SECOND LOAN MODIFICATION AGREEMENT
(March 2003)
THIS SECOND LOAN MODIFICATION AGREEMENT is dated as of
March 21, 2003, by and among MAUI LAND & PINEAPPLE COMPANY, INC.,
a Hawaii corporation, hereinafter called the "Borrower", and BANK
OF HAWAII, a Hawaii banking corporation ("BOH"), FIRST HAWAIIAN
BANK, a Hawaii banking corporation ("FHB"), CENTRAL PACIFIC BANK,
a Hawaii banking corporation ("CPB"), and AMERICAN AGCREDIT, PCA,
a corporation or association organized and existing under the
laws of the United States of America ("PCA") (BOH, FHB, CPB and
PCA are each sometimes called a "Lender" and are 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 (in such capacity, the "Agent"), and
KAPALUA LAND COMPANY, LTD., a Hawaii corporation (the
"Accommodation Party").
Recitals:
A. The Lenders (i) have made available to the
Borrower Revolving Loans in the aggregate principal amount of
up to $25,000,000 at any one time outstanding, and (ii) shall
make available to the Borrower Term Loans in an amount up to the
aggregate principal amount of the Revolving Loans outstanding
upon expiration of the Revolving Loan Period, but not to exceed
$15,000,000, all as more particularly described in that certain
Amended and Third Restated Revolving Credit and Term Loan
Agreement dated December 31, 2001, made by and among the
Borrower, Lenders and Agent, as amended by that certain Loan
Modification Agreement (the "First Modification") effective as
of December 31, 2002 (as amended, the "Loan Agreement").
B. Capitalized terms used, but not defined in this
Agreement, shall have the meanings given them in the Loan
Agreement.
C. The performance of the Borrower under the Loan
Documents is secured by the following (as amended and confirmed,
collectively, the "Mortgages") made in favor of the Lenders:
(1) Mortgage and Security Agreement dated
March 1, 1993, made by the Borrower, as Mortgagor, recorded in
the Bureau of Conveyances of the State of Hawaii (the "Bureau")
as Document No. 93-036896;
(2) Mortgage and Security Agreement dated
March 1, 1993, made by the Borrower, as Mortgagor, recorded in
the Bureau as Document No. 93-036898; and
(3) Additional Security Mortgage and Security
Agreement dated March 1, 1993, made by the Accommodation Party,
recorded in the Bureau as Document No. 93-036900.
D. The Borrower has requested certain modifications
of the Loan Documents and the Lenders are willing to agree to such
modifications under the terms and conditions of this Agreement.
Agreements:
NOW, THEREFORE, in consideration of the premises, the
mutual covenants set forth herein and other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
1. Amendments to the Loan Agreement: The Loan
Agreement is amended as follows:
(a) Effective as of the date of this Agreement,
Section 1.6(a)(1) relating to the Base Rate of interest is amended
to read in its entirety as follows:
(1) The Base Rate in effect from time to
time plus 0.25%; or
(b) Effective as of the date of this Agreement,
in Section 1.6, the grid setting forth the Applicable Margin
based on the Borrower's Recourse Debt to Net Worth ratio is
amended in its entirety to read as follows:
Recourse Debt/ Applicable Margin Applicable Margin
Net Worth for for
Revolving Loans Term Loans
Less than or equal 1.75 percentage 2.00 percentage
to 0.20 points points
Greater than 0.20 2.00 percentage 2.25 percentage
but less than or points points
equal to 0.40
Greater than 0.40 2.25 percentage 2.50 percentage
but less than or points points
equal to 0.60
Greater than 0.60 2.50 percentage 2.75 percentage
but less than or points points
equal to 0.75
Greater than 0.75 2.75 percentage 3.00 percentage
but less than or points points
equal to 0.90
Greater than 0.90 3.00 percentage 3.25 percentage
points points
(c) Effective as of December 31, 2002,
Section 5.10(a) is amended to read in its entirety as follows:
(a) Debt Service Coverage Ratio of (i) not
less than 1.10, to be measured at December 31,
2003 for the twelve months preceding such date and
(ii) not less than 1.20 thereafter, to be measured
quarterly. There shall be no Debt Service
Coverage Ratio requirement for the period from
December 31, 2002 through September 30, 2003.
(d) Effective as of December 31, 2002,
Section 5.10(c) is amended to read in its entirety as follows:
(c) A Net Worth of not less than
$60,000,000.00, plus 50% of cumulative Net Profits
(but not net losses) after December 31, 2002;
provided, however, that in the event of the
Borrower's sale of its investment in Kaahumanu
Center Associates ("KCA") or in KCA's sale of the
Kaahumanu Center, Net Worth shall be adjusted
upward by the amount of the net after tax gain to
the Borrower from the sale, so that such sale will
have no impact on the difference between the then
current Net Worth requirement and the increase in
the actual Net Worth resulting from such sale.
(e) Effective as of December 31, 2002, the
Borrower's negative covenant in Section 6.5 is amended to read in
its entirety as follows:
6.5 Capital Expenditures. Make any Capital
Expenditures in excess of $10,700,000 in fiscal
year 2003 and $12,000,000 in any fiscal year
thereafter.
(f) Notwithstanding anything to the contrary
contained in the First Modification, in the event of the sale
of the Kaahumanu Center, the Aggregate Loan Commitment shall be
reduced by an amount equal to 50% of the net cash proceeds
received by the Borrower from such sale, which are in excess of
$3,500,000; provided, however, that the Aggregate Loan Commitment
shall not be less than $20,000,000.
2. Amendment Fee and Costs: In consideration of, and
as a condition to, the amendments herein contained, the Borrower
shall pay the Agent, on demand, for distribution to the Lenders
on a pro rata basis, a $37,500 amendment fee. The Borrower shall
also promptly reimburse the Agent for all costs and expenses,
including reasonable attorney's fees, incurred by the Agent in
connection with this transaction.
3. Modification; Conflict: This Agreement is a
modification only and not a novation. In all other respects, the
terms and conditions of the Loan Documents, as hereby modified,
are hereby ratified and confirmed and shall remain in full force
and effect. If there is any conflict between the terms of this
Agreement and the terms of the First Modification, the terms of
this Agreement shall control.
4. Reaffirmation and Enlargement: The Borrower
confirms and reaffirms all of its representations, warranties
and covenants in the Loan Documents. 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. All references in the
Loan Documents to the Loan Agreement are hereby enlarged and
expanded to mean and include the Loan Agreement as hereby modified.
5. Mortgagors: The Borrower and the Accommodation
Party confirm the grant, pledge and mortgage of the properties
encumbered by the Mortgages, as and for continuing security for
the obligations of the Borrower under the Loan Documents. The
Borrower and the Accommodation Party warrant that the properties
encumbered by the Mortgages are subject to no liens or
encumbrances other than those set forth in the Mortgages.
6. No Offsets: The Borrower and the 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 the 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.
7. Successors and Assigns: This Agreement is binding
upon, and shall inure to the benefit of, the parties hereto and
their respective successors and assigns.
8. Counterparts: This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original and all of which taken together shall constitute one
and the same document, 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.
[The following page is the signature page.]
To signify their agreement, the parties have executed
this Second Loan Modification Agreement as of the date above
written.
MAUI LAND & PINEAPPLE BANK OF HAWAII, individually
COMPANY, INC. and as Agent
By /S/ PAUL J. MEYER By /S/ DOUG SPOTTSWOOD
Name: Paul J. Meyer Name: Doug Spottswood
Title: Executive Vice Title: Assistant Vice
President/Finance President
By /S/ ADELE H. SUMIDA
Name: Adele H. Sumida FIRST HAWAIIAN BANK
Title: Secretary
Borrower By /S/ ALAN H. ARIZUMI
Name: Alan H. Arizumi
Title: Vice President
KAPALUA LAND COMPANY, LTD.
CENTRAL PACIFIC BANK
By /S/ PAUL J. MEYER
Name: Paul J. Meyer
Title: Executive Vice By /S/ ROBERT D. MURAKAMI
President/Finance Name: Robert D. Murakami
Title: Vice President
By /S/ ADELE H. SUMIDA
Name: Adele H. Sumida
Title: Secretary AMERICAN AGCREDIT, PCA
Accommodation Party
By /S/ GARY VAN SCHUYVER
Name: Gary Van Schuyver
Title: Vice President
Lenders