SECOND AMENDMENT TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
----------------------------------------
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT (this "Amendment"), effective as of October 1, 2004 (the
"Effective Date"), at Honolulu, Hawaii, is by and between ALEXANDER & BALDWIN,
INC., a Hawaii corporation (the "Borrower"), the undersigned Banks (herein
called, individually, a "Bank" and, collectively, the "Banks"), and FIRST
HAWAIIAN BANK, as agent for the Banks (the "Agent").
PRELIMINARY STATEMENTS
----------------------
A. The Borrower, certain of the Banks and other institutions were
parties to that certain Revolving Credit and Term Loan Agreement dated as of
December 1, 1982. Such Revolving Credit and Term Loan Agreement has been amended
and restated on numerous occasions, the last of which occurring pursuant to that
certain Third Amended and Restated Revolving Credit and Term Loan Agreement
effective as of November 30, 2001, by and between the Borrower, the Banks and
the Agent (the "Credit Agreement").
B. The Credit Agreement was amended by that certain First Amendment to
Third Amended and Restated Revolving Credit and Term Loan Agreement effective as
of February 4, 2004, to amend the definition of "Consolidated Net Income" to
account for the adoption by the Borrower of certain accounting standards.
C. The Borrower has requested the Banks to extend the Termination Date
of each Bank's Commitment from November 30, 2004, to January 1, 2008, to amend
the Credit Agreement to increase the Total Commitment from $185,000,000.00, to
$200,000,000.00, and to amend certain other terms and conditions of the Credit
Agreement.
D. The Banks are willing to amend the Credit Agreement in accordance
with the terms and conditions of this Amendment.
E. All capitalized terms used herein, unless otherwise defined, are as
defined in the Credit Agreement.
AGREEMENT
---------
In consideration of the mutual covenants set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Extension of Termination Date. The Termination Date shall be January
-----------------------------
1, 2008, or the Date to which such date is extended from time to time as
provided in Section 1.1 B. of the Credit Agreement, or the Date, following the
occurrence of an Event of Default, on which the Agent, on behalf of the Banks,
exercises the remedies under Section 8.1(1) or 8.1(2).
2. Increase in Total Commitment. The Total Commitment is hereby
----------------------------
increased from $185,000,000.00, to TWO HUNDRED MILLION AND NO/100 DOLLARS
($200,000,000.00). Each Bank's Commitment is hereby amended to the amounts
designated in Schedule 1 attached hereto and made a part hereof.
3. Schedule I. Schedule I to the Credit Agreement is hereby deleted and
----------
replaced with Schedule I attached hereto and made a part hereof. In accordance
with the increase in the Total Commitment from $185,000,000.00 to
$200,000,000.00, the individual Commitments of each Bank are as shown in this
revised Schedule I.
4. Execution of Revolving Credit Notes. On the date hereof, and as a
-----------------------------------
condition to the effectiveness of this Amendment, (i) Borrower shall execute and
deliver to each Bank a Revolving Credit Note, dated the date hereof, in the
forms attached as Exhibit A hereto, as follows: (a) in the principal amount of
Fifty-three Million Five Hundred Thousand Dollars ($53,500,000.00) to First
Hawaiian Bank; (b) in the principal amount of Forty-eight Million Five Hundred
Thousand Dollars ($48,500,000.00) to Bank of America, N.A.; (c) in the principal
amount of Thirty Million Dollars ($30,000,000.00) to Wells Fargo Bank, National
Association; (d) in the principal amount of Thirty Million Dollars
($30,000,000.00) to Bank of Hawaii; (e) in the principal amount of Twenty
Million Dollars ($20,000,000.00) to The Bank of New York; (f) in the principal
amount of Eighteen Million Dollars ($18,000,000.00) to American Savings Bank,
F.S.B. Upon such execution and delivery, the existing Revolving Credit Notes,
evidencing the Borrower's obligation to pay each Bank's Commitment prior to this
Amendment, shall be replaced and cancelled.
5. Amendment to Interest Rates. The Interest Rates for certain Loans
---------------------------
are hereby amended as follows:
(a) Section 1.7 C.(ii) of the Credit Agreement is amended such
that the Interest Rate in respect of each Eurodollar Loan during its related
Eurodollar Interest Period shall be the Eurodollar Rate for such Eurodollar
Interest Period plus forty-seven and one-half one-hundredths of one percent
(0.475%); and
(b) Section 1.7 D.(ii) of the Credit Agreement is amended such
that the Interest Rate in respect of each Term Loan that is a Eurodollar Loan
during its related Eurodollar Interest Period shall be the Eurodollar Rate for
such Eurodollar Interest Period plus six-tenths of one percent (0.60%).
6. Amendment to Principal Payments Due Dates on Term Notes. Section 1.6
-------------------------------------------------------
of the Credit Agreement is hereby amended such that the quarterly principal
payments due under all Term Notes is hereby amended to be due on the first
Business Day of the immediately subsequent months of April, July, October and
January, provided, however, that the fourth such installment shall be in an
amount sufficient to repay in full the unpaid principal amount thereof. The
maturity date of any such Term Note shall be the date one (1) year subsequent to
the Termination Date. Except as amended hereby, all other terms and conditions
of Section 1.6 of the Credit Agreement shall remain in full force and effect.
Consistent with this Amendment, Exhibit B of the Agreement, the form
Term Note, shall be replaced it its entirety by the form Term Note attached
hereto as Exhibit B.
7. Minimum Amount of Each Letter of Credit. The first sentence of
---------------------------------------
Section 1.14 E. of the Credit Agreement is hereby amended so that each Letter of
Credit shall be for an amount which is at least Two Million Five Hundred
Thousand Dollars ($2,500,000.00). Except as amended hereby, all other terms and
conditions of Section 1.14(E) of the Credit Agreement shall remain in full force
and effect.
8. Letter of Credit Fee. Section 1.14 H. of the Credit Agreement is
--------------------
hereby amended such that each reference to "55 basis points (0.55%)" is replaced
with the term "47.5 basis points (0.475%)." Except as amended hereby, all other
terms and conditions of Section 1.14 H. of the Credit Agreement shall remain in
full force and effect.
9. Interest Rates Upon Interest Payment Default. Section 1.7 of the
--------------------------------------------
Credit Agreement is amended to add the following subsection G. to read as
follows:
G. Interest Rates Upon Interest Payment Default. If the
--------------------------------------------
Borrower defaults in the payment when due of any interest
amount due under any Loan, the Interest Rate on the principal
amount of such Loan shall be amended, from the date such
interest amount was due to the date of actual payment, for
each day from and including the date such amount is payable to
but excluding the date such amount is paid, at a rate equal to
the Prime Rate from time to time in effect, plus two percent
(2%). Imposition of this rate of interest shall be in addition
to any other remedies available to the Banks under Article
VIII hereunder. So long as the principal amount of any such
Loan is not accelerated by the Agent, upon payment of the
interest payment(s) then in default, the Interest Rate on such
Loan shall revert back to the applicable Interest Rate on such
Loan to be charged on such Loan in the absence of such
interest payment default.
10. Audited Financial Statements. Section 6.1 A.(iii) of the Credit
----------------------------
Agreement is hereby amended as follows: (a) the requirement that the Borrower
submit an audited consolidating balance sheet of the Borrower and its
Subsidiaries is hereby deleted, and (b) all opinions of the accountants
preparing such audited financial statements, whether by Deloitte & Touche, LLP
or other independent public accountants as may be approved by the Banks, shall
be "unqualified" as to any of the matters stated therein. Except as amended
hereby, all other terms and conditions of Section 6.1 A.(iii) of the Credit
Agreement shall continue in full force and effect.
11. Dividends; Redemptions. Section 7.8 B. of the Credit Agreement is
----------------------
hereby amended to delete the second paragraph of such section (which begins with
"On or after the date, ...) in its entirety.
12. Definitions. The following definitions in Article IX of the Credit
-----------
Agreement shall be amended as follows:
(a) The definition for "Contingent Liabilities" is hereby
----------------------
amended in its entirety as follows:
"Contingent Liabilities": shall mean, (i) Indebtedness of any
----------------------
Person (other than the Borrower or any of its Subsidiaries),
(1) that the Borrower or any of its Subsidiaries are
contingently or directly liable under any partnership or joint
venture agreement, or (2) that is assumed, endorsed,
guaranteed or co-signed, directly or indirectly, by the
Borrower or any of its Subsidiaries; and (ii) any contingent
liability of the Borrower or any of its Subsidiaries arising
from any litigation that, pursuant to FASB Statement No. 5 (or
any successor thereto), is required to be reported in the
notes to the Borrower's consolidated financial statements
referred to in Section 6.1A(iii) hereof.
(b) The definition for "Excluded Liabilities" is hereby
--------------------
deleted in its entirety.
13. Reallocation of Existing Loans.
------------------------------
(a) If on the date hereof there shall be any outstanding Prime
Loans, on the date hereof with respect to each such Loan, as conditions to the
effectiveness of this Agreement:
(i) 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 attached to the Credit Agreement (the "Former Proportional Share").
(ii) 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 the Credit Agreement, immediately available funds in Dollars in
such amount in accordance with the Credit Agreement.
(iii) 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 in accordance with the Credit
Agreement.
(b) If on the date hereof there shall be any outstanding
Eurodollar Loans, each such outstanding Eurodollar Loan shall remain in effect
until the expiration date(s) of the current related Eurodollar Interest
Period(s). 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 (i) through (iii) 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 (i) through (iii)
of Section 13(a) above, on the last day of the relevant Eurodollar Interest
Period.
(i) Not later than 8:00 a.m., Hawaii Standard Time,
on the second Domestic Business Day or Eurodollar Business Day, as applicable,
prior to the last day of the relevant 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.
(ii) 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
Eurodollar Interest Period, provide to the Agent at its office specified in the
Credit Agreement, immediately available funds in Dollars in such amount in
accordance the Credit Agreement.
(iii) 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
Eurodollar Interest Period, provide to such Bank immediately available funds in
Dollars in such amount in accordance the Credit Agreement.
14. Restructuring Fee. On the Effective Date or execution date of this
Amendment, whichever is earlier, the Borrower shall pay to the Agent the
Restructuring Fee in accordance with Section 1.3 B. of the Credit Agreement,
which fee shall be equal to 0.05% of $200,000,000.00, or $100,000.00.
15. Miscellaneous.
-------------
(a) Confirmation of Warranties and Covenants: No Event of
-----------------------------------------------------
Default. All of the continuing warranties of the Borrower contained in the
- -------
Credit Agreement, are hereby confirmed and reaffirmed by the Borrower as being
true, valid and correct as of the date of this Amendment. The Borrower further
represents and warrants that:
(i) The consolidated financial statements of the
Borrower as of and for the year ended December 31, 2003, as audited by
Deloitte & Touche, LLP, and the consolidated unaudited financial statements of
the Borrower as of June 30, 2004, which statements are duly certified by the
Chief Financial Officer of the Borrower, are complete, correct and present
fairly the financial position and results of operations as of or for the periods
indicated, all in accordance with GAAP applied on a consistent basis, except as
set forth in the notes thereto.
(ii) no Event of Default exists as of the date of
this Amendment.
(b) No Offsets or Defenses; Waiver. As of the date hereof, the
----------------------
Borrower has no claims, defenses or offsets against the Agent, the Banks or
against the Borrower's obligations under the Credit Agreement, as herein
amended, whether in connection with the negotiations for or closing of the
Credit Agreement, of this Amendment, or otherwise, and if any such claims,
defenses or offsets exist, they are hereby irrevocably waived and released.
(c) Full Force and Effect. The provisions of the Credit
---------------------
Agreement and of the Notes, as previously amended, are hereby amended to conform
with this Amendment but in all other respects the provisions of the Credit
Agreement and the Notes, as previously amended and as amended by this Amendment,
shall continue in full force and effect.
(d) Rights of the Banks. This Amendment is made on the express
-------------------
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.
(e) Bind and Inure. This Amendment shall be binding upon and
--------------
inure to the benefit of the Banks, the Borrower and their respective successors
and assigns, provided, that the Borrower may not transfer any rights or
obligations under this Amendment without the prior written consent of the Banks.
(f) Applicable Law; Severability. This Amendment shall be
----------------------------
governed by and interpreted in accordance with the laws of the State of Hawaii.
If any provision of this Amendment is held to be invalid or unenforceable, the
validity or enforceability of the other provisions shall remain unaffected.
(g) Paragraph Headings. The headings of paragraphs in this
------------------
Amendment are inserted only for convenience and shall in no way define,
describe, or limit the scope or intent of any provision of this Amendment.
(h) Counterparts and Facsimile Signatures. The parties to this
-------------------------------------
Amendment agree that this Amendment may be executed in counterparts, each of
which shall be deemed an original, and said counterparts shall together
constitute one and the same agreement, binding all of the parties hereto,
notwithstanding all of the parties are not signatory to the original or the same
counterparts. In making proof of this Amendment, it shall not be necessary to
produce or account for more than one such counterpart. For all purposes,
including, without limitation, recordation and delivery of this Amendment,
duplicate unexecuted and unacknowledged pages of the counterparts may be
discarded and the remaining pages assembled as one document. The submission of a
signature-page transmitted by facsimile or telecopy (or similar electronic
transmission facility) shall be fully binding and in full effect for all
purposes under this Amendment. In such event, original signature pages shall be
delivered within a reasonable time and substituted for the facsimile signature
pages in the counterpart copies upon receipt.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
ALEXANDER & BALDWIN, INC.
By /s/ Christopher J. Benjamin
---------------------------------------
CHRISTOPHER J. BENJAMIN
Its Vice President and
Chief Financial Officer
By /s/ Thomas A. Wellman
---------------------------------------
THOMAS A. WELLMAN
Its Vice President, Controller and
Treasurer
"Borrower"
FIRST HAWAIIAN BANK,
as a Bank and as Agent
Corporate Hawaii Division
999 Bishop Street, 11th Floor
Honolulu, Hawaii 96813
Att'n: Mr. Alan Arizumi
Vice President
Telephone: (808) 525-6203
Facsimile: (808) 525-6200
By /s/ Alan H. Arizumi
---------------------------------------
ALAN H. ARIZUMI
Its Vice President
BANK OF AMERICA, N.A.
WA1-501-35-01
800 Fifth Avenue, 35th Floor
Seattle, Washington 98104
Att'n: Mr. Mark N. Crawford
Senior Vice President
Telephone: (206) 358-8945
Facsimile: (206) 585-1794
By /s/ Mark N. Crawford
---------------------------------------
Its Senior Vice President
BANK OF HAWAII
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Att'n: Mr. James Karnowski
Telephone: (808) 537-8689
Facsimile: (808) 537-8301
By /s/ James Karnowski
---------------------------------------
Its Vice President
THE BANK OF NEW YORK
10990 Wilshire Boulevard
Suite 1125
Los Angeles, California 90024
Att'n: Ms. Jennifer Ellerman
Vice President
Telephone: (310) 996-8677
Facsimile: (310) 996-8667
By /s/ Jennifer Ellerman
---------------------------------------
Its Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION
MAC A0112-101
550 California Street, 10th Floor
San Francisco, California 94104
Attn: Mr. Jeff Bailard
Vice President
Telephone: (415) 396-1648
Facsimile: (415) 989-4319
By /s/ Jeff Bailard
---------------------------------------
Its Vice President
AMERICAN SAVINGS BANK, F. S. B.
P. O. Box 2300
Honolulu, Hawaii 96804-2300
Attn: Mr. Carl A. Morita
Telephone: (808) 539-7631
Facsimile: (808) 532-7370
By /s/ Carl A. Morita
---------------------------------------
Its Vice President
"Banks"
SCHEDULE I
----------
Commitment
First Hawaiian Bank $ 53,500,000
Bank of America, N.A. 48,500,000
Wells Fargo Bank, National Association 30,000,000
Bank of Hawaii 30,000,000
The Bank of New York 20,000,000
American Savings Bank, F. S. B. 18,000,000
------------
$200,000,000
EXHIBIT A
---------
REVOLVING CREDIT NOTE
$__________________ Honolulu, Hawaii
___________________, 2004
ALEXANDER & BALDWIN, INC., a Hawaii corporation (hereafter
referred to as the "Borrower"), FOR VALUE RECEIVED, hereby promises to pay to
the order of _____________________________________________________________(the
"Payee") at the offices of First Hawaiian Bank, a Hawaii corporation, located
at 999 Bishop Street, Honolulu, Hawaii 96813, the principal sum of
_______________________________________________ AND NO/100 DOLLARS
($_____________), on the Termination Date (as defined in the Agreement
referred to below) in lawful money of the United States of America and in
immediately available funds.
The Borrower promises also to pay interest on the unpaid
principal amount thereof in like money and funds at said office from the date
hereof until paid at the rates per annum which will be determined in accordance
with the provisions of Article I and Article II of the Third Amended and
Restated Revolving Credit and Term Loan Agreement (the "Agreement") effective as
of November 30, 2001, among the Borrower, the Payee and the other banks party
thereto, as the same may be amended from time to time, said interest to be
payable at the times provided for in the Agreement.
This Note is one of the Notes referred to in the Agreement and
is entitled to the benefits thereof. This Note is subject to prepayment, in
whole or in part, as specified in the Agreement. In case an Event of Default, as
defined in the Agreement, shall occur and shall be continuing, the principal of
and accrued interest on this Note may become due and payable in the manner and
with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
This Note shall be governed by and construed in accordance
with the laws of the State of Hawaii.
ALEXANDER & BALDWIN, INC.
By
---------------------------------------
Its
----------------------------------
By
---------------------------------------
Its
----------------------------------
LOAN AND REPAYMENT SCHEDULE
REVOLVING CREDIT NOTE
---------------------
- -------------------------------------------------------------------------------
(Use this section when evidencing a Eurodollar Loan)
Eurodollar Loans
----------------
- -------------------------------------------------------------------------------
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Use this section when evidencing Prime Rate Loan)
Prime Rate Loans
----------------
- -------------------------------------------------------------------------------
Amount and
date of
Principal
Repayment Amount and
(including date of
When Maturity amounts Interest Notation
Rate Made Term Amount Date converted) Payment Made By
- -------------------------------------------------------------------------------
EXHIBIT B
---------
TERM NOTE
$___________________ Honolulu, Hawaii
January 1, ________
ALEXANDER & BALDWIN, INC., a Hawaii corporation (hereafter
referred to as the "Borrower"), for value received, hereby promises to pay to
the order of _____________________________ (the "Payee") at the offices of
FIRST HAWAIIAN BANK, a Hawaii corporation, located at 999 Bishop Street,
Honolulu, Hawaii, 96813, the principal sum of _______________________________
Dollars ($____________), in lawful money of the United States of America and in
immediately available funds, in four consecutive substantially equal quarterly
installments of $_______________, which installments shall be payable on the
first Business Day of the immediately subsequent months of April, July,
October and January, commencing April ____, ______; provided, however, that the
last such installment due on January ____, _______, shall be in an amount
sufficient to repay in full the unpaid principal amount; and to pay interest
from the date hereof on said principal sum, or the unpaid balance thereof, in
like money and funds, at said office, at the rates per annum which shall be
determined in accordance with the provisions of Articles I and II of the
Agreement referred to below, said interest to be payable at the times provided
for in the Agreement. All unpaid principal, accrued yet unpaid interest,
and all other fees and charges due under this Note shall be due and payable on
January _____, _______.
This Note is one of the Term Notes referred to in the Third
Amended and Restated Revolving Credit and Term Loan Agreement effective as of
November 30, 2001, among the Borrower, the Payee, and the other banks party
thereto, as the same may be amended from time to time (the "Agreement"), and is
entitled to all the benefits provided therein. Reference is made to said
Agreement for the rights and obligations of the Borrower, the Payee (as one of
the "Banks" defined therein), and First Hawaiian Bank, as Agent, with regard to
this Note.
This Note is subject to prepayment, in whole or in part, as
specified in the Agreement. In case an Event of Default, as defined in the
Agreement, shall occur and shall be continuing, the principal of and accrued
interest on this Note may become due and payable in the manner and with the
effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
This Note shall be governed by and construed in accordance
with the laws of the State of Hawaii.
ALEXANDER & BALDWIN, INC.
By _____________________________________
Its _______________________________
By _____________________________________
Its _______________________________