LOAN MODIFICATION AGREEMENT
(December 2000)
THIS AGREEMENT effective as of December 11, 2000, 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 having purchased the interests
of BOA under the Original Loan Agreement and the other
Loan Documents referred to therein (the "BOA Purchase"),
and BOH having purchased a portion of the interest of
FHB under the Original Loan Agreement, as amended by the
First Restatement and by the Second Restatement (the
Original Loan Agreement as the same has been and may
hereafter be amended, the "Loan Agreement"), and under
the other Loan Documents referred to in the Loan
Agreement, the respective "Individual Loan Commitment
Percentage" of each Lender is now as follows:
(1) BOH's Individual Loan Commitment Percentage is
equal to 53.667% with respect to the Original Facility
and 50% with respect to the Village Course Facility;
(2) FHB's Individual Loan Commitment Percentage is
equal to 33.333% with respect to the Original Facility and
33.333% with respect to the Village Course Facility; and
(3) CPB's Individual Loan Commitment Percentage is
equal to 13.000% with respect to the Original Facility
and 16.667% with respect to the Village Course Facility;
WHEREAS, the Aggregate Loan Commitment with respect
to the Original Facility having been reduced to
$15,000,000, the respective Individual Loan Commitments
of the Lenders are as follows:
(1) BOH's Individual Loan Commitment is equal to
$8,050,000 with respect to the Original Loan Facility,
subject to further permanent reduction from time to time
in accordance with the terms of the Loan Agreement, and
$7,500,000 with respect to the Village Course Facility;
(2) FHB's Individual Loan Commitment is equal to
$5,000,000 subject to further permanent reduction from
time to time in accordance with the terms of the Loan
Agreement, and $5,000,000 with respect to the Village
Course Facility; and
(3) 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 the Loan
Agreement, and $2,500,000 with respect to the Village
Course Facility;
WHEREAS, the parties hereto entered into that
certain 1999 Loan Modification Agreement dated as of
December 30, 1999, and that certain 2000 Loan
Modification Agreement dated June 30, 2000;
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;
WHEREAS, for their mutual convenience, the parties wish
to restate all amendments effected by said 1999 Loan
Modification Agreement or by said 2000 Loan Modification
Agreement and not further amended or otherwise superceded by
a subsequent amendment or modification to the Loan
Documents; 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) Expiry Date - Revolving Loans. The
Expiry Date is extended from December 31, 2001, to
December 31, 2002.
(b) Maturity Date - Term Loans. The Maturity
Date is extended from December 31, 2004, to December 31,
2005.
(c) Village Course Facility Maturity Date.
The Village Course Facility Maturity Date is extended
from December 11, 2001, to March 31, 2002.
(d) Interest Rate - Revolving Loans.
Outstanding balances of principal of the Revolving Loans
during the Revolving Loan Period shall bear interest at
either of the following interest rate options that
Borrower may select in accordance with the terms of the
Loan Agreement (1) a floating rate equal to the Base
Rate in effect from time to time or (2) LIBOR, plus:
(i) if Borrower's Recourse Debt to Net
Worth Ratio is less than or equal to 0.20, one and one-
half percentage points (1.50%);
(ii) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.20 but not more than 0.40,
one and three-fourths percentage points (1.75%);
(iii)if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.40 but not more than 0.60,
two percentage points (2.00%);
(iv) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.60 but not more than 0.80,
two and one-fourth percentage points (2.25%); and
(v) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.80, two and one-half
percentage points (2.50%).
(e) Interest Rate - Term Loans. In the event
that the Term Loans shall be made, then during the
period (the "Term Loan Period") commencing on the Expiry
Date, to and including the date that the Term Loans are
paid in full, at the option of the Borrower initially
either (i) a floating rate per annum equal to the Base
Rate in effect from time to time, or (ii) LIBOR, plus:
(i) if Borrower's Recourse Debt to Net
Worth Ratio is less than or equal to 0.20, one and three-
fourths percentage points (1.75%);
(ii) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.20 but not more than 0.40,
two percentage points (2.00%);
(iii)if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.40 but not more than 0.60,
two and one-fourth percentage points (2.25%);
(iv) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.60 but not more than 0.80,
two and one-half percentage points (2.50%); and
(v) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.80, two and three-fourths
percentage points (2.75%).
(f) Interest Rate - Village Course Facility
Advances. The Borrower agrees to pay interest on the
outstanding principal balance of the Advances pursuant
to the following interest rate options that the Borrower
may select in accordance with the provisions of the Loan
Agreement: (1) a floating rate equal to the Base Rate in
effect from time to time; or (2) LIBOR plus:
(i) if Borrower's Recourse Debt to Net
Worth Ratio is less than or equal to 0.20, one and one-
half percentage points (1.50%);
(ii) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.20 but not more than 0.40,
one and three-fourths percentage points (1.75%);
(iii)if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.40 but not more than 0.60,
two percentage points (2.00%);
(iv) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.60 but not more than 0.80,
two and one-fourth percentage points (2.25%); and
(v) if Borrower's Recourse Debt to Net
Worth Ratio is greater than 0.80, two and one-half
percentage points (2.50%).
(g) Recourse Debt to Net Worth Ratio.
"Recourse Debt to Net Worth Ratio" or "Recourse Debt/Net
Worth Ratio" shall mean the quotient obtained by
dividing (i) Recourse Debt by (ii) Net Worth. For the
purpose of determining the interest rate applicable to
the Loans, such ratio shall be based of the most recent
financial reports referred to in Section 5.1(a)(1) of
the Loan Agreement and any KCA debt which is nonrecourse
to the Borrower shall be disregarded.
(h) Reductions of Commitment - Original
Facility. Section 2.6(a) of the Loan Agreement is
amended to read as follows:
(a) Mandatory Reduction. Except as
otherwise provided by Section 2.8(c) hereof: 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 under the Original Facility;
provided, however, that such mandatory
payments of principal shall not permanently
reduce the Aggregate Loan Commitment with
respect to the Original Facility.
(i) Payments of Principal - Village Course
Facility. Section 2.8(c) of the Loan Agreement is
amended to read as follows:
(c) Village Course Facility.
(1) On or before December 31,
2000, Borrower shall pay the amount, if
any, by which the outstanding principal
balance of the Village Course Facility
exceeds $12,000,000.00 and, on or before
March 31, 2001, Borrower shall pay the
amount, if any, by which the outstanding
principal balance of the Village Course
Facility exceeds $8,000,000.
(2) Until such time as the unpaid
principal balance of the Village Course
Facility is reduced to $8,000,000.00 or
less: within ten(10) days after the
close of the sale of any lot in the real
estate development project known as
"Pineapple Hill Estates", built or
intended to be built on land identified
as Tax Map Key (2)4-2-04:24, Borrower
will make a payment of principal in the
amount of $400,000.00 with respect to the
Village Course Facility from the proceeds
of each such sale.
(3) All principal and accrued
interest then outstanding with respect to
the Village Course Facility shall be due
and payable in full on or before the
Village Course Facility Maturity Date.
(j) Net Worth. Section 5.1(e)(3) of the Loan
Agreement is amended to read as follows:
(3) A Net Worth of not less than
$60,100,000.00, plus 50% of the cumulative
net profits after December 31, 1998 (but not
the net losses) of Borrower.
(k) Capital Expenditures. Section 5.2(d) of
the Loan Agreement is amended to read as follows:
(d) Neither the Borrower nor any
Subsidiary will make any Capital Expenditure
that is not approved in writing by Lenders
that causes Borrower to exceed (on an
aggregated basis) the following Capital
Expenditure limits: $10,800,000 for fiscal
year 1998; $11,500,000 for fiscal year 1999;
$15,250,000 for fiscal year 2000; $14,500,000
for fiscal year 2001; and $12,000,000 for each
fiscal year thereafter. Capital Expenditures
for work at the Village Course at Kapalua
(described in Section 5.1(n)) shall not be
counted towards such Capital Expenditure
limits.
(l) Current Ratio. For the purpose of
determining the Current Ratio for the second, third and
fourth quarters of fiscal year 2000, Consolidated
Current Liabilities shall not include deferred revenue
related to lot sales in the real estate development
projects known as "Plantation Estates" and "Pineapple
Hill Estates", built or intended to be built on land
identified as Tax Map Key (2)4-2-05:1 through 14,
inclusive, 44 and 45 and Tax Map Key (2)4-2-04:24,
respectively. For the purpose of determining the
Current Ratio for all quarters of fiscal year 2001,
Consolidated Current Liabilities shall not include
deferred revenue related to lot sales in the real estate
development project known as "Pineapple Hill Estates",
built or intended to be built on land identified as Tax
Map Key (2)4-2-04:24.
(m) Consolidated Current Assets and
Consolidated Current Liabilities. Section 1.14 of the
Loan Agreement is amended to read as follows:
1.14 "Consolidated Current Assets" and
"Consolidated Current Liabilities" mean, at
any time, all assets or liabilities,
respectively, that, in accordance with
generally accepted accounting principles
consistently 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
current portion of long term debt related to
the Village Course Facility, at the time of
determination, minus the lesser of (1) the
available portion of the Aggregate Loan
Commitment with respect to the Original
Facility, at the time of determination, or (2)
$8,000,000.
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 a non-refundable
fee with respect to the Original Facility in the amount
of $10,000 as follows: to BOH 53.667% ($5,366.67); to
FHB 33.33% ($3,333.33); and to CPB 13.00%($1,300.00).
(b) Borrower shall pay to the Agent, on
demand, for distribution to the Lenders the following
non-refundable fee with respect to the Village Course
Facility in the amount of $2,500 as follows: to BOH
50.00% ($1,250.00); to FHB 33.33% ($833.33); and to CPB
16.667% ($416.67).
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/PAUL J. MEYER By: /S/DEREK CHANG
Paul J. Meyer Derek Chang
Its Executive Vice President/ Its Asst. Vice President
Finance
FIRST HAWAIIAN BANK
By: /S/GARY L. GIFFORD
Gary L. Gifford By: /S/LANCE A. MIZUMOTO
Its President Lance A. Mizumoto
Its Vice President
KAPALUA LAND COMPANY, LTD.
CENTRAL PACIFIC BANK
By: /S/PAUL J. MEYER
Paul J. Meyer By: /S/ALAN TAMANAHA
Its Executive Vice President/ Alan Tamanaha
Finance Its Vice President
By: /S/DON YOUNG
Don Young
Its President