THIRD LOAN MODIFICATION AGREEMENT
THIS THIRD LOAN MODIFICATION AGREEMENT ("Agreement") is
dated as of August 11, 2003, by and among MAUI LAND & PINEAPPLE
COMPANY, INC., a Hawaii corporation, hereinafter called the
"Borrower", and BANK OF HAWAII, a Hawaii banking corporation
("BOH"), FIRST HAWAIIAN BANK, a Hawaii banking corporation
("FHB"), CENTRAL PACIFIC BANK, a Hawaii banking corporation
("CPB"), and AMERICAN AGCREDIT, PCA, a corporation or association
organized and existing under the laws of the United States of
America ("PCA") (BOH, FHB, CPB and PCA are each sometimes called
a "Lender" and are 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 (in such
capacity, the "Agent"), and KAPALUA LAND COMPANY, LTD., a Hawaii
corporation (the "Accommodation Party").
Recitals:
A. The Lenders (i) have made available to the
Borrower Revolving Loans in the aggregate principal amount of
up to $25,000,000 at any one time outstanding, and (ii) shall
make available to the Borrower Term Loans in an amount up to the
aggregate principal amount of the Revolving Loans outstanding
upon expiration of the Revolving Loan Period, but not to exceed
$15,000,000, all as more particularly described in that certain
Amended and Third Restated Revolving Credit and Term Loan
Agreement dated December 31, 2001, made by and among the
Borrower, Lenders and Agent, as amended by a Loan Modification
Agreement effective as of December 31, 2002 and a Second Loan
Modification Agreement dated as of March 21, 2003 (as amended,
the "Loan Agreement").
B. Capitalized terms used, but not defined in this
Agreement, shall have the meanings given them in the Loan
Agreement.
C. The performance of the Borrower under the Loan
Documents is secured by the following (as amended and confirmed,
collectively, the "Mortgages") made in favor of the Lenders:
(1) Mortgage and Security Agreement dated
March 1, 1993, made by the Borrower, as Mortgagor, recorded in
the Bureau of Conveyances of the State of Hawaii (the "Bureau")
as Document No. 93-036896;
(2) Mortgage and Security Agreement dated
March 1, 1993, made by the Borrower, as Mortgagor, recorded in
the Bureau as Document No. 93-036898; and
(3) Additional Security Mortgage and Security
Agreement dated March 1, 1993, made by the Accommodation Party,
recorded in the Bureau as Document No. 93-036900.
D. The Borrower has requested certain modifications
of the Loan Documents and the Lenders are willing to agree to
such modifications under the terms and conditions of this
Agreement.
Agreements:
NOW, THEREFORE, in consideration of the premises, the
mutual covenants set forth herein and other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
1. Amendment to the Loan Agreement: Effective as
of June 30, 2003, Section 5.10(c) of the Loan Agreement is
amended as follows:
(c) A Net Worth of not less than $57,500,000,
plus 50% of cumulative Net Profits (but not the net
losses) generated after June 30, 2003.
2. Amendment Fee and Costs: In consideration of,
and as a condition to, the amendment herein contained, the
Borrower shall pay the Agent, on demand, for distribution to
the Lenders on a pro rata basis, a $10,000 amendment fee. The
Borrower shall also promptly reimburse the Agent for all costs
and expenses, including reasonable attorney's fees, incurred by
the Agent in connection with this transaction.
3. Modification: This Agreement is a modification
only and not a novation. In all other respects, the terms and
conditions of the Loan Documents, as hereby modified, are
hereby ratified and confirmed and shall remain in full force
and effect.
4. Reaffirmation and Enlargement: The Borrower
confirms and reaffirms all of its representations, warranties
and covenants in the Loan Documents. The execution of this
Agreement by the Borrower constitutes the certification of the
persons signing this Agreement on behalf of the Borrower that,
to the best of their actual knowledge, the representations and
warranties made in Article IV of the Loan Agreement are true
and correct as of the date of this Agreement. All references
in the Loan Documents to the Loan Agreement are hereby enlarged
and expanded to mean and include the Loan Agreement as hereby
modified.
5. Mortgagors: The Borrower and the Accommodation
Party confirm the grant, pledge and mortgage of the properties
encumbered by the Mortgages, as and for continuing security for
the obligations of the Borrower under the Loan Documents. The
Borrower and the Accommodation Party warrant that the properties
encumbered by the Mortgages are subject to no liens or
encumbrances other than those set forth in the Mortgages.
6. No Offsets: The Borrower and the Accommodation
Party each agrees that to its actual knowledge it has no claims,
defenses, or offsets against the Lenders or the Agent with
respect to the Credit Facility or to the enforcement of the Loan
Documents arising prior to the date of this Agreement and that all
such claims, defenses and offsets are hereby released.
7. Successors and Assigns: This Agreement is binding
upon, and shall inure to the benefit of, the parties hereto and
their respective successors and assigns.
8. Counterparts: This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one and
the same document, 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.
[The following page is the signature page.]
To signify their agreement, the parties have executed
this Third Loan Modification Agreement as of the date above
written.
MAUI LAND & PINEAPPLE COMPANY, BANK OF HAWAII, individually
INC. and as Agent
By /S/ XXXX X. XXXXX By /S/XXXXX X. XXXX
Name: Xxxx X. Xxxxx Name: Xxxxx X. Xxxx
Title: EVP/Finance Title: Senior Vice
President
By /S/Xxx Xxxxx
Name: Xxx Xxxxx FIRST HAWAIIAN BANK
Title: President
Borrower By /S/NEILL CHAR
Name: Neill Char
Title:Vice President
KAPALUA LAND COMPANY, LTD.
CENTRAL PACIFIC BANK
By /S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: EVP/Finance By /S/ XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title:Vice President
By /S/ XXX XXXXX
Name: Xxx Xxxxx
Title: President AMERICAN AGCREDIT, PCA
Accommodation Party
By /S/ XXXX VAN SCHUYVER
Name: Xxxx Van Schuyver
Title:Vice President
Lenders
