Properties or the solvency of any person liable for the
payment, observance or performance of the Secured Obliga-
tions and regardless of whether the Mortgagee has an xxx-
xxxxx remedy at law;
(e) The Mortgagee may elect to treat any part
of the Mortgaged Properties which consists of a right in
action or of property that can be severed from the
Premises without causing structural damage thereto as
personal property, and exercise as to such property all
rights, remedies and privileges with respect to reposses-
sion, retention, sale and disposition of proceeds as are
accorded to a secured party under the Uniform Commercial
Code or in effect in the State of Hawaii;
(f) At any sale(s) made by virtue of this Sec-
tion 4 (a "Foreclosure Sale"), the Mortgagee, or an
officer of any court empowered to do so, may execute and
deliver to the purchaser(s) a good and sufficient instru-
ment or instruments conveying, assigning or transferring
all of the Mortgagor's estate, right, title and interest
in and to the properties and rights sold, and, for such
purposes, the Mortgagee is hereby appointed as the
attorney in fact of the Mortgagor, in its name and stead,
to make all necessary conveyances, assignments, transfers
and deliveries of the properties so sold, and the
Mortgagee may substitute one or more persons with like
power, and the Mortgagor hereby ratifies and confirms all
that the Mortgagee or its substitute shall lawfully do by
virtue hereof. This power of attorney is coupled with an
interest and is irrevocable;
(g) The Mortgagee may adjourn from time to time
any Foreclosure Sale, by announcement at the time and
place appointed for such sale or for such adjourned
sale(s) and, except as otherwise required by law, the
Mortgagee, without further notice or publication, may make
such sale at the time and place to which the same shall
have been adjourned;
(h) At any Foreclosure Sale the Mortgagee may
be the purchaser and, upon compliance with the terms of
sale, may hold, retain, possess and dispose of the
properties so purchased in its absolute right without
further accountability, and the Mortgagee, in lieu of
paying cash for the properties so purchased, may make
settlement for the purchase price by crediting against the
purchase price all or any part of the unpaid amount of the
Secured Obligations, after deducting from the sales price
the expenses of the sale and costs of the foreclosure
proceeding and any other sums that Mortgagee may be
authorized to deduct therefrom;
(i) The Mortgagee may apply the proceeds of any
Foreclosure Sale, first, to the payment of all costs and
expenses of the sale(s) and all proceedings in connection
therewith, including reasonable fees of legal counsel,
second, to the payment or reimbursement to the Mortgagee
of any disbursements made by the Mortgagee for taxes,
assessments or other charges prior to the lien of this
Mortgage which the Mortgagee shall deem it advisable to
pay, third, to the payment or reimbursement to the
Mortgagee of all other reasonable disbursements made by
the Mortgagee as authorized by this Mortgage or any of the
other Loan Documents, fourth, to the payment in such order
as the Mortgagee may designate of the remainder of the
Secured Obligations, and fifth, the remainder, if any,
shall be paid over to the Mortgagor, or to whomsoever may
be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct;
(j) If the proceeds of any Foreclosure Sale are
insufficient to discharge all items mentioned in clauses
first through fourth of the preceding paragraph, the
Mortgagor shall remain liable for the deficiency, and the
Mortgagee may have any other legal recourse against the
Mortgagor for the deficiency;
(k) Neither the Mortgagor nor any person claim-
ing through or under it, to the extent the Mortgagor may
lawfully so agree, shall set up, claim or seek to take ad-
vantage of any appraisement, valuation, stay, extension or
redemption laws in order to prevent or hinder the enforce-
ment or foreclosure of this Mortgage; and the Mortgagor,
for itself and all who may claim through or under it,
hereby waives, to the full extent that it may lawfully do
so, the benefit of all such laws and any and all rights to
have the Mortgaged Properties (or any part thereof or in-
terest therein) marshaled upon any foreclosure of this
Mortgage;
(l) The Mortgagee shall have the right to en-
force one or more remedies hereunder, or any other remedy
the Mortgagee may have, successively or concurrently, in-
cluding the right to foreclose this Mortgage with respect
to any portion of the Mortgaged Properties, without
thereby impairing the lien of this Mortgage on the
remainder of the Mortgaged Properties or affecting other
remedies of the Mortgagee in respect thereof; and
(m) No failure on the Mortgagee's part to exer-
cise, and no course of dealing with respect to, and no xx-
xxx in exercising, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or par-
tial exercise by the Mortgagee of any right or remedy
hereunder preclude any other or further exercise thereof
or the exercise of any other right or remedy. The
remedies herein provided are cumulative with, and not
exclusive of, any other remedies provided by any other
Loan Documents or by law.
5. Xxxxxxxxx's Representations, Warranties and
Covenants. The Mortgagor represents and warrants to and
covenants with the Mortgagee as follows:
(a) Title. The Mortgagor represents and war-
rants that it has good right and lawful authority to exe-
cute this Mortgage and that it owns the Premises and all
other Mortgaged Properties, in each case subject to no
lien, security interest or other encumbrance except for
(i) the encumbrances described in Exhibit A, attached
hereto, (ii) liens for real property taxes and assessments
not yet due and payable, and (iii) liens and security
interests created by this Mortgage.
(b) Further Acts. The Mortgagor will, at its
own expense, within five days after the Mortgagee's
written request therefor, execute and deliver such further
documents and do such further acts as may be reasonably
necessary to carry out the purposes of this Mortgage and
to perfect the lien and security interests hereby created
against the Mortgaged Properties and any and all additions
thereto, substitutions therefor and renewals and replace-
ments thereof.
(c) Permits and Laws. The Mortgagor shall (i)
maintain in full force and effect all governmental
permits, consents, approvals, licenses and franchises
("Permits") now or hereafter required by any governmental
agency or authority to operate or use and occupy the
Premises and Equipment for their intended purposes, and
(ii) comply with all requirements set forth in the
Permits and all requirements of any law, ordinance, rule
or regulation applicable to the Mortgagor or all or any
part of the Mortgaged Properties and all applicable
requirements of any recorded deed of restrictions,
declaration or covenant running with the land or
otherwise, now or hereafter in force. The Mortgagor shall
not initiate or consent to any change in the zoning or any
other permitted use classification of the Premises without
the Mortgagee's prior written consent.
(d) Maintenance. The Mortgagor shall maintain
the Premises in good operating order, condition and
repair. The Premises shall not be demolished or
materially altered, nor shall any of the Equipment be
removed therefrom, without the Mortgagee's prior written
consent, except that items constituting Equipment may
without such consent be removed if immediately replaced
(free from security interests of or reservations of title
by third parties) with similar items of Equipment having a
value and utility for their intended purposes that is not
less than the value and such utility of the Equipment so
removed.
(e) Taxes, Liens, etc. The Mortgagor shall pay
and discharge, from time to time when they become due, all
taxes and assessments imposed upon or assessed against the
Mortgaged Properties or any part thereof. The Mortgagor
will not permit any mechanics', materialmen's, tax, judg-
ment or other lien or security interest to be hereafter
created and remain on the Mortgaged Properties, except
liens of real property taxes or assessments not yet due
and payable.
(f) Waste. The Mortgagor will not suffer any
waste or any unlawful, improper or offensive use of the
Mortgaged Properties or any act or negligence whereby the
Mortgaged Properties or any interest therein shall become
liable to seizure or attachment or the lien and security
interest created hereby shall be impaired.
(g) Inspection. Representatives of the Mort-
gagee shall have the right to enter and inspect the Mort-
gaged Properties at all reasonable times.
(h) Insurance Coverage. The Mortgagor will, in
respect of all insurable properties now or hereafter con-
stituting any portion of the Mortgaged Properties and in
respect of all insurable activities of the Mortgagor, pro-
cure and maintain (or cause to be procured and
maintained), at all times during the effectiveness of this
Mortgage, insurance in such forms and covering such risks
and hazards and in such amounts as are reasonably
satisfactory to the Mortgagee. Such insurance shall
include:
(i) property insurance with coverage for
all causes of loss, including hurricane and
windstorm coverage, written on the Insurance
Service Office ("ISO") "Broad Form" or its
equivalent, in amounts not less than the full
insurable replacement value of all such
insurable properties, and including the
following endorsements, if requested by the
Mortgagee: (1) replacement cost coverage, (2)
agreed amount, and (3) building ordinance
coverage insuring against contingent liability
from the operation of laws, statutes, ordinances
or regulations concerning the Improvements on or
about the Premises, demolition of such
Improvements and increased cost of construction
of such Improvements. Additionally, if required
by the Mortgagee, the Mortgagor shall procure a
difference-in-conditions policy to include
earthquake, backup of sewers and broad collapse
coverage with a limit of liability determined to
be prudent by the Mortgagee;
(ii) while insurable properties are under
construction, a builder's risk policy, completed
value form, non-reporting, with an amount of
coverage equal to 100% of the estimated replace-
ment cost of the Improvements upon completion of
construction, written on (or provide coverage
equal to the coverage provided by) an ALS 1972
policy (including earthquake and flood coverage,
if available), or its equivalent;
(iii) commercial general liability
insurance (occurrence form), including coverage,
to the extent reasonably available, for
premises/operations, independent contractors,
contractual liability, personal injury,
employees as additional insureds and broad form
property damage;
(iv) flood insurance, if and to the extent
required by law, naming the Mortgagee as a loss
payee;
(v) if requested by the Mortgagee,
business income insurance, in amounts sufficient
to cover all amounts payable under the Note dur-
ing any period of 6 consecutive months; and
(vi) all such other insurance insuring all
insurable properties constituting part of the
Mortgaged Properties, and insuring all insurable
activities of the Mortgagor, against all other
risks usually insured against by persons oper-
ating like properties in the locality where the
Mortgaged Properties are located.
(i) Insurance Policies. All insurance policies
required by this Mortgage shall (i) prohibit cancellation
or substantial modification by the insurer without at
least 30 days' prior written notice to the Mortgagee, and
(ii) provide that the insurance shall not be invalidated
as to the Mortgagee by any act or neglect of any person
owning or leasing the Mortgaged Properties, or by
foreclosure proceeding or notice of sale or sale by deed
or assignment in lieu of foreclosure or by any other
change in the title or ownership of the Mortgaged
Properties, and (iii) contain an agreement by the insurer
that the policy constitutes primary insurance. All
property insurance policies required by this Mortgage
shall be carried in the name of the Mortgagor, shall
contain a standard mortgagee clause (without contribution)
in favor of the Mortgagee, and provide that losses
thereunder shall be adjusted with the insurer by the
Mortgagor, but with settlements subject to the approval of
the Mortgagee and payments made jointly to the Mortgagor
and the Mortgagee. In the event of loss or physical
damage to the Mortgaged Properties, the Mortgagor shall
give immediate notice thereof to the Mortgagee, and the
Mortgagee may make proof of the loss if the same is not
made promptly by the Mortgagor. Upon the execution of
this Mortgage and thereafter not less than 10 days prior
to the expiration dates of expiring policies, originals of
all policies of such insurance (or certificates thereof in
form acceptable to the Mortgagee) shall be deposited with
the Mortgagee. If the Mortgagor fails to carry any such
insurance or fails to deliver the policies (or
certificates) to the Mortgagee, then the Mortgagee, at its
option but without being obligated to do so, may procure
such insurance from year to year and pay the premiums
therefor, and the Mortgagor will reimburse the Mortgagee
on demand for premiums so paid, with interest thereon from
the time of payment at the post-default rate chargeable
under the Note (the "Default Rate"), and the same shall be
secured by this Mortgage. All insurance required by the
preceding paragraph (h) shall be issued by insurance
companies licensed and admitted to do business in Hawaii
and having a rating by Best's Insurance Reports of
Class A:VI or better. The Mortgagee shall not be
responsible for the collection of any insurance proceeds
or for the insolvency of any insurer or insurance
underwriter.
(j) Condemnation Awards. Should all or any
part of the Mortgaged Properties be taken by eminent
domain, the Mortgagor, forthwith upon payment thereof,
will cause to be deposited with the Mortgagee the
Mortgagor's share of the award for any Mortgaged
Properties so taken, to the extent of the unpaid balance
of the Secured Obligations. In the event of any such
taking (other than a taking for governmental occupancy for
a limited or specified period), the Mortgagee shall
release the properties so taken upon receipt by and
deposit with the Mortgagee of the proceeds of such award
so recovered by the Mortgagor.
(k) Use of Insurance and Condemnation Proceeds.
All insurance proceeds received by the Mortgagor or the
Mortgagee on account of damage to or destruction of any
Mortgaged Properties and the Mortgagor's share of all pro-
ceeds of any award for any Mortgaged Properties taken by
eminent domain received by the Mortgagee, less the cost,
if any, incurred by the Mortgagee with respect thereto,
shall be applied to the restoration of any damaged
Premises or Equipment; provided, however, at the option of
the Mortgagee such proceeds may be applied to the payment
of the Secured Obligations. If any such proceeds are to
be applied to the payment of the cost of repairing,
restoring or rebuilding the Mortgaged Properties so
damaged or destroyed or taken (the "work"), such proceeds
shall be applied from time to time as the work progresses,
subject to such reasonable conditions as may be imposed by
the Mortgagee to insure the lien-free completion of the
work; and, on completion of the work and payment in full
therefor, or on any failure on the part of the Mortgagor
promptly to commence or continue the work, the amount of
any such proceeds then or thereafter in the hands of the
Mortgagor or the Mortgagee shall be applied to the payment
of the Secured Obligations. Nothing herein contained
shall prevent the Mortgagee from applying at any time the
whole or any part of such proceeds to the curing, either
in whole or in part, of any Event of Default.
(l) Transfer Restrictions. The Mortgagor,
without having obtained the Mortgagee's prior written
consent thereto, shall not sell, transfer or assign to any
other person (including by way of an agreement of sale or
similar instrument), or further mortgage or otherwise
encumber, the Mortgaged Properties or any part thereof or
interest therein; provided, however, that the Mortgagor
may, without such consent, execute and deliver (but only
in the ordinary course of the Mortgagor's business) tenant
leases of any part of the Premises (the "Tenant Leases"),
subject to the satisfaction of the conditions that (i) the
form and content of the Tenant Leases shall have been ap-
proved by the Mortgagee, which approval shall not be un-
reasonably withheld or delayed, (ii) if requested by the
Mortgagee, such Tenant Leases shall be fully subordinate
to the lien of this Mortgage, and (iii) as further
security for the payment, observance and performance of
the Secured Obligations, the Mortgagor shall have assigned
to the Mortgagee all rentals payable under the Tenant
Leases by means of an Assignment of Rents, acceptable to
the Mortgagee in form and in content.
(m) Appearances. The Mortgagee may appear in
and defend any action or proceeding purporting to affect
the security hereof and in such event the Mortgagee shall
be allowed and paid, and the Mortgagor hereby agrees to
pay on demand, all the Mortgagee's reasonable expenses,
including cost of evidence of title and attorneys' fees in
a reasonable amount, incurred in such action or proceeding
in which the Mortgagee may appear.
(n) Tax Deposits. Following the occurrence of
an Event of Default, the Mortgagor shall deposit with the
Mortgagee monthly in advance, together with and in
addition to any other payments then payable under the Loan
Documents, a sum equal to the full amount of all real
property taxes and assessments next due on the Mortgaged
Properties (all as estimated by the Mortgagee) less all
sums already paid therefor, divided by the number of
months to elapse before one month prior to the date when
such taxes and assessments will become due and payable.
The Mortgagee may commingle such sums with deposits of
others and may invest such sums for its (the Mortgagee's)
sole benefit, without any obligation to pay interest
thereon to the Mortgagor, and the Mortgagee may from time
to time expend such sums, or any part thereof, to pay said
taxes and assessments as and when the same become due and
payable. If the total of such deposits shall exceed the
amount necessary to pay said taxes and assessments such
excess may, at the Mortgagee's option, be released to the
Mortgagor or applied on any indebtedness secured hereby.
If, however, the total of such deposits shall not be
sufficient to pay said taxes and assessments when the same
shall become due and payable, then the Mortgagor shall
make up the deficiency on or before the date when payment
of such taxes and assessments shall be due. If at any
time the Mortgagor shall tender to the Mortgagee full
payment of the Secured Obligations, the Mortgagee shall,
in computing the amount thereof, credit to the account of
the Mortgagor any balance remaining in the funds accumu-
lated under the provisions of this paragraph. As further
security for the Secured Obligations, the Mortgagor grants
to the Mortgagee a security interest in all funds
accumulated under the provisions of this paragraph.
(o) Reappraisals. The Mortgagee shall have the
right to obtain at the Mortgagor's expense reappraisals of
the Mortgaged Properties, from any licensed or certified
appraiser designated by the Mortgagee, from time to time
(i) whenever such reappraisal may be required by any law,
rule or regulation applicable to the conduct of the Mort-
gagee's business, or (ii) whenever requested or directed
by any governmental authority charged with the
administration of such law, rule or regulation or the
Mortgagee's compliance therewith, whether or not such r-
equest or direction has the force of law, or (iii)
whenever reasonably deemed appropriate by the Mortgagee at
its sole discretion.
(p) Mortgagee's Expenses. Whether or not an
Event of Default shall have occurred, the Mortgagor cove-
nants that it will pay or reimburse to the Mortgagee, on
demand, all expenses, including reasonable fees of legal
counsel, incurred by the Mortgagee in connection with the
administration and enforcement of the Secured Obligations,
the investigation and policing of any Event of Default,
the negotiation, documentation and administration of any
loan "work out" proposal (whether or not effectuated), the
foreclosure of this Mortgage and sale of the Mortgaged
Properties, and the exercise of any other rights or
remedies provided to the Mortgagee by this Mortgage or any
of the other Loan Documents, together with interest
thereon from the date of demand until payment is made at
the Default Rate, the payment or reimbursement of which
expenses, with interest thereon at the Default Rate, shall
be included among the Secured Obligations and secured by
this Mortgage.
(q) Financial Statements. The Mortgagor will
keep and maintain accurate and proper books of record and
account in accordance with sound accounting practice; the
Mortgagee's representatives shall have the right to
examine the books of account of the Mortgagor and to
discuss the affairs, finances and accounts of the
Mortgagor and the income and expenses of the Mortgaged
Properties and to be informed as to the same by the
Mortgagor and its employees or agents, all at such reason-
able times and intervals as the Mortgagee may desire. The
Mortgagor will furnish to the Mortgagee, or will cause to
be furnished to the Mortgagee, (i) within 120 days after
the end of each fiscal year, financial statements of the
Mortgagor, for and at the end of such fiscal year, in-
cluding a balance sheet and statement of income and
expenses, audited by a certified public accountant
selected by the Mortgagor and approved by the Mortgagee,
(ii) annual financial statements and income tax returns of
any guarantor of the Secured Obligations and (iii) such
other financial reports, certificates or information as
the Mortgagee may reasonably request, in each case in form
and detail acceptable to the Mortgagee.
(r) ADA Requirements. So long as this Mortgage
remains outstanding, the Mortgagor will, at its own cost
and expense, in respect of the Premises and in respect of
the Mortgagor's business activities at or within the
Premises: (i) comply with all requirements of the federal
Americans With Disabilities Act ("ADA") and the rules pro-
mulgated thereunder ("Rules"), to the extent applicable to
the Mortgagor's ownership, management, operation, leasing,
use, construction, reconstruction, repair, remodeling, re-
habilitation or alteration of the Premises, or any part
thereof; (ii) immediately provide to the Mortgagee written
notice (and immediately provide to the Mortgagee copies)
of any and all notices of actual, potential or alleged
violations of the ADA or Rules and any and all
governmental investigations or regulatory actions
instituted or threatened, regarding the ADA or Rules; and
(iii) furnish to the Mortgagee, from time to time whenever
reasonably requested by the Mortgagee, an ADA Compliance
Assessment, in form reasonably acceptable to the Mort-
gagee, made by an architect or engineer having a good
repute for skill and experience in the field of ADA com-
pliance and otherwise reasonably acceptable to the Mort-
gagee. In the event that the Mortgagee or a purchaser of
the Premises at foreclosure (or by conveyance in lieu of
foreclosure) incurs any compliance expenses or other ex-
penses (including reasonable fees of legal counsel) or
liabilities as a result of the failure of the Premises to
comply with the requirements of the ADA and the Rules at
the date of the Mortgagee's or purchaser's acquisition
thereof, the Mortgagor shall indemnify the Mortgagee or
the purchaser against all reasonable expenses and
liabilities so incurred by the Mortgagee or the purchaser;
and the indemnification provisions of this sentence shall
survive said foreclosure (or conveyance in lieu of
foreclosure).
(s) Notices. All notices, demands, approvals
and other communications provided for in this Mortgage
shall be in writing and shall be delivered to the appro-
priate party at its address shown on the first page of
this Mortgage. Addresses for notices and other
communications may be changed from time to time by written
notice given as aforesaid. All communications shall be
effective when actually received; provided, however, that
nonreceipt of any communication as the result of a change
of address of which the sending party was not notified or
as the result of a refusal to accept delivery shall be
deemed receipt of such communication.
(t) Successors. As and when used herein, the
term "Mortgagee" shall include Bank of Hawaii and its suc-
cessors and assigns; the term "Mortgagor" shall include
the named Mortgagor and its successors and permitted
assigns; and the term "person" shall include person, part-
nership, association, trust or corporation.
(u) Captions. The captions or headings of Sec-
tions contained in this Mortgage are inserted for conve-
nience only and shall not in any way affect the meaning or
construction of any provision of this Mortgage.
IN WITNESS WHEREOF, the Mortgagor has caused
this instrument to be duly executed as of the date above
written.
MAUI LAND & PINEAPPLE COMPANY,
INC., a Hawaii corporation
/S/ XXXX X. XXXXX
By _____________________________
Name: XXXX X. XXXXX
Title: EXECUTIVE VICE
PRESIDENT/FINANCE
/S/ XXXXX X. XXXXXX
By _____________________________
Name: XXXXX X. XXXXXX
Title: SECRETARY
