FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
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THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT (this "Amendment"), effective as of February 4 ,2004 (the
"Effective Date"), at Honolulu, Hawaii, is by and between ALEXANDER & XXXXXXX,
INC., a Hawaii corporation (the "Borrower"), the undersigned Banks (herein
called, individually, a "Bank" and, collectively, the "Banks"), and FIRST
HAWAIIAN BANK, as agent for the Banks (the "Agent").
PRELIMINARY STATEMENTS
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A. The Borrower, certain of the Banks and other institutions
were parties to that certain Revolving Credit and Term Loan Agreement dated as
of December 1, 1982. Such Revolving Credit and Term Loan Agreement has been
amended and restated on numerous occasions, the last of which occurring pursuant
to that certain Third Amended and Restated Revolving Credit and Term Loan
Agreement effective as of November 30, 2001, by and between the Borrower, the
Banks and the Agent (the "Credit Agreement").
B. The Borrower, the Banks, and the Agent desire to amend the
Credit Agreement to amend the definition of "Consolidated Net Income" to account
for the adoption by the Borrower of certain accounting standards.
C. The Banks are willing to amend the Credit Agreement in
accordance with the terms and conditions of this Amendment.
D. All capitalized terms used herein, unless otherwise
defined, are as defined in Article IX of the Credit Agreement.
AGREEMENT
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In consideration of the mutual covenants set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Consolidated Net Income. The definition for "Consolidated
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Net Income" in Article IX, Section 9.1 of the Credit Agreement is hereby amended
in its entirety as follows:
"Consolidated Net Income": shall mean the net income of the
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Borrower and its Subsidiaries determined on a consolidated
basis in accordance with GAAP excluding (net of applicable
taxes and expenses thereto): (i) gains in excess of losses
resulting from the sale, conversion, exchange or disposition
of capital assets (i.e., assets other than current assets)
other than gains or losses resulting from the sales of
purchased or developed real property sold for cash, cash
equivalents or other property or tangible assets by the
Borrower or any Subsidiary engaged in real-estate activities
in the ordinary course of its property management and
development activities; (ii) gains resulting from the write-up
of assets to the extent permitted under GAAP; (iii) losses
resulting from the write-down of impaired assets in accordance
with GAAP; (iv) equity of the Borrower or its Subsidiaries in
the unremitted earnings of any company or entity not required
to be consolidated with the Borrower under GAAP; (v) losses
resulting from the write-down of intangible assets, including
goodwill, as required under GAAP; (vi) net income, gains or
losses resulting from any change in accounting, from any
discontinued operations or the disposition thereof (excluding,
however, net income, gains, or losses from discontinued
operations related to the sale of income-producing real
property assets classified as discontinued operations under
Statement of Financial Accounting Standards No. 144, provided
that all net proceeds of such sale be completely reinvested in
other income-producing real property assets within six (6)
months of the sale of the disposed income-producing real
property assets), from any extraordinary events, from any
cumulative changes in statutory tax rates, or from any prior
period adjustments, all determined in accordance with GAAP.
2. Confirmation of Warranties and Covenants: No Event of Default. All
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of the continuing warranties of the Borrower contained in the Credit Agreement,
are hereby confirmed and reaffirmed by the Borrower as being true, valid and
correct as of the date of this Amendment. The Borrower represents and warrants
that no Event of Default exists as of the date of this Amendment.
3. No Offsets or Defenses; Waiver. As of the date hereof, the Borrower
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has no claims, defenses or offsets against the Agent, the Banks or against the
Borrower's obligations under the Credit Agreement, as herein amended, whether in
connection with the negotiations for or closing of the Credit Agreement, of this
Amendment, or otherwise, and if any such claims, defenses or offsets exist, they
are hereby irrevocably waived and released.
4. Full Force and Effect. The provisions of the Credit Agreement and of
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the Notes, as previously amended, are hereby amended to conform with this
Amendment but in all other respects the provisions of the Credit Agreement and
the Notes, as previously amended and as amended by this Amendment, shall
continue in full force and effect.
5. Rights of the Banks. This Amendment is made on the express condition
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that nothing contained herein shall in any way be construed as affecting,
impairing, or waiving any rights of the Banks under the Credit Agreement.
6. Bind and Inure. This Amendment shall be binding upon and inure to
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the benefit of the Banks, the Borrower and their respective successors and
assigns, provided, that the Borrower may not transfer any rights or obligations
under this Amendment without the prior written consent of the Banks.
7. Applicable Law; Severability. This Amendment shall be governed by
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and interpreted in accordance with the laws of the State of Hawaii. If any
provision of this Amendment is held to be invalid or unenforceable, the validity
or enforceability of the other provisions shall remain unaffected.
8. Paragraph Headings. The headings of paragraphs in this Amendment are
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inserted only for convenience and shall in no way define, describe, or limit the
scope or intent of any provision of this Amendment.
9. Counterparts and Facsimile Signatures. The parties to this Amendment
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agree that this Amendment 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. In
making proof of this Amendment, it shall not be necessary to produce or account
for more than one such counterpart. For all purposes, including, without
limitation, recordation and delivery of this Amendment, duplicate unexecuted and
unacknowledged pages of the counterparts may be discarded and the remaining
pages assembled as one document. The submission of a signature-page transmitted
by facsimile or telecopy (or similar electronic transmission facility) shall be
fully binding and in full effect for all purposes under this Amendment. In such
event, original signature pages shall be delivered within a reasonable time and
substituted for the facsimile signature pages in the counterpart copies upon
receipt.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
ALEXANDER & XXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
Its Executive Vice President,
Chief Financial Officer and
Treasurer
By /s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
Its Controller and
Assistant Treasurer
"Borrower"
FIRST HAWAIIAN BANK,
as a Bank and as Agent
Corporate Hawaii Division
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Att'n: Xx. Xxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxx Xxxxxxx
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Its Vice President
BANK OF AMERICA, N.A.
WA1-501-35-01
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Att'n: Xx. Xxxx Xxxxx
Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxx Xxxxx
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Its Senior Vice President
BANK OF HAWAII
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Att'n: Xx. Xxxxx Xxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxxx X. Xxxxx
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Its Vice President
THE BANK OF NEW YORK
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Att'n: Xx. Xxxxxxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxxxxxx Xxxxxxxx
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Its Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
MAC A0112-101
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Meff Bailard
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Its Vice President
AMERICAN SAVINGS BANK, F. S. B.
P. O. Xxx 0000
Xxxxxxxx, Xxxxxx 00000-0000
Attn: Xx. Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By /s/ Xxxx X. Xxxxxx
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Its Vice President
"Banks"
