FIRST LOAN MODIFICATION AGREEMENT
FIRST LOAN MODIFICATION AGREEMENT, dated December
31, 1997 (the "Amendment"), by and among MAUI LAND &
PINEAPPLE COMPANY, INC. (the "Borrower") and BANK OF HAWAII,
a Hawaii banking corporation ("BKOH"), FIRST HAWAIIAN BANK, a
Hawaii banking corporation ("FHB"), CENTRAL PACIFIC BANK, a
Hawaii banking corporation ("CPB" and, together, with BKOH,
and FHB, the "Lenders") and BANK OF HAWAII, as Agent for the
Lenders (in such capacity, together with its successors in
such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, Lenders and Agent are
parties to that certain Amended and Restated Revolving and
Term Loan Agreement, dated as of December 4, 1996 (the "Loan
Agreement"), pursuant to which the Lenders have made Loans to
the Borrower on the terms and conditions stated therein; and
WHEREAS, the Borrower, Lenders and Agent have
agreed to amend the Loan Agreement and the other Loan
Documents (as such term is defined in the Loan Agreement) for
the purposes of, among other things, (i) providing that the
rate per annum at which the Loans bear interest shall be, at
the option of the Borrower, either the Base Rate or LIBOR
(for one, two, three or six-month interest periods), plus (a)
during the Revolving Loan Period, two and one-quarter
percentage points (2.25%) and (b) during the period
commencing on the Expiry Date and ending on the Maturity
Date, two and one-half percentage points (2.50%), (ii)
extending the maturity date of the Notes and amending and
(iii) restating certain covenants of the Borrower set forth
in the Loan Agreement, all as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises
and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, each of the Borrower,
Lenders and Agent agree as follows:
SECTION 1. Definitions. Capitalized terms used
herein and not otherwise defined herein shall have the mean
ings ascribed to them in the Loan Agreement.
SECTION 2. Amendments to Loan Agreement.
(a) Effective on and after the Effective Date (as
such term is defined in Section 5 of this Amendment), Section
1.11 of the Loan Agreement is amended and restated in its
entirety to read as follows:
"1.11 "Expiry Date" means December 31, 1999."
(b) Effective on and after the Effective Date,
Section 1.25 of the Loan Agreement is amended and restated in
its entirety to read as follows:
"1.25 "Maturity Date" means December 31, 2002."
(c) Effective on and after the Effective Date,
Article I of the Loan Agreement is amended to add thereto
certain definitions as Sections 1.40 through 1.50 which shall
read as follows:
"1.40 'Eurodollar Day' means a Business Day which
is also a day for trading by and between banks in U.S.
dollar deposits in the London interbank Eurodollar
market."
"1.41 'Eurodollar Reserve Requirement' means the
then maximum effective rates per annum (expressed as a
percentage), as determined solely by the Agent (which
determination shall be final, conclusive and binding on
all of the parties hereto, absent manifest error), of
the reserve requirements imposed pursuant to Regulation
D by the Board of Governors of the Federal Reserve
System on $1,000,000 'Eurocurrency Liabilities' of the
Agent, having a maturity equal to the term of the
applicable LIBOR Interest Period."
"1.42 'Interest Period' means and includes any
LIBOR Interest Period and any period for which interest
in respect of the Loans is calculated on the basis of
the Base Rate and determined in accordance with this
Amendment and Restatement."
"1.43 'LIBOR' means, for each LIBOR Interest
Period, a rate computed pursuant to the following
formula and adjusted as of the date of any change in the
Eurodollar Reserve Requirements:
Interbank Eurodollar Index Rate X 100
100% - Eurodollar Reserve Requirement
'Interbank Eurodollar Index Rate' means
the rate per annum (expressed as a percentage) at
which leading banks, as determined by the Agent,
are offered deposits in United States Dollars in
the London interbank Eurodollar market as of 11:00
a.m., London time, on the day three (3) Eurodollar
Days prior to the beginning of such LIBOR Interest
Period; for delivery in immediately available funds
on the first day of such LIBOR Interest Period, in
an amount equal or comparable to the principal
amount of the applicable LIBOR Loan to be
outstanding and for a period equal to the term of
such LIBOR Interest Period."
"1.44 'LIBOR Loan' means any Loan during any period
during which such Loan is bearing interest at a rate
based upon LIBOR, as provided in Section 2.07(a)(4)(ii)
or Section 2.07(b)(ii) of this Amendment and
Restatement, as the case may be."
"1.45 'LIBOR Interest Period' means, with respect
to each LIBOR Loan, an Interest Period consisting of one
(1) month, two (2) months, three (3) months or six (6)
months, as designated by the Borrower in accordance with
Section 2.07(a)(4) or Section 2.07(b) of this Amendment
and Restatement, as the case may be."
"1.46 'Notice of Conversion' shall have the
meaning provided in Section 2.07(d) of this Amendment
and Restatement."
"1.47 'Type' means either a Base Rate Loan or a
LIBOR Loan."
"1.48 'Base Rate Loan' means a Loan which bears
interest at a rate per annum determined in accordance
with Section 2.07(a)(4)(i) or Section 2.07(b)(i) of this
Amendment and Restatement."
"1.49 'Borrowing' means the draw down at any one
time of the proceeds of a Loan pursuant to this
Amendment and Restatement.
"1.50 'Regulation D means Regulation D of the
Board of Governors of the Federal Reserve System as from
time to time in effect or any successor to all or a
portion thereof establishing reserve requirements."
(d) Effective on and after the Effective Date,
Section 2.05(c) of the Loan Agreement is amended and restated
in its entirety to read as follows:
"(c) Extension Fee. For and in respect of the
extension of the Revolving Period effected by this
Amendment and Restatement, the Borrower shall also pay
to the Agent on or before the Effective Date for pro
rata distribution to each Lender, an extension fee in
the aggregate principal amount of $10,000."
(e) Effective on and after the Effective Date,
Section 2.06(B) of the Loan Agreement is amended and restated
in its entirety to read as follows:
"B. Voluntary Reduction. The Borrower shall
have the right, at any time and from time to time, upon
not less than one full calendar month's prior written
notice to the Agent, to voluntarily reduce the amount of
the Aggregate Loan Commitment, in any integral multiple
of $1,000,000. Contemporaneously with each such
voluntary reduction, the Borrower shall repay or prepay
to the Lenders, through the Agent, the amount, if any,
by which the then outstanding aggregate principal
balance of the Loans exceeds the Aggregate Loan
Commitment as so reduced. Notwithstanding any provision
in this Amendment and Restatement to the contrary, in no
event shall any such voluntary reduction which results
in a prepayment of any LIBOR Loan occur on any day other
than the last day of the LIBOR Interest Period
applicable to such LIBOR Loan."
(f) Effective on and after the Effective Date,
Section 2.07 of the Loan Agreement is amended and restated in
its entirety to read as follows:
"2.07 Interest Rates and Payments of
Interest. Interest on the principal balance of the
Loans shall accrue and be paid at the rates, at the
times and in the manner stated in the Notes and as
follows:
(a) Revolving Period. Outstanding balances
of principal of the Revolving Loans shall bear interest
at the following rates per annum:
(1) During the period commencing on the
date of initial disbursement of proceeds of the
Revolving Loans, to and including December 31, 1993, a
floating rate equal to the Base Rate in effect from time
to time;
(2) During the period commencing on
January 1, 1994 to and including May 15, 1995, a
floating rate equal to one-half of one percentage point
(0.5%), plus the Base Rate in effect from time to time;
(3) During the period commencing on May
15, 1995, to and including December 31, 1997, a floating
rate equal to one-quarter of one percentage point
(0.25%), plus the Base Rate in effect from time to time;
and
(4) During the period (the "Remaining
Revolving Period") commencing on January 1, 1998, to and
including the Expiry Date, at the option of the Borrower
initially either (i) a floating rate equal to the Base
Rate in effect from time to time or (ii) LIBOR, plus two
and one-quarter percentage points (2.25%). The Borrower
shall give to the Agent no later than December 29,
1997 a written notice (the "Notice of Initial Interest
Rate Election") that it elects to have the Revolving
Loans bear interest as Base Rate Loans or LIBOR Loans,
which Notice of Initial Interest Rate Election shall
comply in all respects with the provisions of this
Section 2.07(a)(4). Notwithstanding any provision in
this Amendment and Restatement to the contrary, if the
Borrower fails to give such Notice of Initial Interest
Rate Election to the Agent on or before December 29,
1997, the Revolving Loans initially shall bear interest
from and after January 1, 1998 as Base Rate Loans. In
the event that the Borrower, pursuant to and in accor
dance with this Section 2.07(a)(4), elects to have the
Revolving Loans initially bear interest from and after
January 1, 1998 as LIBOR Loans, such Notice of Initial
Interest Rate Election must state whether the initial
LIBOR Interest Period applicable to the Revolving Loans
shall be a period of one month, two months, three months
or six months. With respect to all LIBOR Loans in
effect during the Remaining Revolving Period, the
Borrower shall give to the Agent at least three (3)
Eurodollar Days prior to the last day of the LIBOR
Interest Period then applicable to such LIBOR Loans a
written notice stating whether the Borrower elects to
continue such Loan as a LIBOR Loan and the LIBOR
Interest Period to be applicable thereto or as a Base
Rate Loan; provided that in no event shall the Borrower
have the right (x) to select a LIBOR Interest Period
that extends beyond the Expiry Date or (y) if at the
time of such election, an Event of Default shall have
occurred, to continue such Loan as LIBOR Loan. Notwith
standing any provision in this Amendment and Restatement
to the contrary, in no event shall the Borrower have the
right to borrow a Revolving Loan or to convert or con
tinue any Revolving Loan as a LIBOR Loan, unless the
amount of such new Revolving Loan equal to or greater
than $500,000 or, with respect to a conversion or con
tinuation of a Revolving Loan as a LIBOR Loan, the
aggregate principal amount of all Revolving Loans is
equal to or greater than $500,000.
During the Revolving Period, interest accruing on
the principal balance of the Revolving Loans at the
rate(s) per annum aforesaid shall be due and payable (i)
quarterly in arrears on the last day of each March,
June, September and December, (ii) on the Expiry Date,
(iii) on the last day of each LIBOR Interest Period and
(iv) at maturity (whether by acceleration or otherwise).
"(b) Term Loan Period. 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 two and
one-half percentage points (2.50%). The Borrower shall
give to the Agent no later than the date (the "Term Loan
Interest Election Date") three (3) Eurodollar Days pre
ceding the Expiry Date, a written notice (the "Notice of
Interest Rate Election") that it elects to have the Term
Loans bear interest as Base Rate Loans or LIBOR Loans,
which Notice of Interest Rate Election shall comply in
all respects with the provisions of this Section
2.07(b). Notwithstanding any provision in this
Amendment and Restatement to the contrary, if the
Borrower fails to give such Notice of Interest Rate
Election to the Agent on or before the Term Loan
Interest Election Date, the Term Loans initially shall
bear interest from and after the date which the Term
Loans are made as Base Rate Loans. In the event that
the Borrower, pursuant to and in accordance with this
Section 2.07(b), elects to have the Term Loans initially
bear interest as LIBOR Loans, such Notice of Interest
Rate Election must state whether the initial LIBOR
Interest Period applicable to the Term Loans shall be a
period of one month, two months, three months or six
months. With respect to all LIBOR Loans in effect
during the Term Loan Period, the Borrower shall give to
the Agent at least three (3) Eurodollar Days prior to
the last day of the LIBOR Interest Period then
applicable to such LIBOR Loans a written notice stating
whether the Borrower elects to continue such Loan as a
LIBOR Loan and the LIBOR Interest Period to be
applicable thereto or as a Base Rate Loan; provided that
in no event shall the Borrower have the right (x) to
select a LIBOR Interest Period that extends beyond the
Maturity Date or (y) if at the time of such election, an
Event of Default shall have occurred, to continue such
Loan as LIBOR Loan. Notwithstanding any provision in
this Amendment and Restatement to the contrary, in no
event shall the Borrower have the right to borrow, con
vert or continue any Term Loan as a LIBOR Loan, unless
the aggregate principal amount of all Term Loans is
greater than or equal to $500,000.
From and after the date of the making of the Term
Loans, interest accruing on the principal balance of the
Term Loans at the floating rate(s) per annum aforesaid
shall be due and payable (i) quarterly in arrears on the
last day of each March, June, September and December and
(ii) on the last day of each LIBOR Interest Period and
(iii) at maturity (whether by acceleration or
otherwise).
"(c) General. With respect to all Loans:
(1) "Base Rate" means the primary index
rate established from time to time by Bank of Hawaii in
the ordinary course of its business and with due consid
eration of the money market, and published by intrabank
memoranda for the guidance of its loan officers in pric
ing all of its loans which float with the Base Rate.
(2) The Base Rate will increase or
decrease during the term of this Loan Agreement if there
is an increase or decrease in the rate to which the Base
Rate is tied. If the rate to which the Base Rate is
tied is no longer available, the Agent will choose a new
rate that is based on comparable information.
(3) Interest shall be computed on the ba
sis of the actual number of days elapsed between
payments and on the basis of (x) with respect to Base
Rate Loans, a 365-day year (or, in leap years, on the
basis of 366-day year) and (y) with respect to LIBOR
Loans, on the basis of a 360-day year.
(4) In computing interest on each Loan,
the date of the making of such Loan shall be included
and the date of payment shall be excluded; provided,
however, that if a Loan is repaid on the same day on
which it is made, such day shall nevertheless be
included in computing interest thereon.
(5) In no event shall the Borrower be ob
ligated to pay any amount under this Amendment and
Restatement that exceeds the maximum amount allowable by
law. If any sum is collected in excess of the
applicable maximum amount allowable by law, the excess
collected shall, at the Lenders' discretion, be applied
to reduce the principal balance of the Loans or returned
to the Borrower.
(6) The foregoing rates of interest
shall be subject to the provisions of Section 6.02(c)
hereof relating to the Default Rate upon the occurrence
and during the continuance of an Event of Default.
"(d) At any time and from time to time, the
Borrower may elect, subject to the condition precedent
that no Event of Default shall have occurred and is con
tinuing, to convert the Loans from one Type to another
Type at any time and from time to time prior to the
Expiry Date, with respect to the Revolving Loans, or the
Maturity Date, with respect to the Term Loans, as the
case may be. Each time that the Borrower elects to con
vert Loans from one Type to another Type, it shall
deliver to the Agent a written notice (a "Notice of Con
version") at least three (3) Business Days, if such
Loans are to be converted to Base Rate Loans, or at
least three (3) Eurodollar Days, if such Loans are to be
converted to LIBOR Loans, prior to the date on which
such conversion is to be effective. Each such
Notice of Conversion shall state (i) the date (the
"Conversion Date") on which such conversion is to occur,
which date shall be (1) a Business Day, if such Loans
are to be converted from LIBOR Loans to Base Rate Loans
or (2) a Eurodollar Day, if such Loans are to be
converted to LIBOR Loans, (ii) whether such Loans are to
be converted to Base Rate Loans or a LIBOR Loans and
(iii) with respect to the conversion from Base Rate
Loans to LIBOR Loans, the LIBOR Interest Period which
shall be applicable to the LIBOR Loans upon such
conversion. Notwithstanding any provision in this Amend
ment and Restatement to the contrary, in no event shall
the Borrower have any right to select any LIBOR Interest
Period which extends beyond the Expiry Date, if such
Loans are Revolving Loans, or the Maturity Date, if such
Loans are Term Loans."
(g) Effective on and after the Effective Date,
Section 2.08(c)(1) of the Loan Agreement is amended and
restated in its entirety to read as follows:
"(1) Principal balances outstanding under the
Notes shall be paid, and may be prepaid without penalty
or premium, in the amounts, at the times and in the
manner stated herein and in the Notes. No payment or
prepayment of principal under any of the Notes shall be
made without a concurrent payment or prepayment of prin
cipal under the other Notes, and all principal amounts
paid or prepaid on the Notes shall be shared among the
Lenders pro rata, in accordance with their respective
Individual Loan Commitment Percentages. Payments and
prepayments of principal, during the Revolving Loan
Period, shall be in amounts not less than $250,000, and
in integral multiples of $50,000. Notwithstanding any
provision in this Amendment and Restatement to the con
trary, in no event shall any prepayment of any LIBOR
Loan occur on any day other than the last day of the
LIBOR Interest Period applicable to such LIBOR Loan."
(h) Effective on and after the Effective Date,
Section 2.10 of the Loan Agreement is amended and restated in
its entirety to read as follows:
"2.10 Payment Dates. Whenever any payment of
principal of, or interest on, any Loan or of any commit
ment fee shall be due on a day which is not a Business
Day or Eurodollar Day, as may be applicable, the date
for payment thereof shall be extended to the next
succeeding Business Day or Eurodollar Day, as the case
may be. If the date for any payment of principal is
extended by operation of law or otherwise, interest
shall be payable for such extended time."
(i) Effective on and after the Effective Date,
Section 2.11 of the Loan Agreement is amended to add thereto
a new subsection (c) which shall read as follows:
"(c) LIBOR Regulations. In the event that any
Lender shall have reasonably determined (which determina
tion shall be final and conclusive and binding upon all
parties) that:
(i) on any date for determining LIBOR
for any LIBOR Interest Period, by reason of any change
after the date hereof affecting the interbank Eurodollar
market or affecting the position of such Lender in such
market, adequate and fair means do not exist for
ascertaining the applicable interest rate by reference
to LIBOR; or
(ii) at any time, by reason of (y) any
change after the date hereof in any applicable law or
governmental rule, regulation or order (or any interpre
tation thereof by a Government Authority or otherwise
(provided that, in the case of an interpretation not by
a governmental authority, such interpretation shall be
made in good faith and shall have a reasonable basis)
and including the introduction of any new law or
governmental rule, regulation or order), to the extent
not provided for in clause (iii) below, or (z) in the
case of LIBOR Loans, other circumstances affecting such
Lender or the interbank Eurodollar market or the
position of such Lender in such market, LIBOR shall not
represent the effective pricing to such Lender for
funding or maintaining the affected LIBOR Loan; or
(iii) at any time, by reason of the
requirements of Regulation D or other official reserve
requirements, LIBOR shall not represent the effective
pricing to such Lender for funding or maintaining the
affected LIBOR Loan; or
(iv) at any time, that the making or con
tinuance of any LIBOR Loan has become unlawful by compli
ance by such Lender in good faith with any law, govern
mental rule, regulation, guideline or order, or would
cause severe hardship to such Lender as a result of a
contingency occurring after the date hereof which materi
ally and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Lender shall on such
date of determination give notice (by telephone
confirmed in writing) to the Agent and the Borrower of
such determination. Thereafter, in the case of clause
(i), (ii) or (iii) above, (and without affecting
Borrower's obligations to pay interest on the Loans at
the rates set forth in Section 2.07 hereof) Borrower
shall pay to the Agent for payment to such Lender, upon
written demand therefor, such additional amounts deemed
in good faith by such Lender to be material (in the form
of an increased rate of, or a different method of cal
culating, interest or otherwise as the Agent or such
Lender in its discretion shall determine) as shall be
required to cause such Lender to receive interest with
respect to its affected LIBOR Loan at a rate per annum
equal to the sum of (x) the applicable rate per annum
determined in accordance with Section 2.07(a)(4)(ii) or
Section 2.07(b)(ii), as the case may be, hereinabove,
plus (y) the effective pricing to such Lender to make or
maintain such LIBOR Loan, and in the case of clause
(iv), Borrower shall within five (5) Business Days
prepay all LIBOR Loans so affected, together with all
accrued interest thereon, subject to the provisions of
Section 2.11(d) hereinbelow. A certificate as to
additional amounts owed to any Lender, showing in
reasonable detail the basis for the calculation thereof,
submitted to Borrower and the Agent by the Lender shall,
absent manifest error, be final, conclusive and binding
upon all of the parties hereto.
(d) At any time that any of its Loans are
affected by the circumstances described in Section
2.11(c) Borrower may (i) if the affected LIBOR Loan is
then being made pursuant to a Borrowing or a conversion,
cancel said Borrowing or conversion by giving the
Borrower notice thereof by telephone (confirmed in writ
ing) pursuant to Section 2.11(c) or (ii) if the affected
LIBOR Loan is then outstanding, upon at least three (3)
Eurodollar Days' written notice to the Lender, require
the Lender to convert such LIBOR Loan into a Base Rate
Loan."
(j) Effective on and after the Effective Date,
Section 5.01(F)(3) of the Loan Agreement is amended to add
thereto a new subsection (c) which shall read as follows:
"(3) A minimum Net Worth of at least
(a) on December 31, 1995, the amount of
$57,000,000,
(b) on December 31, 1996, an amount equal to the
sum of (i) $57,000,000, plus (ii) 50% of the cumulative
net profits (but not any net losses) of the Borrower for
the fiscal year ending on such date, and
(c) for the fiscal period of the Borrower ending on
December 31, 1997 and at all times thereafter, an amount
equal to the sum of (i) $58,300,000, plus (ii) 50% of
the cumulative net profits (but not any net losses) of
the Borrower from and after September 30, 1997."
(k) Effective on and after the Effective Date,
Section 5.01(N) of the Loan Agreement is amended and restated
in its entirety to read as follows:
"(N) The Borrower will pay to the Agent, on
(or at the Borrower's option, before) (i) July 1 of each
year prior to July 1, 1998, a $25,000 Agent's Fee and
(ii) commencing on July 1, 1998 and on each July 1 of
each year thereafter, a $15,000 Agent's Fee, in each
case for services rendered and to be rendered by the
Agent under the Agency Agreement."
(l) Effective on and after the Effective Date,
Section 5.02(C) of the Loan Agreement is amended and restated
in its entirety to read as follows:
"(C) The Borrower will not declare or pay any
dividends, or make any other payment or distribution on
account of its capital stock, except that, subject to
the satisfaction in full of the condition precedent that
the Agent shall have received, prior to any declaration
or payment of cash dividends, the Borrower's audited
annual financial statements for the 1997 fiscal year and
for each fiscal year thereafter of the Borrower, the
Borrower may declare and pay cash dividends for and in
respect of the third and fourth quarters of 1996 and for
any fiscal year of the Borrower, beginning with the
Borrower's 1997 fiscal year and for each fiscal year of
the Borrower thereafter, provided that (i) dividends
paid for the third quarter of 1996 do not exceed 30% of
its Net Profits through the first three quarters of
1996, (ii) cumulative dividends paid in respect of the
third and fourth quarters of 1996 and for each fiscal
year of the Borrower thereafter do not exceed 30% of its
Net Profits for 1996, (iii) dividends paid for the 1997
fiscal year do not exceed 30% of its Net Profits for the
Borrower's 1997 fiscal year and (iv) dividends paid for
each fiscal year of the Borrower after the Borrower's
1997 fiscal year do not exceed 30% of its Net Profits
for such fiscal year."
(m) Effective on and after the Effective
Date, Section 5.02(D) of the Loan Agreement is amended
and restated in its entirety to read as follows:
"(D) Neither the Borrower nor any
Subsidiary will make any Capital Expenditures or
any Investments, or both, in any of the fiscal
years listed below in column (a) which, together
with all other Capital Expenditures and
Investments made by the Borrower and its
Subsidiaries in any such fiscal year, will exceed
in the aggregate the amount shown opposite such
fiscal year listed below in column (b):
(a) (b)
1992 $14.0 Million
1993 $13.0 Million
1994 $11.0 Million
1995 $10.0 Million
1996 $ 8.5 Million
thereafter $10.0 Million"
(n) Effective on and after the Effective Date,
Section 5.02(H) of the Loan Agreement is amended and restated
in its entirety to read as follows:
"(H) Neither the Borrower nor any Subsidiary,
without the prior written consent of all of the Lenders,
will incur, agree to incur, assume, or in any manner
become liable in respect of any Indebtedness for Bor
rowed Money (recourse or nonrecourse) other than the
indebtedness evidenced by the Notes and this Loan
Agreement and additional indebtedness which, together
with the indebtedness evidenced by the Notes and this
Loan Agreement, shall cause Total Debt to not exceed:
(a) $66,000,000 in the aggregate princi
pal amount as of December 31, 1993, and
(b) $63,000,000 in the aggregate princi
pal amount as of March 31, 1994, and
(c) $65,000,000 in the aggregate princi
pal amount as of June 30, 1994, and
(d) $69,000,000 in the aggregate princi
pal amount as of September 30, 1994, and
(e) $57,000,000 in the aggregate princi
pal amount as of December 31, 1994, and
(f) $58,000,000 in the aggregate princi
pal amount as of March 15, 1995, and
(g) $53,000,000 in the aggregate princi
pal amount as of May 5, 1995, and
(h) $50,000,000 in the aggregate princi
pal amount as of December 31, 1995, and
(i) $40,000,000 in the aggregate princi
pal amount as of December 31, 1996 and
(j) $44,000,000 in the aggregate princi
pal amount as of December 31, 1997 and thereafter.
For the purposes of this Section 5.02(H), KCA's debt
approved by the Lenders pursuant to the last sentence in
Section 5.02(I) of this Amendment and Restatement, and
any KCA debt which is Nonrecourse to the Borrower,
including that portion subject to Borrower's Limited Pay
ment Guaranty, shall not be deemed to constitute
indebtedness of the Borrower or any Subsidiary."
SECTION 3. General Amendments.
All references set forth in the Loan Agreement
(including, without limitation, all exhibits, schedules and
appendices thereto), the Notes, the Mortgage, the Agency
Agreement, the Environmental Indemnity Agreement, the Addi
tional Security Mortgage and the other documents, instruments
and agreements relating to the Loan Agreement, the Notes, the
Mortgage, the Agency Agreement, the Environmental Indemnity
Agreement, the Additional Security Mortgage or to the loans
made under the Loan Agreement by the Lenders to the Borrower
(collectively, the "Loan Documents") to (i) the Loan Agree
ment, is amended to mean and include the Loan Agreement, as
amended by this Amendment, and as may be further amended,
modified and supplemented from time to time by written agree
ment between the parties hereto, (ii) the Notes, are amended
to mean and include the Notes, as amended by this Amendment,
and as may be further amended from time to time, (iii) the
Mortgage, is amended to mean and include the Mortgage, as
amended from time to time, and (iv) the other Loan Documents,
or any of them, are amended to mean and include such Loan
Documents, as amended from time to time.
SECTION 4. Representations, Warranties and
Agreements.
The Borrower hereby:
(a) reaffirms each and all of its representa
tions and warranties set forth in Section 4.01 of the Loan
Agreement as being true and correct on and as of the date
hereof with the same force and effect as if such representa
tions and warranties were set forth in full herein (provided
that the representations and warranties set forth in Section
4.01(F) of the Loan Agreement shall for the purposes hereof
be deemed to be made with respect to the Borrower's financial
statements most recently delivered to the Lenders pursuant to
the Loan Agreement);
(b) represents and warrants that no Event of
Default and no event, which with the lapse of time, the
giving of notice or both would constitute an Event of
Default, has occurred and is continuing on and as of the date
hereof;
(c) represents and warrants that no material
adverse change in the condition (financial or otherwise) of
the Borrower has occurred since the periods covered by the
Borrower's financial statements most recently delivered to
the Lenders pursuant to the Loan Agreement;
(d) represents and warrants that each of this
Amendment, the Loan Agreement, as amended by this Amendment,
and each of the Notes, as amended by this Amendment has been
duly authorized, executed and delivered by the Borrower and
constitutes the legal, valid and binding obligation of the
Borrower and is enforceable in accordance with its terms;
(e) represents and warrants that the execu
tion, delivery and performance of this Amendment do not and
will not violate articles of incorporation, by-laws, any ap
plicable laws, rules, regulations, orders, injunctions, writs
or decrees or result in a breach of or constitute a default
under any contract, agreement or instrument to which the Bor
rower is a party or by which the Borrower, or its properties
are bound, or result in the creation or imposition of any
security interest in, or lien or encumbrance upon any
property or assets of the Borrower, except in favor of the
Lenders; and
(f) represents and warrants that no consent
or withholding of objection, approval or authorization of or
declaration or filing with, or the taking of any other action
by or in respect of any governmental body or regulatory au
thority or any other Person is required in connection with
the execution, delivery and performance of this Amendment,
other than as may have been obtained or effected prior to the
date hereof, and in respect of which the Borrower shall have
notified the Lenders in writing on or prior to the date
hereof.
SECTION 5. Effectiveness. Notwithstanding any
thing herein to the contrary, the amendments to the Loan
Agreement and the other Loan Documents set forth in Sections
2 and 3 of this Amendment, shall amend the provisions of the
Loan Agreement, Notes and the other Loan Documents as of
December 31, 1997 (the "Effective Date"), when each and all
of the following conditions precedent shall have been
satisfied in full:
(a) Delivery of this Amendment. Each of the
parties hereto shall have duly executed and delivered to the
Agent this Amendment.
(b) No Default. On and as of the Effective
Date, no Event of Default shall have been declared by the
Lenders under the Loan Agreement.
(c) Payments; Charges; Fees. The Borrower
shall have paid to the Lenders in accordance with the terms
of the Loan Agreement all payments, charges and fees required
to have been paid on or before the Effective Date by the
terms of the Loan Agreement or the other Loan Documents, and
in addition, shall have paid to the Agent for pro rata dis
tribution to the Lenders an extension fee in the amount of
$10,000.
(d) Consents. There shall have been obtained
all third-party consents, if any, necessary or appropriate to
effect the amendments and consummate the transactions set
forth in this Amendment.
SECTION 6. Limitations. The amendments to the
Loan Agreement, the Notes and the other Loan Documents set
forth hereinabove in Sections 2 and 3 of this Amendment shall
be limited precisely as written and shall not, except as
expressly provided herein, be deemed otherwise to be a
consent to any waiver, amendment or modification of any other
terms or conditions of the Loan Agreement or any of the other
Loan Documents. The Loan Agreement and other Loan Documents,
heretofore amended and as amended hereby, are in all respects
ratified and confirmed and shall remain in full force and
effect.
SECTION 7. Further Assurances. The Borrower shall
take all such further actions and execute and deliver all
such further documents and instruments as the Lenders may
from time to time reasonably request to further evidence or
effect the transactions contemplated by this Amendment.
SECTION 8. Counterparts. This Amendment may be
executed in two or more counterparts, each of which shall be
an original hereof, but all of which together shall consti
tute but one and the same instrument.
SECTION 9. Headings. The section headings in this
Amendment have been inserted for convenience of reference
only and shall in no manner affect the meaning or
interpretation of the various provisions hereof.
SECTION 10. Governing Law. This Amendment shall
be governed by, and construed in accordance with, the laws of
the State of Hawaii.
SECTION 12. Expenses of the Agent. Without in any
way limiting the obligations of the Borrower under Section
7.04 of the Loan Agreement, the Borrower shall reimburse the
Agent for all of the costs and expenses of the Agent in con
nection with the preparation of this Amendment, including,
but not limited to, reasonable attorneys fees and expenses.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed on the date first-above
written.
MAUI LAND & PINEAPPLE COMPANY, INC.
By: /S/ PAUL J. MEYER
Its: EXECUTIVE VICE PRESIDENT/
FINANCE
By: /S/ DARRYL Y. H. CHAI
Its: TREASURER
BANK OF HAWAII, individually
and as Agent
By: /S/ PETER HO
Its: V.P.
FIRST HAWAIIAN BANK
By: /S/ ANN M. K. LEE
Ann M. K. Lee
Its: Assistant Vice President
CENTRAL PACIFIC BANK
By: /S/ ALWYN CHIKAMOTO
Its: Senior Vice President & Manager
Corporate Banking Division