FOURTH AMENDMENT TO
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT (this "Agreement") is made effective as of the 14th
day of June, 2001, by and among ALEXANDER & BALDWIN, INC., a Hawaii corporation
(the "Borrower"), FIRST HAWAIIAN BANK, BANK OF AMERICA, N.A., BANK OF HAWAII,
THE BANK OF NEW YORK, WELLS FARGO BANK, NATIONAL ASSOCIATION, and AMERICAN
SAVINGS BANK, F.S.B. (herein called, individually, a "Bank" and, collectively,
the "Banks"), FIRST HAWAIIAN BANK, a Hawaii corporation, as agent for the Banks
(the "Agent"), and BANK OF AMERICA, N.A., as co-agent for the Banks (the
"Co-Agent").
I. BACKGROUND.
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A. The Banks (other than The Bank of New York, Wells Fargo Bank,
National Association and American Savings Bank, F.S.B.), Credit Lyonnais Los
Angeles Branch and Union Bank of California (the "Original Banks") extended a
revolving credit facility with a term loan feature (the "Credit Facility") to
the Borrower and A&B Hawaii, Inc., a Hawaii corporation (the "Original
Borrowers") pursuant to the terms and conditions of that certain Second Amended
and Restated Revolving Credit and Term Loan Agreement dated as of December 31,
1996 (the "Credit Agreement").
B. All capitalized terms used herein shall have the meanings set forth
in the Credit Agreement except as otherwise expressly provided herein.
C. The Original Banks, The Bank of New York, and the Original
Borrowers entered into the First Amendment to the Credit Agreement dated as of
December 10, 1997 (the "First Amendment"), pursuant to which The Bank of New
York became a Bank under the Credit Agreement and pursuant to which Credit
Lyonnais Los Angeles Branch ceased to have any Commitment under the Credit
Agreement.
D. The Banks (other than Wells Fargo Bank, National Association and
American Savings Bank, F.S.B.), Union Bank of California, and the Original
Borrowers entered into the Second Amendment to the Credit Agreement dated as of
November 30 , 1998 (the "Second Amendment"), pursuant to which Union Bank of
California ceased to have any Commitment under the Credit Agreement.
E. The Banks (other than Wells Fargo Bank, National Association and
American Savings Bank, F.S.B.) and the Original Borrowers entered into a Third
Amendment to the Credit Agreement dated as of November 30, 1999 (the "Third
Amendment"), pursuant to which, among other matters, the Termination Date was
extended to November 30, 2001, and A&B-Hawaii, Inc. was deleted as a "Borrower"
under the Credit Facility.
F. The Borrower has requested the Banks to amend the Credit Agreement
to increase the Total Commitment from $140,000,000.00 to $185,000,000.00, and
to include Wells Fargo Bank, National Association and American Savings Bank,
F.S.B. as Banks under the Credit Agreement.
G. The Banks are willing to so amend the Credit Agreement in
accordance with the terms and conditions of this Agreement.
II. AGREEMENTS.
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In consideration of the mutual covenants set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
A. Schedule I. Schedule I to the Credit Agreement is hereby deleted
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and replaced with Schedule I attached hereto. From and after the date hereof,
Wells Fargo Bank, National Association and American Savings Bank, F.S.B. each
shall be a "Bank" under the Credit Agreement.
B. Issuance of Revolving Credit Notes; and Issuance of Rider. On the
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date hereof, and as a condition to the effectiveness of this Agreement, (i)
Borrower shall issue a Revolving Credit Note, dated the date hereof, in the
form of Exhibit A hereto, in the amount of Forty Million Dollars
($40,000,000.00) to Wells Fargo Bank, National Association; (ii) Borrower shall
issue a Revolving Credit Note, dated the date hereof, in the form of Exhibit B
hereto, in the amount of Ten Million Dollars ($10,000,000.00) to American
Savings Bank, F.S.B.; and (iii) Borrower shall issue a First Rider to Revolving
Credit Note, dated the date hereof, in the form of Exhibit C hereto, to Bank of
America, N.A.
C. REALLOCATION OF EXISTING LOANS.
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1. If on the date hereof there shall be any outstanding Term
Loans or Prime Loans, on the date hereof with respect to each such Loan, as
conditions to the effectiveness of this Agreement:
(a) Not later than 8:00 a.m., Hawaii Standard Time, the Agent
shall advise each Bank of such Bank's Proportional Share of such outstanding
Loans determined in accordance with the Commitments set forth on Schedule I
attached hereto (the "Revised Proportional Share") and the amount by which
such Bank's Revised Proportional Share exceeds or is less than such Bank's
Proportional Share determined in accordance with the Commitments set forth on
Schedule I to the Second Amendment (the "Former Proportional Share").
(b) To the extent that any Bank's Revised Proportional Share
exceeds such Bank's Former Proportional Share, such Bank shall, not later than
10:00 a.m., Hawaii Standard Time, provide to the Agent at its office specified
in Section 12.4 of the Credit Agreement, immediately available funds in Dollars
in such amount together with any accrued but unpaid interest on such amount
determined in accordance the Credit Agreement.
(c) To the extent that any Bank's Former Proportional Share
exceeds such Bank's Revised Proportional Share, the Agent shall, not later than
12:00 noon, Hawaii Standard Time, provide to such Bank immediately available
funds in Dollars in such amount together with any accrued but unpaid interest
on such amount determined in accordance the Credit Agreement.
2. If on the date hereof there shall be any outstanding CD Loans
or Eurodollar Loans, each such outstanding CD Loan and Eurodollar Loan shall
remain in effect until the expiration date(s) of the current related Eurodollar
Interest Period(s) or CD Interest Period(s), as applicable. If the Borrower
has elected, pursuant to Section 1.7 B. of the Credit Agreement, to extend such
Loan(s), such outstanding Loan(s) shall be reallocated and repaid in the manner
specified in Subsections (a) through (c) below. Any such Loan(s) converted to
a Prime Loan pursuant to said Section 1.7 B. shall be reallocated and repaid in
the manner specified in Subsections (a) through (c) of Section II. C. 1.,
above, on the last day of the relevant CD Interest Period or Eurodollar
Interest Period.
(a) Not later than 8:00 a.m., Hawaii Standard Time, on the second
Business Domestic Day or Eurodollar Business Day, as applicable, prior to the
last day of the relevant CD Interest Period or Eurodollar Interest Period, the
Agent shall advise each Bank of such Bank's Revised Proportional Share of such
outstanding Loan and the amount by which such Bank's Revised Proportional Share
exceeds or is less than such Bank's Former Proportional Share.
(b) To the extent that any Bank's Revised Proportional Share
exceeds such Bank's Former Proportional Share, such Bank shall, not later than
10:00 a.m., Hawaii Standard Time, on the last day of such CD Interest Period or
Eurodollar Interest Period, provide to the Agent at its office specified in
Section 12.4 of the Credit Agreement, immediately available funds in Dollars in
such amount together with any accrued but unpaid interest on such amount
determined in accordance the Credit Agreement.
(c) To the extent that any Bank's Former Proportional Share
exceeds such Bank's Revised Proportional Share, the Agent shall, not later than
12:00 noon, Hawaii Standard Time, on the last day of such CD Interest Period or
Eurodollar Interest Period, provide to such Bank immediately available funds in
Dollars in such amount together with any accrued but unpaid interest on such
amount determined in accordance the Credit Agreement.
D. MISCELLANEOUS.
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1. Confirmation of Warranties and Covenants; No Event of
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Default. All of the continuing warranties of the Borrower contained in the
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Credit Agreement, are hereby confirmed and reaffirmed by the Borrower as being
true, valid and correct as of the date of this Agreement. The Borrower
represents and warrants that no Event of Default exists as of the date of
this Agreement.
2. No Defenses. The Borrower acknowledges that it does not have
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any offsets, counterclaims, deductions, or defenses to payment or performance
of its duties and obligations under the Credit Agreement.
3. Full Force and Effect. The provisions of the Credit
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Agreement and of the Notes, as previously amended by the First Amendment, the
Second Amendment and the Third Amendment, are hereby amended to conform with
this Agreement, and in the event of any conflict between the provisions of this
Agreement and the provisions of the Credit Agreement, the Notes, the First
Amendment, the Second Amendment or the Third Amendment, the provisions of this
Agreement shall control; but in all other respects, the provisions of the
Credit Agreement and the Notes, as previously amended by the First Amendment,
the Second Amendment and the Third Amendment, shall continue in full force and
effect.
4. Rights of the Banks. This Agreement is made on the express
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condition that nothing contained herein shall in any way be construed as
affecting, impairing, or waiving any rights of the Banks under the Credit
Agreement.
5. Bind and Inure. This Agreement shall be binding upon and
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inure to the benefit of the Banks, the Borrower and their respective successors
and assigns.
6. Applicable Law; Severability. This Agreement shall be
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governed by and interpreted in accordance with the laws of the State of
California. If any provision of this Agreement is held to be invalid or
unenforceable, the validity or enforceability of the other provisions shall
remain unaffected.
7. Paragraph Headings. The headings of paragraphs in this
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Agreement are inserted only for convenience and shall in no way define,
describe, or limit the scope or intent of any provision of this Agreement.
8. Counterparts and Facsimile Signatures. The parties to this
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Agreement agree that this Agreement may be executed in counterparts, each of
which shall be deemed an original, and said counterparts shall together
constitute one and the same agreement, binding all of the parties hereto,
notwithstanding all of the parties are not signatory to the original or the
same counterparts. In making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart. For all
purposes, including, without limitation, recordation and delivery of this
Agreement, duplicate unexecuted and unacknowledged pages of the counterparts
may be discarded and the remaining pages assembled as one document. The
submission of a signature page transmitted by facsimile telecopy (or similar
electronic transmission facility) shall be fully binding and in full effect
for all purposes under this Agreement. In such event, original signature
pages shall be delivered within a reasonable time and substituted for the
facsimile signature pages in the counterpart copies upon receipt.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ALEXANDER & BALDWIN, INC. FIRST HAWAIIAN BANK
By /s/ Thomas A. Wellman By /s/ Lance A. Mizumoto
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Its Controller & Asst. Treas. Its Vice President
By /s/ John B. Kelley As a "Bank" and as "Agent"
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Its Vice President
BANK OF AMERICA, N.A.
"Borrower"
By /s/ Nancy Nuerenberg
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Its Senior Vice President
As a "Bank" and as "Co-Agent"
BANK OF HAWAII
By /s/ Dana-Ann Takushi
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Its Vice President
As a "Bank"
THE BANK OF NEW YORK
By /s/ Jennifer Ellerman
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Its Vice President
As a "Bank"
WELLS FARGO BANK, NATIONAL
ASSOCIATION
420 Montgomery MAC A0101-096
San Francisco, California 94104
Attention: Mr. Stephen J. DeMarti
Telephone: (415) 396-4832
Facsimile: (415) 421-1352
By /s/ Stephen J. DeMarti
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Its Vice President
As a "Bank"
AMERICAN SAVINGS BANK, F.S.B.
915 Fort Street Mall, 4th Floor
Honolulu, Hawaii 96813
Attention: Mr. Carl A. Morita
Telephone: (808) 539-7631
Facsimile: (808) 536-1169
By /s/ Carl Morita
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Its Vice President
As a "Bank"
SCHEDULE I
Bank Commitment
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First Hawaiian Bank $ 45,000,000
Bank of America, N.A. 40,000,000
Wells Fargo Bank, National Association 40,000,000
Bank of Hawaii 30,000,000
The Bank of New York 20,000,000
American Savings Bank, F.S.B. 10,000,000
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TOTAL: $185,000,000