AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT (the "Amendment and Restatement"),
dated as of DECEMBER 4, 1996, by and among MAUI LAND &
PINEAPPLE COMPANY, INC., a Hawaii corporation (the "Bor-
rower"), BANK OF HAWAII, a Hawaii banking corporation
("BOH"), FIRST HAWAIIAN BANK, a Hawaii banking cor-
poration ("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 hereinbelow and in the
Agency Agreement referred to 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 respec-
tively 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, contemporaneously herewith, the
Lenders have purchased the interests of BOA under the
Original Loan Agreement and the other Loan Documents
referred to therein (the "BOA Purchase"), and the
respective "Individual Loan Commitment Percentage" of
each Lender is now as follows:
(1) BOH's Individual Loan Commitment
Percentage is equal to 45%;
(2) FHB's Individual Loan Commitment
Percentage is equal to 42%; and
(3) CPB's Individual Loan Commitment
Percentage is equal to 13%;
WHEREAS, the Borrower has heretofore made the
following mandatory reductions of the Aggregate Loan
Commitment pursuant to Section 2.06(A) of the Original
Loan Agreement:
(1) $4,000,000 of net mortgage loan proceeds
of the permanent financing of the Napili Plaza project
pursuant to Section 2.06(A)(4); and
(2) $3,000,000 pursuant to Section 2.06(A)(2);
and as a result thereof, as of the date of this Amendment
and Restatement, the Aggregate Loan Commitment has been
permanently reduced to be equal to $15,000,000, and the
respective Individual Loan Commitments of the Lenders is
as follows:
(1) BOH's Individual Loan Commitment is equal
to $6,750,000;
(2) FHB's Individual Loan Commitment is equal
to $6,300,000; and
(3) CPB's Individual Loan Commitment is equal
to $1,950,000;
WHEREAS, capitalized terms used herein and not
otherwise defined herein shall have the respective
meaning assigned thereto in the Original Loan Agreement;
WHEREAS, the Borrower, the Lenders and the
Agent have agreed to further amend the terms of the
Original Loan Agreement, among other matters, to:
(1) extend the "Revolving Loan Period" (sched-
uled to expire on June 30, 1997) to and including
December 31, 1997;
(2) provide for the availability of the Term
Loans on January 1, 1998 (subject to the satisfaction of
certain terms and conditions), the principal of which
Term Loans shall be payable in six semi-annual
installments thereafter, and which shall mature on De-
cember 31, 2000;
(3) provide for a $4,000,000 cap on the manda-
tory reduction of the Aggregate Loan Commitment from net
sale proceeds of the sale of the Napili Plaza project or
net mortgage loan proceeds from permanent financing of
the Napili Plaza project;
(4) change the interest rate applicable to out-
standing principal of the Term Loans to be equal to (i)
if the aggregate principal amount of the Term Loans
outstanding on January 10, 1998 is equal to $15,000,000
or less, a floating rate per annum equal to the Base Rate
plus 0.25%, and (ii) if the aggregate principal amount of
the Term Loans outstanding on January 10, 1998 is greater
than $15,000,000, a floating rate per annum equal to the
Base Rate plus 0.50%;
(5) reduce the commitment fee payable on the
unused portion of the commitments of the Lenders to be
equal to 0.25%;
(6) amend certain financial covenants and nega-
tive covenants of the Borrower; and
(7) make certain conforming and other
amendments to the terms of the Original Loan Agreement;
WHEREAS, in order to effect the foregoing
amendments and to clarify the current terms of Original
Loan Agreement (in light of the various prior amendments
and new amendments thereto), the Borrower, the Lenders
and the Agent have agreed to amend and restate the
Original Loan Agreement in its entirety, subject to the
satisfaction of the conditions precedent set forth in
Section 3.02 hereof, all as set forth hereinbelow in this
Amendment and Restatement;
NOW, THEREFORE, in consideration of the pre-
mises, the mutual covenants set forth herein and other
good and valuable consideration, the receipt and suffi-
ciency of which are hereby acknowledged, the Borrower,
the Lenders and the Agent hereby agree that effective on
the Effective Date (as defined below), the terms and pro-
visions of the Original Loan Agreement are amended and
restated to read in their entirety as follows:
I. Additional Definitions
As used in this Loan Agreement, each of the
terms defined in this Article I shall have the meaning
given to it in this Article I:
1.01 "Agency Agreement" means the Agency Agree-
ment dated as of March 1, 1993, among the Original
Lenders and the Agent, authorizing the Agent to act as
agent in respect of the Loans, as amended from time to
time.
1.02 "Aggregate Loan Commitment" means, subject
to reductions pursuant to the provisions of Section 2.06
of this Loan Agreement:
(1) during the Initial Period, Forty Million
Dollars ($40,000,000); and
(2) on and after each Commitment Reduction Date
and until the next Commitment Reduction Date, if any, the
Aggregate Loan Commitment after giving effect to the re-
duction to occur on such Commitment Reduction Date."
On and as of the date of this Amendment and Restatement,
the Aggregate Loan Commitment has been reduced to be
equal to $15,000,000, subject to further permanent
reduction in accordance with the terms hereof.
1.03 "Business Day" means any day except a Sat-
urday, Sunday or other day on which commercial banks in
Hawaii are authorized by law to close.
1.04 "Capital Expenditures" means all expendi-
tures that, in accordance with generally accepted
accounting principles consistently applied, should be
capitalized on the accounting records of the Borrower and
its Subsidiaries.
1.05 "Cash Flow from Operating Activities"
means, at any time, the consolidated cash flows of the
Borrower and the Subsidiaries from operating activities,
determined on a basis consistent with the basis used for
the determination of the Statements of Cash Flows from
Operating Activities as presented in the Borrower's 1991
Annual Report to its stockholders.
1.06 "Commitment Reduction Date" means each of
the following dates:
(i) the earlier of (a) January 1, 1996 and (b)
the date that the Aggregate Loan Commitment is reduced to
$22,000,000 or less (the earlier of such dates is herein
referred to as the `First 1996 Commitment Reduction
Date');
(ii) December 31, 1996 (the `Second 1996 Com-
mitment Reduction Date'); and
(iii) each other date that the Aggregate Loan
Commitment is to be reduced pursuant to the provisions of
Section 2.06(A) of this Loan Agreement.
1.07 "Consolidated Current Assets" and "Con-
solidated Current Liabilities" mean, at any time, all as-
sets or liabilities, respectively, that, in accordance
with generally accepted accounting principles consis-
tently applied, should be classified as current assets or
current liabilities, respectively, on a consolidated
balance sheet of the Borrower and its Subsidiaries,
except that "Consolidated Current Assets" shall not
include growing crops and that "Consolidated Current
Liabilities" shall not include the aggregate outstanding
principal amount of the Loans, together with accrued and
unpaid interest thereon, at the time of determination.
1.08 "Current Ratio" means, at any time, Con-
solidated Current Assets divided by Consolidated Current
Liabilities.
1.09 "Effective Date" shall have the meaning
assigned thereto in Section 3.02 hereof.
1.10 "Environmental Indemnification Agreement"
means an Environmental Indemnification Agreement in the
form of Exhibit A attached to the Original Loan
Agreement, made by the Borrower in favor of the Lenders,
as amended from time to time.
1.11 "Expiry Date" means January 1, 1998.
1.12 "Financial Statements" means the consol-
idated balance sheets of the Borrower and its
Subsidiaries and consolidated statements of income and
retained earnings of the Borrower and its Subsidiaries
and other financial statements (a) heretofore furnished
to the Lenders, or any of them, and (b) to be furnished
to the Lenders pursuant to the provisions of this Loan
Agreement.
1.13 "Indebtedness for Borrowed Money" means
any indebtedness or obligation or liability to repay
borrowed monies, whether matured or unmatured, liquidated
or unliquidated, direct or contingent, joint or several,
including, without limitation, all such indebtedness
guaranteed, directly or indirectly, in any manner, or
endorsed (other than for collection or deposit in the
ordinary course of business) or discounted with recourse.
1.14 "Individual Loan Commitment" means,
subject to further reductions pursuant to the provisions
of Section 2.06 of this Loan Agreement:
(1) In respect of Bank of Hawaii, $14,000,000
during the Initial Period and on and after each
Commitment Reduction Date and until the next Commitment
Reduction Date, if any, an amount equal to the difference
of (x) Bank of Hawaii's Individual Loan Commitment
immediately before giving effect to the reduction to
occur on such Commitment Reduction Date, minus (y) the
product of (i) the Aggregate Loan Commitment Reduction
Amount which is to occur on such Commitment Reduction
Date, multiplied by (ii) Bank of Hawaii's Individual Loan
Commitment Percentage. As of the date of this Amendment
and Restatement, Bank of Hawaii's Individual Loan
Commitment is equal to $6,750,000, subject to further
permanent reduction from time to time in accordance with
the terms of this Loan Agreement.
(2) In respect of First Hawaiian Bank,
$13,000,000 during the Initial Period and on and after
each Commitment Reduction Date and until the next Commit-
ment Reduction Date, if any, an amount equal to the dif-
xxxxxxx of (x) First Hawaiian Bank's Individual Loan Com-
mitment immediately before giving effect to the reduction
to occur on such Commitment Reduction Date, minus (y) the
product of (i) the Aggregate Loan Commitment Reduction
Amount which is to occur on such Commitment Reduction
Date, multiplied by (ii) First Hawaiian Bank's Individual
Loan Commitment Percentage. As of the date of this
Amendment and Restatement, First Hawaiian Bank's
Individual Loan Commitment is equal to $6,300,000,
subject to further permanent reduction from time to time
in accordance with the terms of this Loan Agreement.
(3) In respect of Bank of America, National
Trust and Savings Association, $9,000,000 during the Ini-
tial Period, as heretofore permanently reduced from time
to time. Pursuant to the BOA Purchase, as described in
the recitals of this Amendment and Restatement, BOA has
no interest in, to or under the Loan Agreement or the
other Loan Documents, and BOA's Individual Loan
Commitment is equal to zero ($0.00).
(4) In respect of Central Pacific Bank,
$4,000,000 during the Initial Period and on and after
each Commitment Reduction Date and until the next
Commitment Reduction Date, if any, an amount equal to the
difference of (x) Central Pacific Bank's Individual Loan
Commitment immediately before giving effect to the
reduction to occur on such Commitment Reduction Date,
minus (y) the product of (i) the Aggregate Loan
Commitment Reduction Amount which is to occur on such
Commitment Reduction Date, multiplied by (ii) Central
Pacific Bank's Individual Loan Commitment Percentage. As
of the date of this Amendment and Restatement, 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 this Loan Agreement.
1.15 "Individual Loan Commitment Percentage"
means, in respect of Bank of Hawaii, originally 35%, and
pursuant to the BOA Purchase, as described in the re-
citals hereof, BOH's current Individual Loan Commitment
Percentage is 45.0%; in respect of First Hawaiian Bank,
originally 32.5%, and pursuant to the BOA Purchase, as
described in the recitals hereof, FHB's current
Individual Loan Commitment Percentage is 42.0%; in
respect of Bank of America National Trust and Savings
Association, originally 22.5%, and pursuant to the BOA
Purchase, as described in the recitals hereof, BOA's
current Individual Loan Commitment Percentage is 0.00%;
and in respect of Central Pacific Bank, originally 10.0%,
and pursuant to the BOA Purchase, as described in the re-
citals hereof, CPB's current Individual Loan Commitment
Percentage is 13.0%.
1.16 "Initial Loan Period" means the period
commencing on December 31, 1992 and ending on the first
Commitment Reduction Date to occur.
1.17 "Investments" means all expenditures by
the Borrower and its Subsidiaries, not reflected as
Capital Expenditures in the Financial Statements, 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
reflected as Investments in the Financial Statements.
1.18 "KCA" means Kaahumanu Center Associates, a
Hawaii limited partnership which is organized between the
Borrower or a wholly-owned Subsidiary thereof, as general
partner, and the State of Hawaii Employee Retirement
System, as limited partner, for the purpose of acquiring,
expanding and operating the Kaahumanu Shopping Center
complex currently owned by the Borrower.
1.19 "Laws" means all ordinances, statutes,
rules, regulations, orders, injunctions, writs or decrees
of any government or political subdivision or agency
thereof, or any court or similar entity established by
any thereof.
1.20 "Lenders" is defined in the preamble of
this Amendment and Restatement; provided, however, that
as used hereinbelow, "Lenders" means (i) prior to the BOA
Purchase, BOH, FHB, BOA and CPB, and (ii) subsequent to
the BOA Purchase, BOH, FHB and CPB.
1.21 "Loan Agreement" means the Original Loan
Agreement, as amended and restated by this Amendment and
Restatement, and as may be further amended from time to
time.
1.22 "Loan Documents" means this Loan
Agreement, the Notes, the Mortgage, the Environmental
Indemnity Agreement and the Additional Security Mortgage
described in Section 5.01(B) of this Loan Agreement, in
each case as originally executed and as thereafter
amended, modified or restated from time to time in
accordance with the respective terms thereof.
1.23 "Loans" means all Revolving Loans and Term
Loans to be made to the Borrower pursuant to this Loan
Agreement.
1.24 "Majority in Interest of the Lenders"
means Lenders holding 100% of the aggregate principal
amount of the Loans then outstanding hereunder (or if no
Loans are at the time outstanding, Lenders having 100% of
the Aggregate Loan Commitment).
1.25 "Maturity Date" means December 31, 2000.
1.26 "Mortgage" means a Mortgage and Security
Agreement in substantially the form of Exhibit B attached
to the Original Loan Agreement, made by the Borrower, as
Mortgagor, in favor of the Lenders, as Mortgagees, as
originally executed and as thereafter amended or modified
in accordance with its terms.
1.27 "Net Profits" means, for any fiscal year,
the consolidated, after-tax net profits of the Borrower
and its Subsidiaries for such year, determined in accord-
ance with generally accepted accounting principles con-
sistently applied.
1.28 "Net Worth" means, at any time, on a con-
solidated basis for the Borrower and the Subsidiaries,
their Net Worth as shown in the most recent Financial
Statements (provided, however, that for purposes of
determining Net Worth under this Loan Agreement, the
amount of any goodwill or debt discount carried as assets
on such Financial Statements, trademarks, patents,
copyrights, organizational expense and other similar
intangible items shall be subtracted).
1.29 "Notes" means, collectively, (i) the Re-
volving Notes, as respectively amended from time to time
and (ii) from and after the date of the making of the
Term Loans, each of the Term Notes, as respectively
amended from time to time.
1.30 "Obligations" means, collectively, the ob-
ligations of the Borrower to pay the principal of and in-
terest on the Notes in accordance with the terms thereof
and to satisfy all of the Borrower's other indebtedness,
covenants, liabilities and obligations to the Lenders un-
der the Loan Documents, whether now existing or hereafter
incurred, matured or unmatured, direct or contingent,
joint or several.
1.31 "Person" means any individual,
corporation, partnership, association, joint-stock
company, trust, unincorporated organization, joint
venture, court or government or political subdivision or
agency thereof.
1.32 "Records" means correspondence, memoranda,
tapes, discs, papers, books and other documents, or
transcribed information of any type, whether expressed in
ordinary or machine language.
1.33 "Recourse Debt" means, as to the Borrower
or any Subsidiary, all items of indebtedness, obligation
or liability for borrowed funds, whether now existing or
hereafter incurred, matured or unmatured, direct or con-
tingent, joint or several, including, but without limita-
tion:
(A) All indebtedness for borrowed money
guaranteed, directly or indirectly, in any manner,
or endorsed (other than for collection or deposit in
the ordinary course of business) or discounted with
recourse;
(B) All indebtedness for borrowed money in ef-
fect guaranteed, directly or indirectly, through
agreements, contingent or otherwise: (1) to
purchase such indebtedness; or (2) to purchase, sell
or lease (as lessee or lessor) property, products,
materials or supplies or to purchase or sell
services, primarily for the purpose of enabling the
debtor to make payment of such indebtedness or to
assure the owner of the indebtedness against loss;
or (3) to supply funds to or in any other manner
invest in the debtor; and
(C) All indebtedness for borrowed money
secured by (or for which the holder of such
indebtedness has a right, contingent or otherwise,
to be secured by) any mortgage, deed of trust,
pledge, lien, security interest or other charge or
encumbrance on property owned or acquired subject
thereto, whether or not the liabilities secured
thereby have been assumed;
provided, however, the foregoing provisions to the con-
trary notwithstanding, Nonrecourse Secured Debt shall not
be considered Recourse Debt. For this purpose "Nonre-
course Secured Debt" means all items of indebtedness in-
curred by the Borrower or a Subsidiary for borrowed
money, now existing or hereafter arising, secured by real
or personal collateral and in respect of which the sole
recourse of the holder of the debt instrument for payment
of the indebtedness evidenced thereby is against the col-
lateral for such indebtedness, and not against the
obligor individually or the obligor's other assets.
1.34 "Revolving Loans" means Loans requested by
the Borrower pursuant to Section 2.03, below, and granted
by the Lenders during the Revolving Loan Period (as that
term is defined in Section 2.01, below).
1.35 "Revolving Notes" means, collectively (i)
originally, each of four Notes, executed by the Borrower
pursuant to the Original Loan Agreement and payable indi-
vidually to the order of an Original Lender, in each
case, as amended from time to time, and (ii) from and
after the Effective Date, each of the Notes, as here-
tofore respectively amended, as respectively amended and
restated by the three Amended and Restated Revolving
Notes (as defined in Section 3.02(a) hereof) to be
executed by the Borrower pursuant to this Amendment and
Restatement, and as may be further respectively amended
from time to time.
1.36 "Subsidiary" means any corporation of
which more than 50% of the outstanding voting securities
having ordinary voting power to elect a majority of the
Board of Directors of such corporation shall, at the time
of determination, be owned directly, or indirectly
through one or more Subsidiaries, by the Borrower. A
list of the currently-existing Subsidiaries is attached
to the Original Loan Agreement as Exhibit H.
1.37 "Term Loan" has the meaning given to it in
Section 2.01(b) of this Loan Agreement.
1.38 "Term Notes" means, collectively, the
three Term Notes to be executed by the Borrower and pay-
able to the order of each Lender, individually, each in
the form of Annex IV hereto, and completed in conformity
with the provisions of this Loan Agreement.
1.39 "Total Debt" means, as to the Borrower and
all Subsidiaries, on a consolidated basis, all Indebted-
ness for Borrowed Money, including, without limitation,
all Recourse Debt and Nonrecourse Secured Debt, plus all
lease obligations which are capitalized on the Borrower's
and/or Subsidiaries' balance sheets in accordance with
generally accepted accounting principles.
II. The Loans
2.01 General Terms. (a) Revolving Loans. On
the terms and provisions and subject to the satisfaction
of the conditions stated in this Loan Agreement, each
Lender hereby severally agrees to make Loans to the Bor-
rower, from time to time and at any time prior to the Ex-
piry Date (the "Revolving Loan Period"), each in a
principal amount equal to such Lender's Individual Loan
Commitment Percentage of the total amount to be borrowed
on any occasion; provided, however, that (a) subject to
the provisions of Section 2.06 of this Loan Agreement,
the aggregate principal amount at any one time outstand-
ing of all Loans hereunder shall not exceed the Aggregate
Loan Commitment (i.e., $40,000,000 at any one time out-
standing during the Initial Period and, at any one time
outstanding on and after each Commitment Reduction Date
and until the next Commitment Reduction Date, if any, the
Aggregate Loan Commitment after giving effect to the
reduction to occur on such Commitment Reduction Date),
(b) no Lender shall be obligated to make Loans to the
Borrower which shall exceed, in the aggregate principal
amount at any one time outstanding, such Lender's Indi-
vidual Loan Commitment, (c) each advance of Loan proceeds
hereunder shall be made by the several Lenders ratably,
in a principal amount equal to such Lender's Individual
Loan Commitment Percentage of the total amount to be
borrowed on any occasion, (d) no Lender shall have any
obligation or liability to the Borrower or any other
Person as a result of the failure of another of the
Lenders to observe any of its obligations under this Loan
Agreement, and (e) no Lender (in its capacity as such)
shall have any obligation or liability to the Borrower or
any other Person as a result of the failure of the Agent
to observe any of its obligations under this Loan Agree-
ment or the Agency Agreement. During the Revolving Loan
Period the Borrower may borrow, repay without penalty or
premium and reborrow hereunder, either the full amount of
the Aggregate Loan Commitment then in effect or any
lesser sum, provided that any borrowing hereunder shall
be in an amount not less than $500,000, and an integral
multiple of $100,000, and provided that any voluntary
prepayment hereunder shall be in an amount not less than
$250,000, and an integral multiple of $50,000. Principal
of and interest on the Revolving Loans shall be paid by
the Borrower at the times and in the manner stated in the
Revolving Notes and in this Loan Agreement, including,
without limitation, Section 2.07 and 2.08 below.
(b) Term Loans. Subject to the satisfaction
of all terms and conditions of this Loan Agreement,
including, without limitation, Section 3.03 hereof, each
Lender severally agrees to make a term loan ("Term Loan")
to the Borrower on the Expiry Date, in an amount equal to
the aggregate principal amount of the Revolving Loans
then outstanding and owing by the Borrower to such
Lender. The proceeds of each Term Loan to be made by
each Lender shall be used to repay in full the Revolving
Loans outstanding with respect to such Lender on the date
of the making of the Term Loan. Term Loans may not be
reborrowed. Principal of and interest on the Term Loans
shall be paid by the Borrower at the times and in the
manner stated in the Term Notes and in this Loan
Agreement, including, without limitation, Section 2.07
and 2.08 below.
2.02 Notes. (a) Revolving Notes. The
Borrower's obligation to pay the principal of, and inter-
est on, all Revolving Loans made by each Lender shall be
evidenced by a separate Revolving Note, executed by the
Borrower and payable to the order of such Lender. Each
Revolving Note issued to a Lender shall (i) be payable to
the order of such Lender and be dated the date of the
initial borrowing of proceeds of Revolving Loans, (ii) be
in the original principal amount of the Individual Loan
Commitment of such Lender, (iii) mature on the Expiry
Date, (iv) bear interest as provided in Section 2.07
hereof, (v) be repaid as provided in such Revolving Note
and in Sections 2.07 and 2.08 hereof and (vi) be
entitled to the benefits of this Loan Agreement.
(b) Term Notes. Each Term Loan made by a
Lender to the Borrower shall be evidenced by a separate
Term Note, each executed by the Borrower and payable to
the order of such Lender. Each Term Note issued to a
Lender shall (i) be in the form of hereto with blanks
appropriately completed in conformity with this Loan
Agreement, (ii) be dated the Expiry Date, (iii) be in the
principal amount of the aggregate unpaid principal amount
of all Revolving Loans then outstanding with respect to
such Lender, (iv) bear interest as provided in Section
2.07 hereof, (v) be repaid as provided in such Term Note
and in Sections 2.07 and 2.08 hereof, (vi) mature on the
Maturity Date and (vii) be entitled to the benefits of
this Loan Agreement.
2.03 Requests for Revolving Loans. In respect
of each Revolving Loan to be made pursuant to Section
2.01(a) of this Loan Agreement, the Borrower shall give
to the Agent at least two full Business Days' prior tele-
phonic notice of the Borrower's request therefor, in each
case immediately followed by a confirmation in writing to
the Agent, specifying the date of such Revolving Loan,
which shall be a Business Day, and the principal amount
of such Revolving Loan (which shall be not less than
$500,000 and shall be in an integral multiple of
$100,000).
2.04 Disbursements. During the Revolving Loan
Period the Agent will credit the proceeds of each Revolv-
ing Loan to the Borrower's deposit account with Bank of
Hawaii or, at the Borrower's request, disburse the pro-
ceeds of such Revolving Loan to the order of the
Borrower.
2.05 Fees. (a) Initial Commitment Fees. As
used in this Section 2.05(a), the term "Tranche A Commit-
ment" means that portion of the Aggregate Loan Commitment
which does not exceed $30,000,000 and the term "Tranche B
Commitment" means that portion of the Aggregate Loan Com-
mitment which exceeds $30,000,000. Also for the purposes
of this Section 2.05(a), all Revolving Loan proceeds not
exceeding $30,000,000 at any one time outstanding shall
be deemed to have been disbursed pursuant to the Tranche
A Commitment, and only those Loan proceeds which are in
excess of $30,000,000 at any one time outstanding shall
be deemed to have been disbursed pursuant to the Tranche
B Commitment.
During the Revolving Loan Period prior to the date
of this Amendment and Restatement, the Borrower shall pay
to the Agent, for remittance to the Lenders, (a)
commitment fees at the rate of one-half of one percent
(0.5%) a year on the average daily undisbursed amount of
the Tranche A Commitment during each quarterly period or
portion thereof, and (b) commitment fees at the rate of
one-quarter of one percent (0.25%) a year on the average
daily undisbursed amount of the Tranche B Commitment dur-
ing each quarterly period or portion thereof; provided,
however, that, in the event any Revolving Loan proceeds
attributable to the Tranche B Commitment are disbursed at
any time, the commitment fee rate which is payable in
respect of the entire Tranche B Commitment shall be
increased to the rate of one-half of one percent (0.5%) a
year on the daily average undisbursed amount of the
Tranche B Commitment, and such increased rate shall be
effective for the period commencing on the date which is
ninety calendar days preceding the date of disbursement
of such Revolving Loan proceeds and shall continue to be
effective thereafter until the aggregate outstanding
principal amount of the Revolving Loans shall have been
reduced to or below $30,000,000. All commitment fees
provided for in this Section 2.05 shall be computed on
the basis of a year of 365 days (or 366 days in leap
years) and paid for the actual number of days elapsed.
Such commitment fee shall be payable quarterly, on the
last day of each September, December, March and June, and
also, in respect of additional fees payable pursuant to
any retroactive increase in the commitment fee rate
applicable to the Tranche B Commitment, within 30 days
after the Agent's submittal to the Borrower of a xxxx
therefor.
(b) Amended Commitment Fee. With respect to
the period from and after Effective Date until the Expiry
Date, the Borrower shall pay to the Agent for pro rata
distribution to each Lender, a commitment fee on the
average daily unutilized Aggregate Loan Commitment,
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 December 31, 1996, and thereafter, on the
last day of each March, June, September and December
prior to the Expiry Date and on the Expiry Date (or such
earlier date as the Aggregate Loan Commitment shall be
terminated).
(c) Extension Fee. For and in respect of the
extension of the Revolving Period effected by this Amend-
ment and Restatement, the Borrower shall also pay to the
Agent on or before the Effective Date for pro rata
distribution to each Lender, an extension fee in the
aggregate principal amount of $25,000.
(d) Agent's Fee. For and in respect of the
services of the Agent to be rendered hereunder and under
the Agency Agreement, the Borrower agrees to pay to the
Agent the fee set forth in Section 5.01(N) hereof.
2.06 Reductions of Commitment.
A. Mandatory Reduction. On May 15, 1995, the
Aggregate Loan Commitment was reduced to $23,000,000; and
on each Commitment Reduction Date thereafter, the Aggre-
gate Loan Commitment shall be reduced to the amount set
forth below with respect to such Commitment Reduction
Date:
(1) At the close of business on the First 1996
Commitment Reduction Date, the Aggregate Loan Commitment
in effect at the opening of business on such date shall
be reduced to Twenty-two Million Dollars
($22,000,000.00);
(2) At the close of business on the Second
1996 Commitment Reduction Date, the Aggregate Loan Com-
mitment in effect at the opening of business on such date
shall be reduced by Three Million Dollars
($3,000,000.00); and
(3) The Aggregate Loan Commitment in effect
shall be reduced by the close of business on the date of
the earlier of (x) the date of the sale of the Napili
Plaza project in an amount equal to the net sale proceeds
of such sale and (y) the date of any permanent financing
of the Napili Plaza project in an amount equal to the net
mortgage loan proceeds of such permanent financing, up to
but not exceeding the sum of $4,000,000.
The Borrower shall pay to the Lenders through the Agent
no later than the close of business on each Commitment
Reduction Date, as a mandatory prepayment of the aggre-
gate outstanding principal amount of the Loans, an amount
equal to the difference between (I) the aggregate out-
standing principal amount of the Loans, minus (II) the
Aggregate Loan Commitment as so reduced.
In addition to the foregoing, by the close of
business on each date the Borrower or any Subsidiary
receives any net sales proceeds (i.e., gross sales
proceeds less closing costs acceptable to the Lenders) in
respect of the sale of any real estate assets of the
Borrower or any Subsidiary, the Borrower shall notify the
Agent of such sale and the Borrower's receipt of such net
sale proceeds and shall pay to the Lenders through the
Agent 75% of the after-tax net proceeds so received by
the Borrower as a mandatory payment of the outstanding
principal amount of the Loans; provided, however, that
such mandatory payments of principal shall not
permanently reduce the Aggregate Loan Commitment.
B. Voluntary Reduction. The Borrower shall
have the right, at any time and from time to time, upon
not less than one full calendar month's prior written no-
xxxx to the Agent, to voluntarily reduce the amount of
the Aggregate Loan Commitment, in any integral multiple
of $1,000,000. Contemporaneously with each such
voluntary reduction, the Borrower shall repay or prepay
to the Lenders, through the Agent, the amount, if any, by
which the then outstanding aggregate principal balance of
the Loans exceeds the Aggregate Loan Commitment as so
reduced.
C. Effects of Reductions. After any such re-
duction, (a) the commitment fees provided for in Section
2.05 of this Loan Agreement shall be calculated in
respect of the Aggregate Loan Commitment as so reduced,
(b) the Individual Loan Commitments of each Lender shall
be reduced pro rata in accordance with their respective
Individual Loan Commitment Percentage, which shall remain
unchanged, and (c) the mandatory reduction described in
subparagraph A above, and the notice of reduction
described in subparagraph B above, each shall be
irrevocable and the Aggregate Loan Commitment may not be
thereafter increased without the written consent of all
of the Lenders.
2.07 Interest Rates and Payments of Interest.
Interest on the principal balance of the Loans shall ac-
crue and be paid at the rates, at the times and in the
manner stated in the Notes and as follows:
(a) Revolving Period. Outstanding balances of
principal of the Revolving Loans shall bear interest at
the following rates per annum:
(1) During the period commencing on the
date of initial disbursement of proceeds of the Revolving
Loans, to and including December 31, 1993, a floating
rate equal to the Base Rate in effect from time to time;
(2) During the period commencing on Janu-
ary 1, 1994 to and including May 15, 1995, a floating
rate equal to one-half of one percentage point (0.5%),
plus the Base Rate in effect from time to time;
(3) During the period commencing on May
15, 1995, to but not including the date (the "Interest
Reduction Date"), if any, that the Aggregate Loan
Commitment is reduced to $15,000,000.00 or less, a float-
ing rate equal to one-quarter of one percentage point
(0.25%), plus the Base Rate in effect from time to time;
and
(4) During the period commencing on the
Interest Reduction Date, if any, to but not including
that the date that the Revolving Loans are paid in full,
a floating rate equal to the Base Rate in effect from
time to time;
During the Revolving Period, interest accruing on
the principal balance of the Revolving Loans at the
floating rate(s) per annum aforesaid shall be due and
payable (i) quarterly in arrears on the last day of each
March, June, September and December and (ii) at maturity
(whether by acceleration or otherwise).
(b) Term Loan Period. In the event that the
Term Loans shall be made, during the period commencing on
the Expiry Date, to and including the date that the Term
Loans are paid in full, (i) if the aggregate principal
amount of the Term Loans outstanding on the Expiry Date
is less than or equal to $15,000,000, a floating rate per
annum equal to one-quarter of one percent (0.25%) plus
the Base Rate in effect from time to time, or (ii) if the
aggregate principal amount of the Term Loans outstanding
on the Expiry Date is greater than $15,000,000, a
floating rate per annum equal to one-half of one percent
(0.50%) plus the Base Rate in effect from time to time.
From and after the date of the making of the Term
Loans, interest accruing on the principal balance of the
Term Loans at the floating rate(s) per annum aforesaid
shall be due and payable (i) quarterly in arrears on the
last day of each March, June, September and December and
(ii) at maturity (whether by acceleration or otherwise).
(c) General. With respect to all Loans:
(1) "Base Rate" means the primary index
rate established from time to time by Bank of Hawaii in
the ordinary course of its business and with due
consideration of the money market, and published by
intrabank memoranda for the guidance of its loan officers
in pricing all of its loans which float with the Base
Rate.
(2) Any floating rate of interest will
increase or decrease during the term of this Loan Agree-
ment if there is an increase or decrease in the rate to
which the floating rate is tied. If the rate to which
the floating rate is tied is no longer available, the
Agent will choose a new rate that is based on comparable
information.
(3) Interest shall be computed on the ba-
sis of the actual number of days elapsed between payments
and on the basis of a 365-day year (or, in leap years, on
the basis of 366-day year).
(4) In computing interest on each Loan,
the date of the making of such Loan shall be included and
the date of payment shall be excluded; provided, however,
that if a Loan is repaid on the same day on which it is
made, such day shall nevertheless be included in
computing interest thereon.
(5) In no event shall the Borrower be ob-
ligated to pay any amount under this Agreement that ex-
ceeds the maximum amount allowable by law. If any sum is
collected in excess of the applicable maximum amount al-
lowable by law, the excess collected shall, at the Lend-
ers' discretion, be applied to reduce the principal bal-
ance of the Loans or returned to the Borrower.
(6) The foregoing rates of interest shall
be subject to the provisions of Section 6.02(c) hereof
relating to the Default Rate upon the occurrence and dur-
ing the continuance of an Event of Default.
2.08 Payments and Prepayments of Principal.
(a) Revolving Loans. The principal of the Re-
volving Loans shall be due and payable as set forth in
Section 2.06 hereof with respect to mandatory reductions
of principal. In addition, on the Expiry Date (or such
earlier date on which the Aggregate Loan Commitment shall
be terminated), the outstanding principal balance of all
Revolving Loans shall be due and payable.
(b) Term Loans. The principal of the Term
Loans shall be due and payable as set forth in Section
2.06 hereof with respect to mandatory reductions of prin-
cipal. In addition, the outstanding principal balance of
the Term Loans shall be repaid in six equal semi-annual
installments, each of which shall be in an amount equal
to the lesser of (1) the product of the aggregate
outstanding principal balance of the Term Loans,
multiplied by 1/6, or (2) the then outstanding principal
balance of the Term Loans. On the Maturity Date, the
entire principal balance of the Term Loans shall be due
and payable.
(c) General.
(1) Principal balances outstanding under
the Notes shall be paid, and may be prepaid without pen-
alty or premium, in the amounts, at the times and in the
manner stated herein and in the Notes. No payment or
prepayment of principal under any of the Notes shall be
made without a concurrent payment or prepayment of
principal under the other Notes, and all principal
amounts paid or prepaid on the Notes shall be shared
among the Lenders pro rata, in accordance with their
respective Individual Loan Commitment Percentages.
Payments and prepayments of principal, during the
Revolving Loan Period, shall be in amounts not less than
$250,000, and in integral multiples of $50,000.
(2) If any payment under this Agreement
is not made when due, the Borrower will pay to the Agent
for pro rata distribution to the Lenders (or for the sole
account of Agent to the extent relating to a payment not
to be distributed to the Lenders) a late charge in
respect of that payment, in the amount of 5% of the
overdue payment.
2.09 Sums Payable to the Lenders. The Agent
shall send to the Borrower, from time to time, statements
of all amounts due under the Notes and other Loan Docu-
ments, which statements shall be considered correct and
conclusively binding on the Borrower, absent manifest er-
ror, unless the Borrower notifies the Agent to the con-
trary within 30 Business Days of its receipt of any
statement which it deems to be incorrect. The records of
the Agent evidencing the date of disbursement and
principal amount of each Loan and the amounts of all
repayments of principal and payments of interest on each
Loan shall constitute prima facie evidence of the making
and repayment of such Loans and of the payment of such
interest. However, the Agent's making of erroneous
notations in its records shall not affect the Borrower's
obligation to repay the outstanding balance of principal
under a Loan, and accrued interest thereon, as provided
in this Loan Agreement. All sums payable to the Lenders
under the Notes and other Loan Documents shall be paid
directly to the Agent in its capacity as such, not later
than 10:00 a.m. (Honolulu time) on the date when due, in
immediately available funds. Alternatively, at its sole
discretion, the Agent may charge against any deposit
account which the Borrower maintains with the Agent all
or any part of any amount due under the Notes and other
Loan Documents.
2.10 Payment Dates. Whenever any payment of
principal of, or interest on, any Loan or of any commit-
ment fee shall be due on a day which is not a Business
Day, the date for payment thereof shall be extended to
the next succeeding Business Day. If the date for any
payment of principal is extended by operation of law or
otherwise, interest shall be payable for such extended
time.
2.11 Funding Loss and Yield Protection Provi-
sions.
(a) Change in Legality; Additional Costs to
Lenders. If after the date of this Loan Agreement any
change in applicable law or regulation or in the
interpretation or administration thereof by any
governmental authority charged with the interpretation or
administration thereof (whether or not having the force
of law) shall, with respect to the Lenders, or any of
them, (i) change the basis of taxation of payments to the
Lenders, or any of them, or the principal or interest on
the Loans under this Loan Agreement, (ii) impose, modify
or hold applicable any fees, reserve requirements, spe-
cial deposits or any costs to the Lenders, or any of
them, in respect of the Loans, or (iii) cause a reduction
in the amount of any sum received or receivable here-
under; then, and in any such event, the Borrower shall
pay to the Agent, on demand, for distribution to such
Lender(s), such additional amounts as will compensate
such Lender(s) on an after-tax basis for such cost or
reduction incurred; provided, however, that the Borrower
shall not be obligated directly or indirectly to pay for
federal or state income taxes measured or levied
generally upon the net income of any Lender. The Lenders
may use any reasonable method in calculating their ad-
ditional costs under this Section, which calculation
shall be conclusive absent manifest error.
(b) Capital Requirements. If the Lenders, or
any of them, shall determine that compliance with any
law, regulation or any guideline or request from any
central bank or other governmental authority (whether or
not having the force of law) would result in an increase
in the amount of capital required or expected to be
maintained by such Lender(s) or any corporation
controlling such Lender(s), and that such increase is
based upon the existence of such Lender's commitment
hereunder and other commitments of this type, then, and
in any such event, the Borrower shall pay the Agent as an
additional fee, from time to time on demand, for
distribution to such Lender(s), such amount(s) as such
Lender(s) shall determine to be the amount(s) that will
compensate it or them or such other corporation for any
reduction in the rate of return on such capital. A cer-
tificate as to the amount of compensation, submitted to
the Borrower by the affected Lender(s), shall be
conclusive and binding for all purposes absent manifest
error.
III. Conditions Precedent
3.01 Documents Required. The Lenders shall
have no several obligations to make disbursements of
Loans pursuant to the provisions of this Loan Agreement,
unless and until the Lenders (through the Agent) shall
have received such executed originals or certified copies
of each of the following instruments as the Lenders
(through the Agent) may have reasonably requested, in
each case in form and substance acceptable to the Lenders
and their respective legal counsel:
(A) This Loan Agreement, the Notes, the Xxxx-
xxxx, an Additional Security Mortgage in the form of Ex-
hibit G attached to the Original Mortgage, UCC Financing
Statements describing the security interests created by
the Mortgage and Additional Security Mortgage, and the
Environmental Indemnity Agreement;
(B) The Agency Agreement;
(C) A certificate signed by the Borrower's
corporate secretary, certifying to the Lenders and Agent:
(1) as to the adoption of Resolutions of the Borrower's
Board of Directors authorizing the execution, delivery
and performance of the Loan Documents and all other
documents to be delivered by the Borrower pursuant to
this Loan Agreement; (2) as to the incumbency and
signatures of the officers of the Borrower signing the
Loan Documents, and each other document to be delivered
by the Borrower pursuant to this Loan Agreement; and (3)
that the Articles of Incorporation and By-Laws of the
Borrower, true copies of which have been attached to such
certification, have not been amended since the date of
such delivery;
(D) A certificate of the Director of Commerce
and Consumer Affairs of the State of Hawaii, evidencing
the good standing of the Borrower in the State of Hawaii;
(E) A written opinion of independent counsel
to the Borrower, addressed to the Lenders, stating that:
(1) The Borrower and the Subsidiaries are
corporations duly organized, validly existing and in good
standing under the Laws of the State of Hawaii and are
duly qualified and in good standing as foreign corpora-
tions in all jurisdictions wherein the nature of their
businesses or the properties owned by them make such
qualification necessary;
(2) The Borrower has the corporate power
and authority to execute and deliver the Loan Documents,
to borrow money hereunder, and to perform the
Obligations;
(3) All corporate action required to be
taken by the Borrower to enter into the transactions con-
templated by this Loan Agreement has been duly taken, and
all consents and approvals of all Persons, necessary to
the validity of the Loan Documents, and each other docu-
ment to be delivered by the Borrower hereunder have been
duly obtained, and the Loan Documents and such other
documents do not conflict with any provision of the
Articles of Incorporation or By-Laws of the Borrower, or
of any applicable Laws or any other agreement binding
upon the Borrower or its property of which such counsel
has knowledge and the Borrower's execution, delivery and
performance of the Loan Documents do not require the
consent or approval of any governmental body or
regulatory authority;
(4) The Loan Documents and all other
documents required to be delivered by the Borrower pur-
suant to the provisions of this Loan Agreement have been
duly executed by, and each is a valid and binding obliga-
tion of, the Borrower, enforceable in accordance with its
terms;
(5) Kapalua Land Company, Ltd. ("KLC")
has the corporate power and authority to execute and
deliver the Additional Security Mortgage, all corporate
action required to be taken by KLC in respect of its
execution and delivery of the Additional Security
Mortgage has been duly taken, and the Additional Security
Mortgage has been duly executed and delivered by KLC and
is a valid and binding obligation of KLC, enforceable in
accordance with its terms; and
(6) Such counsel is without any knowledge
of any matters contrary to the representations and war-
ranties contained in Section 4.01 of this Loan Agreement;
and
(F) A certificate dated the date of this Loan
Agreement and signed by the President or an Executive
Vice President of the Borrower, certifying to the Lenders
and Agent that:
(1) The representations and warranties
contained in Section 4.01 of this Loan Agreement are true
on and as of such date; and
(2) No Event of Default under this Loan
Agreement, and no event which, with the giving of notice
or passage of time, or both, would become such an Event
of Default, has occurred on and as of such date;
(G) Evidence that the Revolving and Term Loan
Agreement dated as of December 27, 1990, as amended by
instruments dated as of December 31, 1991 and March 31,
1992, among Bank of Hawaii, First Hawaiian Bank and Bank
of America National Trust and Savings Association
(successor-in-interest to Security Pacific National
Bank), as Lenders, Bank of Hawaii, as Agent, and the
Borrower, together with the Notes and Agency Agreement
therein described, have been terminated, and that all
Loans and all other indebtedness of the Borrower
thereunder have been repaid or paid in full (or that
arrangements, acceptable to the Lenders and Agent
thereunder, the Lenders and Agent hereunder, and the
Borrower, have been made for the repayment of said Loans
and the payment of all such other indebtedness from the
proceeds of the initial Loans under this Loan Agreement);
and
(H) Evidence that the Mortgage and Additional
Security Mortgage have been recorded in the Bureau of
Conveyances of the State of Hawaii (and, if appropriate,
filed in the Office of the Assistant Registrar of the
Land court of Hawaii), that the related UCC Financing
Statements have been filed in said Bureau, and that the
Lenders hold a first mortgage lien on and first security
interest in all properties described in and purported to
be encumbered by the Mortgage and Additional Security
Mortgage, subject to no liens or encumbrances other than
those noted in (or authorized by) the Mortgage.
In addition to the foregoing conditions precedent,
the following conditions shall have been satisfied:
(I) At the time of the initial disbursement of
Loan proceeds under this Loan Agreement, the Borrower
shall have paid to the Lenders, through the Agent, a
$75,000 Loan extension fee.
(J) At the time of the initial disbursement of
Loan proceeds under this Loan Agreement and of each sub-
sequent disbursement of Loan proceeds under this Loan
Agreement:
(1) No Event of Default under this Loan
Agreement shall have occurred and be continuing, and no
event shall have occurred and be continuing that, with
the giving of notice or passage of time, or both, would
become such an Event of Default;
(2) The Agent shall have received a tele-
phonic request for such disbursement pursuant to Section
2.03 of this Loan Agreement, immediately followed by con-
firmation in writing signed by an authorized officer of
the Borrower;
(3) The representations and warranties
contained in Section 4.01 of this Loan Agreement shall be
true on and as of the date of such disbursement with the
same force and effect as if made on and as of such date;
(4) The Lenders shall have remitted to
the Agent the Lenders' respective pro rata shares of the
disbursement then due; and
(5) All legal matters incidental to such
disbursement shall be satisfactory to the Agent's
counsel.
The parties hereto acknowledge that the foregoing
conditions precedent set forth in this Section 3.01 have
heretofore been satisfied with respect to the initial
disbursement of Loan proceeds.
3.02 Conditions Precedent to Effective Date of
Amendment and Restatement. Notwithstanding anything
herein to the contrary, the effectiveness of the
amendment and restatement of the Original Loan Agreement
in accordance with the terms of this Amendment and
Restatement, is subject to the satisfaction of all of the
following conditions, and on the date of the satisfaction
of such conditions (the "Effective Date"), the Original
Loan Agreement shall be deemed amended and restated as
set forth herein:
(a) Documents Required. The Agent shall have
received, in each case in form and substance satisfactory
to the Agent and the Lenders, such fully executed origi-
nals or certified copies as the Agent and the Lenders may
have requested of each of the following, in each case as
amended through the Effective Date:
(1) Loan Documents. This Amendment and
Restatement, and three separate Amended and Restated Re-
volving Notes in the form of Annex I, Annex II and Annex
III, respectively (each called an "Amended and Restated
Revolving Note" and collectively called the "Amended and
Restated Revolving Notes"), each executed by the Borrower
and completed in conformity with the provisions of this
Amendment and Restatement;
(2) Consents and Authority. Evidence
that the Borrower has obtained all necessary and
appropriate authority, approvals and consents to execute,
deliver and perform the terms of (i) this Amendment and
Restatement and the Amended and Restated Revolving Notes
(collectively called the "Amending Documents") and (ii)
the Loan Documents, as amended and restated by the
Amending Documents, including, without limitation,
certified resolutions of the Borrower as to such author-
ity.
(b) Certain Other Events. On the Effective
Date:
(1) No event shall have occurred and be
continuing that (i) constitutes an Event of Default, or
(ii) with the giving of notice or passage of time, or
both, would constitute such an Event of Default (a "De-
fault").
(2) The representations and warranties
contained in Section 4.01 of this Loan Agreement shall be
true on and as of the Effective Date with the same force
and effect as if made on the Effective Date, other than
as previously disclosed to the Agent with respect to the
representations and warranties set forth in Section
4.01(F) and (K) hereof.
(3) No material adverse change shall have
occurred in the financial condition of the Borrower since
the date of the most recent of the Borrower's financial
statements submitted to the Agent.
(4) The Borrower shall have delivered to
the Agent and the Lenders a certificate dated the Effec-
tive Date, signed by the President or an Executive Vice
President of the Borrower, certifying to the Agent and
the Lenders the matters set forth in clauses (1) and (2)
of Section 3.01(F) of this Loan Agreement.
(5) All legal matters incidental to the
closing shall be satisfactory to legal counsel for the
Agent and each Lender.
(c) Interest and Other Charges. On the Effec-
tive Date, the Borrower shall have paid to the Agent (i)
the $25,000 extension fee referred to in Section 2.05(c)
hereof, and (ii) all sums of accrued interest and other
fees and charges then outstanding under the Loan Docu-
ments.
On the Effective Date, subject to the satisfaction
of the foregoing conditions, the Original Loan Agreement
and each of the Revolving Notes shall be deemed amended
and restated in accordance with the provisions of this
Amendment and Restatement and the Amended and Restated
Revolving Notes, with the force and effect set forth in
Section 7.18 hereof.
3.03 Conditions to Term Loans. The obligation
of the Lenders to make their respective Term Loans to the
Borrower on the Expiry Date shall be subject to the
satisfaction of the following conditions precedent:
(a) Term Notes. The Borrower shall have ex-
ecuted and delivered to the Agent for distribution to the
Lenders each of the Term Notes;
(b) Defaults and Events of Default. No
Default or Event of Default under this Loan Agreement
shall have occurred and be continuing;
(c) Representations and Warranties. The
representations and warranties contained in Section 4.01
of this Loan Agreement shall be true on and as of the
Expiry Date with the same force and effect as if made on
the Expiry Date;
(d) Certificate. The Borrower shall have de-
livered to the Agent and the Lenders a certificate dated
the Expiry Date, signed by the President or an Executive
Vice President of the Borrower, certifying to the Agent
and the Lenders the matters set forth in clauses (1) and
(2) of Section 3.01(F) of this Loan Agreement; and
(e) Illegality. The making of the Term Loans
shall not have been rendered illegal by any of the Laws
applicable thereto.
If such conditions shall not have been satisfied on
Expiry Date, all outstanding principal together with ac-
crued and theretofore unpaid interest on the Revolving
Loans and all other amounts due to the Lenders under the
Loan Documents shall be paid in full on the Expiry Date.
IV. Representations and Warranties
4.01 Original. To induce the Lenders to enter
into this Loan Agreement, the Borrower represents and
warrants to the Lenders as follows:
(A) The Borrower and the Subsidiaries are cor-
porations duly organized, validly existing and in good
standing under the Laws of Hawaii; the Borrower and the
Subsidiaries have the lawful corporate power and adequate
authority, rights and franchises to own or lease their
respective properties and to engage in the businesses
they each conduct, and each is duly qualified and in good
standing as a foreign corporation in each jurisdiction,
if any, wherein the nature of the business transacted by
it or property owned by it makes such qualification
necessary;
(B) The execution and performance of the Loan
Documents will not immediately, or with the passage of
time or the giving of notice, or both:
(1) Violate the Articles of Incorporation
or By-Laws of the Borrower, or violate any Laws or breach
or result in a default under any contract, agreement, or
instrument to which the Borrower or any Subsidiary is a
party or by which the Borrower or any Subsidiary or its
property is bound, or require the consent or approval of
any governmental office or official; or
(2) Result in the creation (or an obliga-
tion to create) or imposition of any security interest
in, or lien or encumbrance on, any of the assets of the
Borrower or any Subsidiary, other than the liens or
security interests intended to be created by the Mortgage
and by the Additional Security Mortgage described in
Section 5.01(B) of this Loan Agreement;
(C) The Borrower has the corporate power and
authority to execute and deliver the Loan Document and to
incur and perform the Obligations, and has taken all cor-
porate action necessary to authorize the execution,
delivery, and performance of the Loan Documents;
(D) The Borrower's execution, delivery and
performance of the Loan Documents do not require the
consent or approval of any governmental body or other
regulatory
authority;
(E) This Loan Agreement is, and the remainder
of the Loan Documents when executed and delivered will
be, the legal, valid and binding obligations of the
Borrower, and enforceable in accordance with their
respective terms;
(F) All Financial Statements heretofore fur-
nished by the Borrower to the Lenders, including any
schedules and notes pertaining thereto, were prepared in
accordance with generally accepted accounting principles
consistently applied, and fully and fairly presented the
financial condition of the Borrower and its Subsidiaries
at the dates thereof and the results of operations for
the periods covered thereby, and as of the date of this
Loan Agreement there have been no material adverse
changes in the consolidated financial condition or
business of the Borrower and its Subsidiaries from
September 30, 1992;
(G) Except as otherwise permitted by this Loan
Agreement, the Borrower and its Subsidiaries have filed
all federal, state and local tax returns and other
reports they were required by Laws to have filed prior to
the date of this Loan Agreement and which are material to
the conduct of their respective businesses, have paid or
caused to be paid all taxes, assessments and other
governmental charges that were due and payable prior to
the date of this Loan Agreement, and have made adequate
provision for the payment of such taxes, assessments or
other charges accruing but not yet payable; and the
Borrower has no knowledge of any deficiency or additional
assessment in a materially important amount in connection
with any taxes, assessments or charges not provided for
on its books;
(H) Except to the extent that the failure to
comply would not materially interfere with the conduct of
the business of the Borrower or any Subsidiary or have a
materially adverse effect on the financial condition of
the Borrower or any Subsidiary, the Borrower and its Sub-
sidiaries have complied with all applicable Laws in re-
spect of: (1) restrictions, specifications, or other re-
quirements pertaining to products that the Borrower or
any Subsidiary grows, manufactures or sells or to the
services each performs; (2) the conduct of their respec-
tive businesses; and (3) the use, maintenance, and oper-
ation of the real and personal properties owned or leased
by them in the conduct of their respective businesses;
(I) There are no chemical substances, pollut-
ants, contaminants or hazardous or toxic substances,
materials or wastes (collectively, "hazardous materials")
at any premises owned, leased, operated, controlled or
used by the Borrower or any of the Subsidiaries where
such could reasonably be expected to have a materially
adverse effect on the operations or financial condition
of the Borrower and the Subsidiaries or the Borrower's
ability to repay the Loans, and the Borrower and the
Subsidiaries do not manufacture, process, distribute,
use, treat, store, dispose of, transport or handle
hazardous materials in such a manner as to create
expectations of such a materially adverse effect on the
operations or financial condition of the Borrower and the
Subsidiaries or the Borrower's ability to repay the
Loans;
(J) The Borrower has no Subsidiaries other
than those listed in Exhibit H, attached to the Original
Loan Agreement;
(K) No litigation or other proceeding is pend-
ing or threatened against the Borrower or any of its Sub-
sidiaries or any of their respective properties which, if
determined adversely to the Borrower or any such Subsid-
iary, would have a materially adverse effect on the con-
solidated financial condition or business prospects of
the Borrower and its Subsidiaries;
(L) Neither the execution of this Loan Agree-
ment nor the Borrower's use of proceeds of the Loans will
constitute a violation of any of Regulations G, T and U
of the Board of Governors of the Federal Reserve System
or any interpretations thereof or rulings thereunder;
(M) The Borrower and its Subsidiaries have
good and marketable title to all of their respective
assets, subject only to such exceptions or encumbrances
as do not materially adversely affect either the
consolidated financial conditions of the Borrower and its
Subsidiaries as currently reflected in the Financial
Statements or the conduct of the businesses of the
Borrower and its Subsidiaries;
(N) All Defined Benefit Pension Plans, as de-
fined in the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), of the Borrower and each Sub-
sidiary meet the minimum funding standards of 302 of
ERISA, and no Reportable Event or Prohibited Transaction,
as defined in ERISA, has occurred in respect of any such
Plan;
(O) No representation or warranty by the Bor-
rower contained in this Loan Agreement or in any certif-
icate or other document furnished by the Borrower
pursuant to this Loan Agreement contains any untrue
statement of material fact or omits to state a material
fact necessary to make such representation or warranty
not misleading in light of the circumstances under which
it was made; and
(P) Neither the Borrower nor any Subsidiary is
subject to provisions of the Investment Company Act of
1940, provisions of the Public Utility Holding Company
Act of 1935, provisions of the Interstate Commerce Act or
provisions of any other statute or regulation which
restrict the execution or performance of this Loan
Agreement or the Notes by the Borrower.
4.02 Survival. All representations and war-
ranties stated above in Section 4.01 shall survive until
all the Obligations shall have been satisfied in full.
V. The Borrower's Covenants
The Borrower covenants to and agrees with the
Lenders that, so long as any of the Obligations shall re-
main unsatisfied or any commitments hereunder remain out-
standing, the Borrower will comply, and will cause its
Subsidiaries to comply, with the following covenants:
5.01 Affirmative Covenants.
(A) The Borrower will furnish to the Lenders,
through the Agent:
(1) Within 60 days after the close of
each quarterly accounting period in each fiscal year:
(a) a consolidated statement of Net Worth and a con-
solidated statement of cash flow of the Borrower and its
Subsidiaries for such quarterly period; (b) a xxxxxxx-
dated income statement of the Borrower and Subsidiaries
for such quarterly period; (c) a consolidated balance
sheet of the Borrower and Subsidiaries as of the end of
such quarterly period; (d) a certification by the
Borrower's chief financial officer, in reasonable detail,
evidencing the Borrower's compliance at the end of such
quarterly accounting period with the covenants contained
in Sections 5.01 and 5.02 of this Loan Agreement; (e)
summary schedules of income and cash flow for the
Borrower's resort division and pineapple division and
Kaahumanu Center, all in reasonable detail, subject to
year-end audit adjustments and certified by the
Borrower's President or principal financial officer to
have been prepared in accordance with generally accepted
accounting principles consistently applied by the
Borrower and Subsidiaries, except for any inconsistencies
explained in such certificate; and (f) a written summary
(in reasonable detail) of all projects approved by the
Borrower or any of its Subsidiaries during such quarterly
period which are reasonably expected to involve Capital
Expenditures exceeding $1,000,000;
(2) Within 90 days after the close of
each fiscal year: (a) a consolidated statement of Net
Worth and a consolidated statement of cash flow of the
Borrower and its Subsidiaries for such fiscal year; (b) a
consolidated income statement of the Borrower and
Subsidiaries for such fiscal year; (c) a consolidated
balance sheet of the Borrower and Subsidiaries as of the
end of such fiscal year (all of the aforementioned xxxxx-
cial statements to be certified to without qualification
by independent certified public accountants selected by
the Borrower); (d) summary schedules of income and cash
flow for the Borrower's resort division, pineapple
division and Kaahumanu Center; (e) detailed statements of
Capital Expenditures and Investments made or incurred in
such fiscal year, all of the foregoing to be in
reasonable detail, including all supporting schedules and
comments; and (f) a certification by the chief financial
officer of the Borrower, in reasonable detail, evidencing
the Borrower's compliance at the end of such fiscal year
with the covenants contained in Sections 5.01 and 5.02 of
this Loan Agreement;
(3) By December 1 of each year, (a)
copies of the Borrower's three-to-five year summary
forecast of income and cash flow for the Borrower's
resort division, pineapple division and Kaahumanu Center,
and (b) a Capital Expenditure and Investment forecast for
each such division;
(4) Promptly after the sending or making
available or filing of the same, copies of all reports,
proxy statements and financial statements that the Bor-
rower sends or makes available to its stockholders and
all registration statements and reports that the Borrower
files with the Securities and Exchange Commission or any
successor Person; and
(5) Within 60 days following the close of
each quarterly accounting period subsequent to the
organization of KCA, statements of KCA's net worth at the
end of such period and cash flow for such period, KCA's
income statement for such period, and KCA's balance sheet
as of the end of such period, in reasonable detail,
certified to by KCA's chief financial officer.
(B) On or before March 31, 1993, the Borrower
will execute and deliver to the Lenders an Additional Se-
curity Mortgage, in substantially the form of the Xxxx-
xxxx attached to the Original Loan Agreement as Exhibit
B, constituting a first mortgage lien on the "Village
Golf Course" properties currently owned by the Borrower,
and will cause said Additional Security Mortgage (and a
related UCC Financing Statement to be executed by the
Borrower) to be duly recorded in the Bureau of
Conveyances of the State of Hawaii (and, if appropriate,
filed in the Office of the Assistant Registrar of the
Land Court of Hawaii), and will provide to the Lenders
evidence (which may be in the form of an opinion of
Borrower's independent legal counsel) that the properties
encumbered by said Additional Security constitute one or
more duly subdivided lots, capable of being mortgaged in
compliance with applicable subdivision laws and
ordinances.
(C) The Borrower and its Subsidiaries will
maintain their real estate and other properties in good
condition and repair (normal wear and tear excepted), and
will pay and discharge or cause to be paid and discharged
when due, the cost of repairs to or maintenance of the
same, and will pay or cause to be paid all of their in-
debtedness as it becomes due, except as otherwise permit-
xxx by Section 5.01(E) of this Loan Agreement.
(D) The Borrower and its Subsidiaries will
maintain, or cause to be maintained, public liability in-
surance and fire and extended coverage insurance on all
assets owned or leased by them, all in such form and
amounts as are consistent with industry practices. The
Borrower and its Subsidiaries may procure any such insur-
ance from any insurance company or companies authorized
to do business in Hawaii.
(E) The Borrower and its Subsidiaries will pay
or cause to be paid when due, all taxes, assessments and
charges or levies imposed upon them or on any of their
property or which any of them is required to withhold and
pay over, except where contested in good faith by appro-
priate proceedings with adequate reserves therefor having
been set aside on their books, and the Borrower will pay
all governmental charges or taxes (except income, xxxx-
chise or similar taxes) at any time payable or ruled to
be payable in respect of the existence, execution or
delivery of this Loan Agreement and the Notes by reason
of any existing or hereafter enacted federal or state
statute.
(F) The Borrower will maintain:
(1) At all times on and after January 1,
1994, a Current Ratio of not less than 1.90;
(2) A Recourse Debt/Net Worth Ratio of
not more than (a) 0.80 at December 31, 1995, March 31,
1996, and September 30, 1996, and (b) 0.70 at
December 31, 1996 and thereafter (for the purposes of
this covenant, KCA's debt approved by the Lenders pur-
suant to the last sentence in Section 5.02(I) of this
Loan Agreement, and any KCA debt which is nonrecourse to
the Borrower, shall be disregarded); and
(3) A minimum Net Worth of at least (a)
$57,000,000 at December 31, 1995, and thereafter, (b) an
amount equal to the sum of (i) $57,000,000, plus (ii) 50%
of the cumulative net profits (but no the net losses) of
the Borrower.
(G) The Borrower and its Subsidiaries will,
when requested so to do, make available for inspection by
the Agent's duly authorized representatives any of their
properties and Records, and will furnish to the Lenders
(through the Agent) any information regarding their busi-
ness affairs and financial condition within a reasonable
time after written request therefor.
(H) The Borrower and its Subsidiaries will
take all necessary steps to preserve their respective
corporate existences and to comply with all present and
future Laws applicable to them in the operation of their
respective businesses and to comply with all material
agreements to which they are subject (the foregoing to
the contrary notwithstanding, the Borrower shall have the
right to dissolve or liquidate such of its Subsidiaries
as its management may determine to dissolve or liquidate
in the exercise of sound business judgment).
(I) The Borrower will give immediate written
notice to the Agent, in reasonable detail, of the occur-
rence of any event in respect of which a report on Form
8-K should be filed by the Borrower with the Securities
and Exchange Commission.
(J) The Borrower will notify the Agent imme-
diately if the Borrower becomes aware of the occurrence
of any Event of Default under this Loan Agreement or of
any fact, condition or event that only with the giving of
notice or passage of time, or both, could become such an
Event of Default, or of the failure of the Borrower or
any Subsidiary to observe any of their respective
undertakings under this Loan Agreement.
(K) The Borrower and its Subsidiaries will:
(1) fund all their Defined Benefit Pension Plans in ac-
cordance with no less than the minimum funding standards
of 302 of ERISA; and (2) promptly advise the Agent of the
occurrence of any Reportable Event or Prohibited Transac-
tion in respect of any such Plan.
(L) If the Borrower or any of its
Subsidiaries, during the Term Loan period, or during the
continuance of an Event of Default, or at any other time
following the Agent's notification to the Borrower that
the provisions of this Section 5.01(L) shall be
operative, sell real estate assets worth more than
$1,000,000, in a single transaction or in a series of
related transactions, the Borrower will apply 75% of the
net cash proceeds of the sale(s), after applicable income
taxes arising out of the sale(s), to the repayment of the
Loans promptly upon receipt of such net sales proceeds in
cash. The provisions of this Section 5.01(L) shall not
apply to the disposition of the proceeds of the
Borrower's sale of its West Maui Airport in October,
1992, and a Kahana property in November, 1992, heretofore
disclosed in writing to the Lenders.
(M) The Borrower will, on or before Decem-
ber 31, 1993, (a) cause KCA to be organized and
contribute to KCA all of the Borrower's right, title and
interest in and to "KSC" and the "Additional Parcel," as
those terms are defined in Section 5.02(A) hereof, and
(b) cause KCA to obtain and have in place appropriate
construction financing for KCA's proposed expansion of
the Kaahumanu Shopping Center complex, on terms and
conditions acceptable to the Lenders.
(N) The Borrower will pay to the Agent, on (or
at the Borrower's option before) July 1 of each year, a
$25,000 Agent's Fee for services rendered and to be ren-
dered by the Agent under the Agency Agreement.
5.02 Negative Covenants.
(A) Neither the Borrower nor any Subsidiary
will enter into any merger, consolidation, reorganization
or recapitalization, or reclassify its capital stock, or
substantially change the nature of its business as now
conducted, except that (1) any wholly-owned Subsidiary
may merge with any other Subsidiary provided said
wholly-owned Subsidiary is the surviving entity, (2) any
Subsidiary may merge with the Borrower provided the
Borrower is the surviving entity, (3) the Borrower and
any wholly-owned Subsidiary may make contributions to the
capital of, and receive dividends from, wholly-owned
Subsidiaries, and (4) the Borrower may cause KCA to be
organized between the Borrower or a wholly-owned Sub-
sidiary thereof and the State of Hawaii Employee Retire-
ment System ("ERS"), and the Borrower may contribute to
the capital of KCA all of the Borrower's right, title and
interest in and to the Kaahumanu Shopping Center ("KSC")
and the adjacent 8.4-acre parcel ("Additional Parcel"),
provided that the Borrower or said wholly-owned
Subsidiary shall retain at all times not less than a 50%
general partnership interest in KCA.
(B) Neither the Borrower nor any Subsidiary
will sell, transfer, lease or otherwise dispose of all or
(except in the ordinary course of business as now con-
ducted or except as contemplated by clause (4) of Section
5.02(A), above) any material part of its assets unless,
in respect of such sale or other disposition, the
Borrower shall have complied with all applicable require-
ments stated above in Section 5.01(L) of this Loan
Agreement.
(C) The Borrower will not declare or pay any
dividends, or make any other payment or distribution on
account of its capital stock, except that the Borrower
may declare and pay cash dividends for and in respect of
the third and fourth quarters of 1996, provided that (i)
dividends paid for the third quarter of 1996 do not
exceed 30% of Net Profits through the first three
quarters of 1996 and (ii) cumulative dividends paid in
respect of the third and fourth quarters of 1996 do not
exceed 30% of Net Income for 1996.
(D) Neither the Borrower nor any Subsidiary
will make any Capital Expenditures or any Investments, or
both, in any of the fiscal years listed below in column
(a) which, together with all other Capital Expenditures
and Investments made by the Borrower and its Subsidiaries
in any such fiscal year, will exceed in the aggregate the
amount shown opposite such fiscal year listed below in
column (b):
(a) (b)
1992 $14.0 Million
1993 $13.0 Million
1994 $11.0 Million
1995 $10.0 Million
1996 $ 8.5 Million
1997 $10.0 Million
thereafter $ 9.0 Million
(E) The Borrower will not redeem, purchase or
retire any of its capital stock, except that the Borrower
may redeem, purchase or retire shares of its capital
stock with funds which could have been, but were not,
used for the payment of cash dividends pursuant to the
provisions of Section 5.02(C) of this Loan Agreement
(subject to the limitations therein set forth).
(F) Neither the Borrower nor any Subsidiary
will furnish to any of the Lenders or the Agent any cer-
tificate or other document that will contain any untrue
statement of material fact or that will omit to state a
material fact necessary to make it not misleading in
light of the circumstances under which it was furnished.
(G) Neither the Borrower nor any Subsidiary
will directly or indirectly apply any part of the
proceeds of any of the Loans to the purchasing or
carrying of any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal
Reserve System, or any regulations, interpretations or
rulings thereunder.
(H) Neither the Borrower nor any Subsidiary,
without the prior written consent of all of the Lenders,
will incur, agree to incur, assume, or in any manner be-
come liable in respect of any Indebtedness for Borrowed
Money (recourse or nonrecourse) other than the indebted-
ness evidenced by the Notes and this Loan Agreement and
additional indebtedness which, together with the
indebtedness evidenced by the Notes and this Loan Agree-
ment, shall cause Total Debt to not exceed:
(a) $66,000,000 in the aggregate
principal amount as of December 31, 1993, and
(b) $63,000,000 in the aggregate
principal amount as of March 31, 1994, and
(c) $65,000,000 in the aggregate
principal amount as of June 30, 1994, and
(d) $69,000,000 in the aggregate
principal amount as of September 30, 1994, and
(e) $57,000,000 in the aggregate
principal amount as of December 31, 1994, and
(f) $58,000,000 in the aggregate
principal amount as of March 15, 1995, and
(g) $53,000,000 in the aggregate
principal amount as of May 5, 1995, and
(h) $50,000,000 in the aggregate
principal amount as of December 31, 1995, and
(i) $40,000,000 in the aggregate
principal amount as of December 31, 1996 and thereafter.
For the purposes of this Section 5.02(H), KCA's debt ap-
proved by the Lenders pursuant to the last sentence in
Section 5.02(I) of this Agreement, and any KCA debt which
is nonrecourse to the Borrower, including that portion
subject to Borrower's Limited Payment Guaranty, shall not
be deemed to constitute indebtedness of the Borrower or
any Subsidiary. As used herein, "Borrower's Limited Pay-
ment Guaranty" means any guaranty of the Borrower guaran-
tying payment of indebtedness of KCA relating to the
Kaahumanu Shopping Center.
(I) Neither the Borrower nor any Subsidiary,
without the prior written consent of all of the Lenders,
will hypothecate, pledge, mortgage, grant a security in-
terest in or otherwise encumber (or permit to be encum-
bered) any of its assets now owned or hereafter acquired,
otherwise than in the ordinary course of the business of
the Borrower or such Subsidiary (for purposes of this
Section 5.02(I), encumbrances incurred or created in the
ordinary course of business shall be deemed to include
(a) liens for taxes and governmental (or quasi-
governmental) assessments or similar charges that are not
yet due and payable, (b) pledges or deposits to secure
payment of workers' compensation or to participate in any
fund established under workers' compensation,
unemployment insurance, pensions or similar social
security programs, (c) liens of mechanics, materialmen,
warehousemen, carriers or other similar liens that are
not yet due and payable, (d) good faith pledges or
deposits made to secure performance of bids, tenders,
contracts (other than for the repayment of borrowed
money), leases, statutory obligations, or surety, appeal,
indemnity, performance or similar bonds required in the
ordinary course of business, not exceeding at any one
time outstanding $1,000,000 for all such pledges or
deposits in the aggregate for the Borrower and its
Subsidiaries, (e) retained liens or security interests of
equipment lessors on equipment leased under equipment
leases permitted by this Loan Agreement, (f) retained
liens or security interests of equipment vendors securing
payment of the purchase price of such equipment purchased
on time by the Borrower or its Subsidiaries, and (g)
liens and security interests held by lenders in respect
of the mortgage loans described in Exhibit I attached to
the Original Loan Agreement). Notwithstanding the
foregoing provisions of this Section 5.02(I), the
Borrower or its Subsidiaries may mortgage to ERS, to
secure loan(s) made or to be made by ERS to KCA, all of
the Borrower's or any Subsidiary's interests in the
properties commonly referred to as the Kapalua Bay Hotel,
The Shops at Kapalua Bay, "Site 29," the Bay Club,
Kaahumanu Shopping Center, the 8.4-acre Additional
Parcel, and the Napili Shopping Center properties,
provided that the Borrower shall have first obtained the
Lenders' approval of the terms and conditions of the ERS
loan(s) to KCA and any additional construction financing
for the proposed KSC expansion, and KCA may mortgage its
interests in any and all of the KSC properties (including
the 8.4-acre Additional Parcel), provided that the
Borrower shall have first obtained the Lenders' approval
of the terms and conditions of (a) any construction
financing secured thereby, and (b) any other financing
secured thereby if such financing is made with recourse
to the Borrower or any of its assets other than its joint
venture interest in KCA.
VI. Default
6.01 Events of Default. The occurrence of any
one or more of the following events shall constitute an
Event of Default under this Loan Agreement and the Notes:
(A) The Borrower shall fail to pay when due
any principal or interest or fee or other charge payable
under this Loan Agreement or any of the Notes and such
failure shall continue for a period of five Business
Days.
(B) The Borrower or any Subsidiary shall fail
to observe or perform any other obligation to be observed
or performed by it under this Loan Agreement or any of
the Notes, and such failure shall continue for 30 days
after: (1) notice of such failure from the Agent; or (2)
the Agent is notified of such failure or should have been
so notified pursuant to the provisions of Section 5.01(I)
of this Agreement, whichever is earlier.
(C) Any financial statement, other statement,
representation, warranty or certificate made or furnished
by the Borrower or any Subsidiary to any of the Lenders
or the Agent in connection with this Loan Agreement, or
as an inducement to the Lenders or the Agent to enter
into this Loan Agreement, or in any separate statement or
document delivered pursuant to the provisions of this
Loan Agreement, shall be materially false, incorrect, or
incomplete when made or delivered.
(D) The Borrower or any Subsidiary shall admit
its inability to pay its debts as they mature, or shall
make an assignment for the benefit of any of its credi-
tors.
(E) A decree or order for relief shall be en-
tered by a court having jurisdiction in respect of the
Borrower or any Subsidiary in an involuntary case under
the federal Bankruptcy Code or any other applicable fed-
eral or state bankruptcy, insolvency or similar law, or a
receiver, liquidator, assignee, custodian, trustee, se-
questrator (or similar official) shall be appointed for
the Borrower or any Subsidiary or for any substantial
part of its property, and any such decree or order shall
continue unstayed and in effect for a period of 60
consecutive days.
(F) The Borrower or any Subsidiary shall com-
mence a voluntary case under the federal Bankruptcy Code
or any other applicable federal or state bankruptcy, in-
solvency or similar law, or the Borrower or any Subsid-
iary shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of
the Borrower or any Subsidiary or any substantial part of
its property.
(G) The Borrower or any Subsidiary (i) shall
have failed to pay at its stated due date any
Indebtedness for Borrowed Money in excess of $1,000,000
in the aggregate (other than indebtedness evidenced by
the Notes) and such failure shall have continued beyond
any applicable grace period, or (ii) shall have failed to
observe or perform any term, covenant or provision con-
tained in any agreement or instrument (other than this
Loan Agreement or the Notes) by which it is bound, evi-
dencing or securing or otherwise relating to any
Indebtedness for Borrowed Money in excess of $1,000,000
in the aggregate, and the effect thereof shall have been
the acceleration of the maturity of said indebtedness by
the holder or holders thereof or of any obligations
issued in respect thereof or by a trustee or trustees
acting on behalf of such holder or holders.
(H) A final judgment which alone or with other
outstanding final judgments against the Borrower or any
Subsidiary exceeds $3,000,000 in the aggregate and (i)
such judgment shall not be discharged or fully bonded
against within 60 days, or (ii) within 60 days after
entry of such judgment, execution shall not be stayed
pending appeal, or (iii) such judgment shall not be
discharged within 60 days after expiration of any such
stay.
6.02 Rights and Remedies. If an Event of De-
fault shall occur and be continuing the Lenders shall
have, in addition to any and all other rights and rem-
edies, legal or equitable, available to the Lenders under
any and all of the Loan Documents or at law, the
following additional rights and remedies:
(a) The absolute right to deny to the Borrower
any further disbursements of Loan proceeds (the Lenders'
obligation to extend any further credit to the Borrower
shall immediately terminate);
(b) The right, at the option of the Lenders,
to declare, without notice, the entire principal amount
and accrued interest for all Loans outstanding under this
Loan Agreement, plus any fees and charges reasonably
incurred by the Agent and/or the Lenders under any of the
Loan Documents, immediately due and payable; and
(c) The right, at the option of the Lenders,
to charge interest on any principal amount outstanding
under this Agreement at a rate per annum equal to one and
one-half percentage points (1.50%) plus the rate of
interest otherwise in effect (the "Default Rate");
(d) The right to the ex parte appointment
without bond of a receiver, without regard to the value
of any collateral or solvency of any party liable for
payment, observance or performance of any of the obli-
gations of the Borrower or any other obligors, owing to
the Lenders under or pursuant to the Loan Documents; and
(e) The Agent and the Lenders may exercise any
and all other rights and remedies, legal or equitable,
available to the Agent and/or the Lenders under the Notes
and under any and all of the other Loan Documents or at
law or in equity.
VII. Miscellaneous
7.01 Further Assurance. From time to time, the
Borrower, the Lenders and the Agent will execute and de-
liver such additional documents and provide such addi-
tional information as may be reasonably required to carry
out the intent of this Loan Agreement.
7.02 Title Insurance and Appraisals. The Lend-
ers will not require that the Borrower provide (or pay
the costs of) title insurance on the properties
encumbered by the Mortgage or Additional Security
Mortgage (collectively, the "Mortgaged Properties").
Although the Lenders have not required that any appraisal
of the Mortgaged Properties be furnished as a condition
precedent to the first disbursement of Loan proceeds, the
Lenders reserve the right to obtain at the Borrower's
expense (and the Borrower agrees to pay all costs of)
appraisals of the Mortgaged Properties, from any
licensed or certified appraiser designated by the
Lenders, from time to time, whenever such appraisals may
be (a) required by any law, rule or regulation applicable
to the conduct of any Lender's business, (b) requested or
directed by any governmental authority charged with the
administration of such law, rule or regulation or any
Lender's compliance therewith, whether or not such
request or direction has the force of law, or (c) when
reasonably deemed appropriate by the Lenders in their
sole discretion (reappraisals referred to in this clause
(c) shall not be required more frequently than annually).
7.03 Enforcement and Waiver by the Lenders.
The Lenders, or the Agent on behalf of the Lenders, shall
have the right at all times to enforce the provisions of
the Loan Documents, as they may be amended from time to
time, in strict accordance with their respective terms,
notwithstanding any conduct or custom on the part of any
of the Lenders or the Agent in refraining from so doing
at any time or times. The failure of the Lenders or the
Agent at any time or times to enforce their rights under
such provisions, strictly in accordance with the same,
shall not be construed as having created a custom in any
way or manner contrary to specific provisions of the Loan
Documents or as having in any way or manner modified or
waived the same. No single or partial exercise of any
right by any Lender or the Agent shall preclude the
further or other exercise thereof. All rights and
remedies of the Lenders and Agent are cumulative and
concurrent and the exercise of one right or remedy shall
not be deemed a waiver or release of any other right or
remedy.
7.04 Expenses of the Lenders and Agent. The
Borrower will, on demand, reimburse to the Lenders and
the Agent all reasonable expenses, including the
reasonable fees and expenses of legal counsel for the
Lenders and the Agent, incurred by any of the Lenders or
the Agent in connection with the negotiation,
preparation, administration, amendment, modification,
waiver, and/or enforcement of the Loan Documents and the
collection or attempted collection of the indebtedness
evidenced by the Loan Documents, or any of them including
but not limited to bankruptcy or reorganization
proceedings.
7.05 Notices. Any notices or consents required
or permitted by this Loan Agreement or the other Loan
Documents shall be in writing and may be delivered in
person or sent by United States mail or by telecopy and
shall be deemed delivered when delivered in person or
when deposited in the United States mail, certified,
postage prepaid, return receipt requested, or when sent
during normal business hours at the place of receipt and
the receipt of which is confirmed in writing if by
telecopy, to the address of the parties as follows, un-
less such address is changed by written notice hereunder:
(A) If to the Borrower:
Maui Land & Pineapple Company, Inc.
P. X. Xxx 000
Xxxxxxx, Xxxx, Xxxxxx 00000
Attention: Executive Vice President, Finance
Telecopy No.: (000) 000-0000
(B) If to the Lenders, in care of the Agent:
Bank of Hawaii
P. X. Xxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: Manager, Corporate Bank Hawaii
Telecopy No.: (000) 000-0000.
7.06 Waiver and Release by the Borrower. To the
maximum extent permitted by applicable law, the Borrower:
(a) Waives notice and opportunity to be heard,
after acceleration of the indebtedness evidenced by the Loan
Documents, before exercise by the Agent or other Lenders of
the remedy of setoff or of any other remedy or procedure
permitted by any applicable law or by any prior agreement with
the Borrower, and, except where specifically required by this
Loan Agreement or by any applicable law, notice of any other
action taken by the Agent or any other Lender;
(b) Waives presentment, demand for payment, notice
of dishonor, and any and all other notices or demands in con-
nection with the delivery, acceptance, performance, or
enforcement of this Loan Agreement, and consents to any
extension of time (and even multiple extensions of time for
longer than the original term), renewals, releases of any
person or organization liable for the payment of the
Obligations under this Loan Agreement, and waivers or
modifications or other indulgences that may be granted or
consented to by the Agent and the Lenders in respect of the
Loans evidenced by this Loan Agreement; and
(c) Releases the Agent and the Lenders and their
respective officers, agents, and employees from all claims for
loss or damage caused by any act or omission on the part of
any of them except willful misconduct.
To the maximum extent permitted by applicable Laws, the Bor-
rower waives notice and opportunity to be heard, after ac-
celeration in the manner provided above in Section 6.02,
before exercise by the Lenders or the Agent of the remedy of
setoff or of any other remedy or procedure permitted by any
applicable Laws or by any agreement with the Borrower or any
Subsidiary, and, except where specifically required by the
Loan Documents or by any applicable Laws, notice of any other
action taken by the Lenders or the Agent.
7.07 Disclosure of Information. The Borrower con-
sents to the Agent's or any Lender's disclosure to the other
Lenders or the Agent of any information held by the disclosing
entity from time to time, financial or otherwise, pertaining
in any way to the creditworthiness or other condition of the
Borrower or any Subsidiary. The Agent and Lenders agree that
they shall maintain confidentiality with regard to nonpublic
information concerning the Borrower and Subsidiaries obtained
from the Borrower, provided that the Agent and Lenders shall
not be precluded from making disclosure regarding such
information: (i) to their own respective counsel, accountants
and other professional advisors, (ii) in response to a
subpoena or order of a court of governmental agency, (iii) to
any entity participating or considering participating in any
credit made under this Loan Agreement, (iv) to any guarantor
or subordinated lender with respect to this Loan Agreement or
(v) as required by law or applicable regulation.
7.08 Applicable Law. The substantive Laws of the
State of Hawaii shall govern the construction of this Loan
Agreement and the Notes and the rights and remedies of the
parties hereto and thereto.
7.09 Binding Effect and Entire Agreement. This Loan
Agreement shall inure to the benefit of, and shall be binding
on, the parties hereto and the respective successors and per-
mitted assigns of the parties hereto. This Loan Agreement,
and the remainder of the Loan Documents, together with all
other documents executed and delivered pursuant to this Loan
Agreement, constitute the entire agreement among the Lenders,
the Agent and the Borrower concerning the subject matter
hereof.
7.10 Amendments; Consents. No amendment, modifica-
tion, supplement, termination, or waiver or forbearance of any
provision of this Loan Agreement or any of the other Loan
Documents, and no consent to any departure by the Borrower
therefrom, may in any event be effective unless in writing
signed by a Majority in Interest of the Lenders and the
Agent, and then only in the specific instance and for the
specific purpose given; provided, however, that no action
shall be taken which has the effect of altering any required
payment of principal, interest or fees, or releasing any
collateral security for the Loans, unless in writing signed by
all of the Lenders and the Agent.
7.11 Assignments.
A. The Borrower shall have no right to assign any
of its rights or obligations under any of the Loan Documents
without the prior written consent of the Lenders.
B. None of the Lenders shall assign any of its
rights or obligations under the Loan Documents without the
prior written consent of the Borrower, which consent shall not
be unreasonably withheld or delayed; provided, however, the
foregoing provision to the contrary notwithstanding, (a) any
of the Lenders may sell participations in Loans made or to be
made by it, to any entity affiliated with such Lender, without
Borrower's consent, so long as such Lender remains primarily
obligated to the Borrower under this Loan Agreement and so
long as the Borrower shall not be obligated in any manner to
deal directly with the affiliated purchaser of such participa-
tion, and (b) any Lender may negotiate, pledge, transfer or
assign the Note held by it (or the receivable evidenced there-
by) to a Federal Reserve Bank or to any other agency or
instrumentality of the United States of America to support
borrowings of Federal funds by such Lender.
C. Subject to the foregoing restrictions, the Bor-
rower consents to each Lender's negotiation, offer, and sale
to third parties ("Participants") of the credit facility
evidenced by the Loan Documents (the "Credit Facility") or
participating interests in the Credit Facility, to any and all
discussions and agreements heretofore or hereafter made
between each Lender and any Participant or prospective
Participant regarding the interest rate, fees, and other terms
and provisions applicable to the Credit Facility, and to each
Lender's disclosure to any Participant or prospective Par-
ticipant, from time to time, of such financial and other
information pertaining to the Borrower and the Credit Facility
as any Lender and such Participant or prospective Participant
may deem appropriate (whether public or non-public,
confidential or non-confidential, and including information
relating to any insurance required to be carried by the
Borrower and any financial or other information bearing on
the Borrower's creditworthiness and the value of any col-
lateral). The Borrower acknowledges that the Lenders' disclo-
sure of such information to any Participant or prospective
Participant constitutes an ordinary and necessary part of the
process of effectuating and servicing the Credit Facility.
7.12 Release of Non-Golf Areas. A purpose of the
Mortgage and of the Additional Security Mortgages herein men-
tioned (collectively, the "Mortgages") is to secure the Obli-
gations by a mortgage lien on the Borrower's and Kapalua Land
Company, Ltd.'s respective interests in three golf courses
commonly known as the "Plantation Course," "Bay Course" and
"Village Course." In view of the fact that the Bay Course and
Village Course have not been duly subdivided so as to consti-
tute one or more duly subdivided lots, the land descriptions
of the Bay Course and Village Course, set forth or to be set
forth in the Mortgages, include lands ("Excess Lands") in
excess of the lands commonly known to comprise the Bay Course
and Village Course. The Lenders agree that the Borrower shall
have the right to subdivide the lands initially described in
the Mortgages as comprising the Bay Course and Village Course,
and to obtain releases of the Excess Lands from the liens of
the Mortgages, upon the following terms and conditions: (a)
the lot or lots to be released from the Mortgages, comprising
the Excess Lands, as well as the lot or lots which are to
remain subject to the Mortgage(s) following the release of the
Excess Lands, shall have been designated as specific lots
approved by all governmental authorities having jurisdiction
over the subdivision thereof; (b) the costs of subdivision and
the costs of preparing the releases shall be borne by the Bor-
rower; (c) the form and content of each release shall be
acceptable to the Lenders; and (d) in connection with any such
release, appropriate provisions shall have been made for
access to and from and utility and similar easements for, any
lot or lots not to be released from the Mortgage(s). Within
fifteen days after the Lenders' declaration of an Event of
Default and of their intention to foreclose the Mortgages, the
Borrower shall commence, and thereafter diligently pursue to
completion, any subdivision necessary to accomplish the
purposes of this Section 7.12, so as to enable the Lenders to
foreclose the Mortgages against all the Golf Courses, while
releasing to the Borrower the Excess Lands. In the event the
Borrower shall not commence such subdivision within said
fifteen-day period, or thereafter diligently pursue the
subdivision to completion, the Lenders shall be entitled at
the Borrower's expense, and are hereby appointed as the duly-
appointed attorneys-in-fact of the Borrower (with full power
of substitution), to commence and/or complete said
subdivision. Said power of attorney is coupled with an
interest, and is irrevocable.
7.13 Right of Setoff; Security Interest in Accounts.
At any time, whether or not an Event of Default shall have oc-
curred, the Agent and each Lender may set off obligations owed
by the Agent or such Lender, as the case may be, to the Bor-
rower (such as balances in checking and savings accounts)
against the Obligations, without first resorting to other col-
lateral. To further secure the Obligations, the Borrower
grants to the Agent and the Lenders a security interest in all
checking, savings, and other deposit accounts now or hereafter
maintained by the Borrower with the Agent and the Lenders.
7.14 Dispute Resolution. Any controversy or claim
arising out or relating to this Agreement or any of the other
Loan Documents shall, at the request of any party, be decided
by binding arbitration conducted in the State of Hawaii
without a judge or jury, under the auspices of the American
Arbitration Association or Dispute Prevention and Resolution,
Inc. in accordance with Chapter 658 of the Hawaii Revised
Statutes and the respective and applicable rules of the
aforementioned organizations. The arbitrator will apply any
applicable statute of limitations and will determine any
controversy concerning whether an issue is arbitrable.
Judgment upon the arbitration award may be entered in any
court having jurisdiction. The prevailing party will be
entitled to recover its reasonable attorney's fees and costs
as determined by the arbitrator. This agreement to arbitrate
shall not limit to restrict the right, if any, of any party to
exercise before, during or following any arbitration
proceeding, with respect to any claim or controversy,
self-help remedies such as setoff, to foreclose a mortgage or
lien or other security interest in any collateral judicially
or by power of sale, or to obtain provisional or ancillary
remedies such as injunctive relief from a court having
jurisdiction. Any party may seek those remedies without
waiving its right to submit the controversy or claim in ques-
tion to arbitration.
7.15 Severability. If any provision of any of the
Loan Documents shall be held invalid under any of the appli-
cable Laws, such invalidity shall not affect any other provi-
sion of any of the Loan Documents that can be given effect
without the invalid provision, and, to this end, the provi-
sions of the Loan Documents are severable.
7.16 Section Headings. The titles of Sections
appear herein as a matter of convenience only, and shall not
affect the construction of this Loan Agreement or any provi-
sion hereof.
7.17 Survival of Certain Payment Obligations. The
obligations of the Borrower to indemnify the Lenders against,
and pay and reimburse to the Lenders, the costs and expenses
referred to in Section 7.04 of this Loan Agreement (a) shall
survive the repayment of the Loans and termination of this
Loan Agreement to the extent such losses, costs and expenses
are specifically billed to the Borrower within 60 days after
full repayment of the Loans and termination of this Agreement,
and (b) shall not survive the repayment of the Loans and
termination of this Loan Agreement to the extent of any such
costs or expenses which are not specifically billed to the
Borrower within 60 days after full repayment of the Loans and
termination of this Loan Agreement.
7.18 Amendment and Restatement; Amendment of Loan
Documents. (a) On and as of the Effective Date, the Original
Loan Agreement shall be deemed amended and restated in its en-
tirety by this Amendment and Restatement, which shall
supercede the terms and provisions of the Original Loan
Agreement with respect to all Obligations from and after the
date of this Amendment and Restatement. The Borrower, the
Lenders and the Agent acknowledge and agree that this
Amendment and Restatement constitutes only an amendment and
restatement of the Original Loan Agreement, and in connection
therewith, (i) nothing herein is intended, nor shall it be
construed, to constitute a refinancing of the indebtedness
under the Original Loan Agreement, (ii) all outstanding
Obligations under the Original Loan Agreement and the "Loan
Documents" referred to therein, as amended, shall continue to
be outstanding under this Amendment and Restatement and the
Loan Documents referred to herein and (iii) all Obligations
owing from and after the Effective Date shall be paid, per-
formed and observed in accordance with the terms of this
Amendment and Restatement and the other Loan Documents, as so
amended restated and as may be further amended from time to
time.
(b) The Borrower, the Lenders and the Agent agree
that from and after the Effective Date, all references to (i)
the Original Loan Agreement (including, without limitation,
references to "Revolving and Term Loan Agreement", the "Loan
Agreement" or "Agreement" or other defined terms) set forth in
the Notes, the Mortgage, the Environmental Indemnity
Agreement, the Additional Security Mortgage and any other Loan
Documents, as amended, shall mean the Original Loan Agreement,
as amended and restated by this Amendment and Restatement and
as may be further amended from time to time, (ii) the
Revolving Notes, or any of them, shall mean such Revolving
Note(s), as heretofore amended, as respectively amended and
restated by the Amended and Restated Revolving Notes referred
to herein and as may be further amended from time to time and
(iii) any of the other Loan Documents shall mean such Loan
Documents, as heretofore amended, as amended and restated by
this Amendment and Restatement and the Amended and Restated
Revolving Notes, and as amended by the Amended and Restated
Revolving Notes and as may be further amended from time to
time.
(c) All Exhibits, schedules and other attachments
to the Original Loan Agreement are hereby incorporated herein
by reference and shall be deemed to constitute Exhibits,
schedules and attachments to this Amendment and Restatement.
7.17 Execution in Counterparts. This Amendment and
Restatement may be executed in any number of counterparts,
each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Borrower, the Lenders and
the Agent have duly executed this Loan Agreement, the
execution of this Loan Agreement by the Borrower constituting
(a) the personal certification of the persons signing this
Loan Agreement on behalf of the Borrower that, to the best of
their knowledge, the representations and warranties made in
Article IV of this Loan Agreement are true and correct as of
the date of this Loan Agreement, and (b) the undertaking of
such persons and of the Borrower that each request for a
disbursement of Loan proceeds, made pursuant to Section 2.03
of this Loan Agreement, shall constitute the Borrower's
affirmation and the personal affirmation on the part of the
persons making such request that, to the best of their
knowledge at the time of the making of any
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such request, (i) the representations and warranties stated in
Section 4.01 of this Loan Agreement are true and correct, (ii)
no Event of Default under this Loan Agreement has occurred and
is continuing, and (iii) no event has occurred and is continu-
ing that, with the giving of notice or passage of time, or
both, would become such an Event of Default.
MAUI LAND & PINEAPPLE
COMPANY, INC.
/S/ XXXX X. XXXXX
By: _____________________________
Its EXECUTIVE VICE PRESIDENT/FINANCE
/S/ XXXX X. XXXXXXX
By: _____________________________
Its PRESIDENT
BANK OF HAWAII, individually and
as Agent
/S/ XXXXX X. XXXX
By: _____________________________
Its VICE PRESIDENT
FIRST HAWAIIAN BANK
/S/ XXX X. X. XXX
By: _____________________________
Its ASSISTANT VICE PRESIDENT
CENTRAL PACIFIC BANK
/S/ XXXXXX X. XXXXXXXX
By: _____________________________
Its VICE PRESIDENT
