LOAN MODIFICATION AGREEMENT
(September 2001)
THIS AGREEMENT effective as of September 30, 2001, by and
among MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii corporation
(the "Borrower"), BANK OF HAWAII, a Hawaii banking corporation
("BOH"), FIRST HAWAIIAN BANK, a Hawaii banking corporation
("FHB"), CENTRAL PACIFIC BANK, a Hawaii banking corporation
("CPB") (BOH, FHB and CPB are each sometimes called a "Lender"
and collectively called the "Lenders"), and BANK OF HAWAII, as
Agent for the Lenders to the extent and in the manner provided in
the Loan Documents described below and in the Agency Agreement
described in the Loan Agreement described below (in such
capacity, the "Agent"), and KAPALUA LAND COMPANY, LTD., a Hawaii
corporation ("Accommodation Party")
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and Bank of America,
National Trust and Savings Association ("BOA") (the Lenders and
BOA are collectively called the "Original Lenders") and the Agent
are parties to that certain Revolving and Term Loan Agreement,
dated as of December 31, 1992, as amended by a First Loan
Modification Agreement, dated as of March 1, 1993, and
supplemented by letter agreements dated April 30, 1993 and June
24, 1993, and further amended by Second Loan Modification
Agreement, dated September 8, 1993, by a Third Loan Modification
Agreement, dated September 30, 1993, by a Fourth Loan
Modification Agreement, dated March 8, 1994, by a Fifth Loan
Modification Agreement, dated effective as of December 31, 1994,
by a Sixth Loan Modification Agreement, dated effective as of
March 31, 1995, and by a Seventh Loan Modification Agreement
dated effective as of December 31, 1995, each among the Borrower,
the Original Lenders and the Agent (as so amended and
supplemented, the "Original Loan Agreement");
WHEREAS, the Original Loan Agreement and the other "Loan
Documents" referred to therein, as respectively amended, set
forth the terms and conditions upon which the Original Lenders
(i) have made available to the Borrower the Revolving Loans in
the original aggregate principal amount of up to $40,000,000 at
any one time outstanding (subject to mandatory reduction, from
time to time, of such aggregate principal amount available) and
(ii) shall make available to the Borrower the Term Loans in an
amount up to the aggregate principal amount of the Revolving
Loans outstanding upon expiration of the Revolving Loan Period,
all as more particularly described therein;
WHEREAS, the parties hereto entered into that certain
Amended and Restated Revolving Credit and Term Loan Agreement
dated December 4, 1996, as amended by letter agreement dated
February 21, 1997, by First Loan Modification Agreement dated
December 31, 1997, and by Second Loan Modification Agreement
dated March 17, 1998 (as so amended, the "First Restatement");
WHEREAS, the parties hereto entered into that certain
Amended and Second Restated Revolving Credit and Term Loan
Agreement dated as of December 4, 1998 ("Second Restatement") to,
among other things, establish a development line in the aggregate
principal amount of $15,000,000, being the Village Course
Facility more particularly described in the Second Restatement;
WHEREAS, the Lenders purchased the interests of BOA under
the Original Loan Agreement and the other Loan Documents referred
to therein;
WHEREAS, the parties hereto entered into that certain 1999
Loan Modification Agreement dated as of December 30, 1999, that
certain 2000 Loan Modification Agreement dated June 30, 2000,
that certain Loan Modification Agreement (December 2000) dated as
of December 11, 2000, and that certain Loan Modification
Agreement (June 2001) dated as of June 30, 2001;
WHEREAS, the performance of Borrower's obligations under the
Loan Documents is secured by the following (collectively, the
"Mortgages"):
(1) Mortgage and Security Agreement dated March 1, 1993,
made by Borrower, as Mortgagor, and recorded in the Bureau of
Conveyances of the State of Hawaii as Document No. 93-036896,
which mortgage was confirmed by instrument dated December 4,
1998, recorded in said Bureau as Document No. 98-185558;
(2) Mortgage and Security Agreement dated March 1, 1993,
made by Borrower, as Mortgagor, and recorded in the Bureau of
Conveyances of the State of Hawaii as Document No. 93-036898,
which mortgage was confirmed by instrument dated December 4,
1998, recorded in said Bureau as Document No. 98-185558; and
(3) Additional Security Mortgage and Security Agreement
dated March 1, 1993, made by KAPALUA LAND COMPANY, LTD., a Hawaii
corporation, ("Accommodation Party") and recorded in the Bureau
of Conveyances of the State of Hawaii as Document No. 93-036900,
which mortgage was amended and confirmed by instrument dated
December 4, 1998, recorded in said Bureau as Document
No. 98-185559;
WHEREAS, Borrower has requested a further modification of
the Loan Documents and Lenders are willing to accommodate such
modification under the terms of this Agreement; and
WHEREAS, the Village Course Facility has been fully drawn
and Borrower is not entitled to any further Advances thereunder;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Lenders and the Agent hereby
agree as follows:
1. The Loan Documents are amended to conform to the
following:
(a) Current Ratio. Section 5.1(e)(1) of the Second
Restatement is amended to read as follows:
(1) A Current Ratio of not less than
1.90; provided, however, that Borrower's
Current Ratio for the fiscal quarter ended
September 30, 2001, shall be not less than
1.50.
2. Upon execution of this Agreement and in consideration
of these amendments:
(a) Borrower shall pay to the Agent, on demand, for
distribution to the Lenders on a pro rata basis, a $1,000.00 work
fee; and
(b) Borrower shall reimburse the Agent for attorneys'
fee incurred by the Agent for the preparation of this Agreement.
3. Capitalized terms used, but not defined, in this
Agreement, shall have the definitions stated in the Loan
Agreement.
4. Borrower and Accommodation Party each agrees that to
its actual knowledge it has no claims, defenses, or offsets
against the Lenders or the Agent with respect to said credit
facility or to the enforcement of the Loan Documents arising
prior to the date of this Agreement and that all such claims,
defenses and offsets are hereby released.
5. The execution of this Agreement by the Borrower
constitutes the certification of the persons signing this
Agreement on behalf of the Borrower that, to the best of their
actual knowledge, the representations and warranties made in
Article IV of the Loan Agreement are true and correct as of the
date of this Agreement.
6. In all other respects, the Loan Documents, as amended,
remain in full force and effect and the provisions of the Loan
Documents including, without limitation, all promises,
representations, warranties, covenants, and conditions, are
ratified and confirmed as of the date of this Agreement by the
parties hereto.
7. Borrower and Accommodation Party acknowledge that the
Mortgages remain in full force and effect and continue to secure
the remaining Loan Documents.
8. This Agreement is binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors
and assigns.
9. The parties hereto agree that this instrument may be
executed in counterparts, each of which shall be deemed an
original, and said counterparts shall together constitute one
and the same agreement, binding all of the parties hereto,
notwithstanding all of the parties are not signatory to the
original or the same counterparts. Duplicate unexecuted pages
of the counterparts may be discarded and the remaining pages
assembled as one document.
To signify their agreement, the parties have executed this
Agreement as of the date first written above.
MAUI LAND & PINEAPPLE COMPANY, BANK OF HAWAII, individually
INC. and as Agent
By:/S/XXXX X. XXXXX By:/S/XXXX X. XXXXXXX
Xxxx X. Xxxxx Xxxx X. XxXxxxx
Its Executive Vice President/ Its Assistant Vice President
Finance
By:/S/XXXX X. XXXXXXX
Xxxx X. Xxxxxxx FIRST HAWAIIAN BANK
Its President
By:/S/XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx
KAPALUA LAND COMPANY, LTD. Its Vice President
By:/S/XXXX X. XXXXX
Xxxx X. Xxxxx CENTRAL PACIFIC BANK
Its Executive Vice President/
Finance By:/S/XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
By:/S/XXXXX X. XXXXXX Its Vice President
Xxxxx X. Xxxxxx
Its Secretary
