Exhibit 4.b.(viii)
SEVENTH AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This Seventh Amendment (the "Seventh Amendment") dated as of
November 30, 1994 (the "Effective Date"), by and among ALEXANDER & BALDWIN,
INC., a Hawaii corporation (the "Parent"), A&B-HAWAII, INC., a Hawaii
corporation ("A&B-Hawaii"), the undersigned banks (individually a "Bank" and
collectively the "Banks"), and FIRST HAWAIIAN BANK, a Bank and as Agent for the
Banks, amends the Amended and Restated Revolving Credit and Term Loan Agreement
(as previously amended, the "Agreement") effective as of April 1, 1989, among
the Parent, A&B-Hawaii, the Agent, and the banks that are parties thereto.
RECITALS
A. The Parent, A&B-Hawaii, the Banks and the Agent have entered into
the Agreement.
B. The parties hereto wish to amend the Agreement to extend the
Termination Date, to reduce the Commitment Fee, to amend the Interest Rate, to
amend certain financial covenants and to make certain other modifications, all
as set forth in greater detail below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Definitions. All terms defined in the Agreement shall have such
defined meanings when used herein, unless otherwise defined herein.
2. Amendment. The Agreement shall be amended as follows:
a. Section 9.1 is hereby amended to include the following
defined terms and the respective meanings of such defined terms:
"Consolidated Cumulative Net Income": shall mean, as to any
Borrower, the aggregate Consolidated Net Income of that Borrower for the
fiscal period(s) in question.
"Consolidated Interest Expense": shall mean the sum of all
amounts that would, in accordance with GAAP, be deducted in computing
Consolidated Net Income for such period on account of interest, including
without limitation, imputed interest in respect of capitalized lease
obligations, fees in respect of letters of credit and bankers' acceptance
financing and amortization of debt discount and expense.
"Consolidated Net Income": shall mean, as to any Borrower, such
Borrower's and its Subsidiaries' gross revenues, less all operating and
non-operating expenses of such Borrower and its Subsidiaries, including all
charges of a proper character (including current and deferred taxes on
income, provision for taxes on unremitted foreign earnings which are
included in gross revenues, and current additions to reserves), but not
including in gross revenues any (i) gains (net of expenses and taxes
applicable thereto) in excess of losses resulting from the sale,
conversion, exchange or other disposition of capital assets (i.e., assets
other than current assets) other than real property sold for cash, cash
equivalents or other property or tangible assets by any Subsidiary engaged
in property development activities in the ordinary course of its property
development activities, (ii) gains resulting from the write-up of assets,
(iii) equity of such Borrower or its Subsidiaries in the unremitted
earnings of any company (other than of such Borrower or its Subsidiaries),
(iv) any goodwill, or (v) net income, gain or loss during such period from
any change in accounting, from any discontinued operations or the
disposition thereof, from any extraordinary events or from any prior period
adjustments, all determined in accordance with GAAP.
"Consolidated Net Income Before Taxes": shall mean Consolidated
Net Income plus the sum of all deferred and current federal, state, local
and foreign taxes that are deducted in accordance with GAAP in computing
Consolidated Net Income for such period.
"Consolidated Tangible Net Worth": shall mean, as to any
Borrower, the consolidated net worth of such Borrower, and its
Subsidiaries, determined in accordance with GAAP, less all Intangibles.
"Consolidated Total Assets": shall mean, as to any Borrower, that
Borrower's consolidated total assets, determined in accordance with GAAP.
"GAAP": shall mean generally accepted accounting principles
applied on a basis consistent with those followed in the preparation of the
financial statements referred to in Section 6.1 unless otherwise indicated.
"Indebtedness": shall mean, as to any Borrower, all items of
indebtedness which, in accordance with GAAP, would be included in
determining liabilities as shown on the liability side of a balance sheet
of such Borrower as of the date as of which indebtedness is to be
determined and shall also include all indebtedness and liabilities of
others (other than the Borrowers or any of their respective Subsidiaries)
assumed or guaranteed by such Borrower or in respect of which such Borrower
is secondarily or contingently liable (other than by endorsement of
instruments in the course of collection) whether by reason of any agreement
to acquire such indebtedness or to supply or advance sums or otherwise,
excluding, however, Contingent Liabilities and Excluded Liabilities.
"Intangibles": shall mean any intellectual properties, goodwill
(including any amounts, however designated, representing the cost of
acquisition of business and investments in excess of underlying tangible
assets), unamortized debt discount and expense, deferred research and
development costs, any write-up of asset value after December 15, 1989 and
other assets treated as intangible assets under GAAP.
"Interest Coverage Ratio": for any fiscal quarter shall mean, as
to any Borrower, the sum of (i) such Borrower's Consolidated Net Income
Before Taxes for the four immediately preceding fiscal quarters, and
(ii) such Borrower's Consolidated Interest Expense for the four immediately
preceding fiscal quarters, divided by such Borrower's Consolidated Interest
Expense for the four immediately preceding fiscal quarters.
"Restricted Payments": shall have the meaning specified in
Section 7.8A.
b. In the definition of "Termination Date" set forth in
Section 9.1, the date "November 30, 1995" shall be deleted, and the date
"November 30, 1996" shall be inserted in its place.
c. Section 1.3 is hereby amended in its entirety to state as
follows:
Section 1.3 Fee for Revolving Credit Commitment. The Borrowers
agree to pay the Agent, for distribution to the Banks ratably according to
their respective Commitments, a single commitment fee, computed on the
basis of the actual number of days elapsed and a 365-day year, payable from
time to time at the rate of three-twentieths of one percent (3/20%) per
annum on the average daily unused portion of the Total Commitment. The
commitment fee shall be determined at the aforesaid rate from the Effective
Date, to and including the Termination Date. Except as otherwise provided
in Section 1.4 below, the commitment fee will be payable quarterly in
arrears not later than the fifteenth day of each January, April, July and
October, for the quarter ending on the last day of the previous month
commencing January 15, 1995.
d. Section 1.7C is hereby amended in its entirety to read as
follows:
C. Interest Rates on Revolving Loans. Except as otherwise
provided in Section 1.7F:
(i) The Interest Rate in respect of each Prime Loan shall
be the Prime Rate;
(ii) For each Revolving Loan that is a Eurodollar Loan, 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 three-eighths on one percent (3/8%);
(iii) For each Revolving Loan that is a CD Loan, the Interest
Rate in respect of each CD Loan during its related CD Interest Period shall
be the CD Rate for such CD Interest Period plus one-half of one percent
(1/2%).
e. Section 1.7D is hereby amended in its entirety to read as
follows:
D. Interest Rates on Term Loans. Except as otherwise provided
in Section 1.7F:
(i) The Interest Rate in respect of each Term Loan that is
a Prime Loan shall be the Prime Rate plus, (x) from the Termination Date to
and including the last day before the second anniversary of the Termination
Date, one-quarter of one percent (1/4%), and (y) from the second
anniversary of the Termination Date to and including the Final Maturity
Date, three-eighths of one percent (3/8%);
(ii) 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, (x) from the
Termination Date to and including the last day before the second
anniversary of the Termination Date, five-eighths of one percent (5/8%),
and (y) from the second anniversary of the Termination Date to and
including the Final Maturity Date, three-fourths of one percent (3/4%); and
(iii) The Interest Rate in respect of each Term Loan that is
a CD Loan during its related CD Interest Period shall be the CD Rate for
such CD Interest Period plus, (x) from the Termination Date to and
including the last day before the second anniversary of the Termination
Date, three-fourths of one percent (3/4%), and (y) from the second
anniversary of the Termination Date to and including the Final Maturity
Date, seven-eighths of one percent (7/8%).
f. Section 7.1A(i) is hereby amended in its entirety to state
as follows:
A. (i) Commencing with the fiscal year beginning January 1,
1993, permit the Parent's Consolidated Tangible Net Worth to be less than
the sum of (x) $475,000,000 plus (y) 35% of the Parent's Consolidated
Cumulative Net Income after December 31, 1992 (such required minimum net
worth not to be reduced by any consolidated net loss during any such
period) or permit the Consolidated Tangible Net Worth of A&B-Hawaii during
any fiscal year to be less than $150,000,000;
g. Section 7.1 is hereby amended to include a new subsection E
to state as follows:
D. Permit the Parent's Interest Coverage Ratio for any fiscal
quarter (measured at the end of such fiscal quarter) to be less than 2.0 to
1.0.
h. Section 7.8A is hereby amended in its entirety to state as
follows:
A. Declare or pay any dividend or other distribution on any
class of its capital stock or other equity interests, redeem or repurchase
any such interests or make any other distribution on account of any such
interests (all of the foregoing being "Restricted Payments"), except that
either Borrower may make Restricted Payments in any amount so long as
(i) no Event of Default or Unmatured Event of Default shall then be
existing or be existing after giving effect to any such Restricted Payment,
and (ii) any such Restricted Payment will not violate any applicable law or
regulation, including Regulation U of the Board of Governors of the Federal
Reserve System.
3. Miscellaneous.
a. Except as otherwise expressly amended by this Seventh
Amendment, the Agreement shall continue to be in full force and effect in
accordance with its terms. All references to the Agreement shall mean the
Agreement as amended by this Seventh Amendment.
b. This Seventh Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
c. This Seventh Amendment shall be governed by, and construed
and interpreted in accordance with, the laws of the State of California.
d. Each party hereby represents to the others that each of the
individuals executing this Seventh Amendment on its behalf is a duly appointed
signatory of the respective party to this Seventh Amendment and that each is
duly authorized to execute this Seventh Amendment by or on behalf of the
respective party for whom he or she is signing and duly authorized to take any
and all action required by the terms of this Seventh Amendment.
e. The Borrowers represent and warrant that on and as of the
Effective Date of this Seventh Amendment, the material representations and
warranties contained in the Agreement or made in any writing delivered or
furnished pursuant to this Seventh Amendment are true and correct, and no Event
of Default or Unmatured Event of Default shall have occurred and be continuing.
f. All of the terms of this Seventh Amendment shall be
effective as of the Effective Date.
IN WITNESS WHEREOF, the parties hereto have executed this Seventh
Amendment as of the Effective Date.
ALEXANDER & BALDWIN, INC. A&B-HAWAII, INC.
By /s/ G. S. Holaday By /s/ G. S. Holaday
Its Vice President Its Senior Vice President
By /s/ Thomas A. Wellman By /s/ Thomas A. Wellman
Its Asst. Controller Its Controller
FIRST HAWAIIAN BANK, BANK OF AMERICA NATIONAL
as a Bank and as Agent TRUST AND SAVINGS ASSOCIATION,
individually and as Co-Agent
By /s/ Adolph F. Chang By /s/ Richard E. Bryson
Its Vice President Its Vice President
BANK OF HAWAII THE BANK OF CALIFORNIA, N.A.
By /s/ Marcy Fleming By /s/ Wanda Headrick
Its Vice President Its Vice President
CREDIT LYONNAIS LOS ANGELES CREDIT LYONNAIS CAYMAN ISLAND
BRANCH BRANCH
By /s/ Thierry Vincent By /s/ Thierry Vincent
Its Vice President/Manager Its Authorized Signatory