SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ X ] Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the Quarterly Period Ended September 30, 2010
or
[ ] Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the transition period from _____ to _____
Commission file #0-50273
KAANAPALI LAND, LLC
(Exact name of registrant as specified in its charter)
Delaware 01-0731997
(State of organization) (IRS Employer Identification No.)
900 N. Michigan Ave., Chicago, IL 60611
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code 312/915-1987
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days.
Yes [ X ] No [ ]
Indicate by check mark whether the registrant has submitted electronically
and posted on its corporate Web site, if any, every Interactive Data File
required to be submitted and posted pursuant to Rule 405 of Regulation S-5)
232.405 of this chapter) during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post such
files). Yes [ ] No [ ]
Indicate by check mark whether the registrant is a large accelerated filer,
an accelerated filer, non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer," "accelerated
filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [ X ]
(Do not check if a smaller
reporting company)
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Exchange Act). Yes [ ] No [ X ]
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a
plan confirmed by a court. Yes [ X ] No [ ]
As of October 31, 2010, the registrant had 1,792,613 shares of Common
Shares and 52,000 Class C Shares outstanding.
TABLE OF CONTENTS
PART I FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements. . . . 3
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations . . . . . . . . . . . . . . . . . . . . 19
Item 4. Controls and Procedures. . . . . . . . . . . . . . 24
PART II OTHER INFORMATION
Item 1. Legal Proceedings. . . . . . . . . . . . . . . . . 25
Item 1A. Risk Factors . . . . . . . . . . . . . . . . . . . 25
Item 6. Exhibits . . . . . . . . . . . . . . . . . . . . . 25
SIGNATURE . . . . . . . . . . . . . . . . . . . . . . . . . 26
PART I FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
KAANAPALI LAND, LLC
Condensed Consolidated Balance Sheets
September 30, 2010 and December 31, 2009
(Dollars in Thousands, except share data)
(Unaudited)
A S S E T S
-----------
September 30, December 31,
2010 2009
------------ -----------
Cash and cash equivalents . . . . . . . $ 7,286 16,936
Short-term investments. . . . . . . . . 15,977 --
Receivables, net. . . . . . . . . . . . 187 120
Property, net . . . . . . . . . . . . . 97,945 100,013
Pension plan assets . . . . . . . . . . 24,130 23,010
Note receivable . . . . . . . . . . . . -- 12,793
Other assets. . . . . . . . . . . . . . 2,817 2,723
-------- --------
$148,342 155,595
======== ========
L I A B I L I T I E S
---------------------
Accounts payable and accrued expenses . $ 1,186 1,986
Deferred income taxes . . . . . . . . . 23,445 23,261
Accrued benefit obligation. . . . . . . -- 1,713
Other liabilities . . . . . . . . . . . 21,018 21,949
-------- --------
Total liabilities . . . . . . . 45,649 48,909
Commitments and contingencies
S T O C K H O L D E R S' E Q U I T Y
-------------------------------------
Common stock, at 9/30/10 and
12/31/09 non par value
(Shares authorized - 4,500,000,
Class C shares 52,000; shares issued
and outstanding - common shares
1,792,613 and Class C shares
52,000) . . . . . . . . . . . . . . . -- --
Additional paid-in capital. . . . . . . 5,471 5,471
Accumulated other comprehensive
income, net of tax. . . . . . . . . . (5,604) (5,893)
Accumulated earnings. . . . . . . . . . 102,826 107,108
-------- --------
Total stockholders' equity. . . 102,693 106,686
-------- --------
$148,342 155,595
======== ========
The accompanying notes are an integral part
of the condensed consolidated financial statements.
KAANAPALI LAND, LLC
Condensed Consolidated Statements of Operations
Three and Nine Months Ended September 30, 2010 and 2009
(Unaudited)
(Dollars in Thousands, except per share data)
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ------------------
2010 2009 2010 2009
-------- -------- -------- --------
Revenues:
Sales and rental revenues . $ 1,091 673 2,618 2,350
Interest and other income . 49 295 740 901
-------- -------- -------- --------
1,140 968 3,358 3,251
-------- -------- -------- --------
Cost and expenses:
Cost of sales . . . . . . . 3,361 490 5,194 2,187
Selling, general and
administrative. . . . . . 1,084 1,620 2,201 4,626
Depreciation and
amortization. . . . . . . 75 72 226 212
-------- -------- -------- --------
4,520 2,182 7,621 7,025
-------- -------- -------- --------
Operating income (loss)
from continuing
operations before
income taxes. . . . . . . (3,380) (1,214) (4,263) (3,774)
Income tax benefit
(expense) . . . . . . . . (3) 492 (19) 1,476
-------- -------- -------- --------
Net income (loss). . . . $ (3,383) (722) (4,282) (2,298)
======== ======== ======== ========
Earnings per share - basic:
Net income (loss). . . . $ (1.83) (0.39) (2.32) (1.25)
======== ======== ======== ========
Earnings per share - diluted:
Net income (loss). . . . $ (1.83) (0.39) (2.32) (1.25)
======== ======== ======== ========
The accompanying notes are an integral part
of the condensed consolidated financial statements.
KAANAPALI LAND, LLC
Condensed Consolidated Statements of Cash Flows
Nine Months Ended September 30, 2010 and 2009
(Unaudited)
(Dollars in Thousands)
2010 2009
-------- --------
Net cash provided by (used in)
operating activities. . . . . . . . . $ (5,808) (5,679)
Net cash provided by (used in)
investing activities
Property additions. . . . . . . . . (658) (1,380)
Proceeds from note receivable . . . 12,793 --
Purchase of short-term investments. (15,977) --
-------- --------
Net cash provided by (used in)
investing activities. . . . . (3,842) (1,380)
-------- --------
Net increase (decrease) in
cash and cash equivalents . . (9,650) (7,059)
Cash and cash equivalents
at beginning of period. . . . 16,936 25,780
-------- --------
Cash and cash equivalents
at end of period . . . . . . $ 7,286 18,721
======== ========
The accompanying notes are an integral part
of the condensed consolidated financial statements.
KAANAPALI LAND, LLC
Notes to Condensed Consolidated Financial Statements
(Unaudited)
(Dollars in Thousands)
The accompanying unaudited condensed consolidated financial
statements are prepared in accordance with accounting principles generally
accepted in the United States for interim financial information and with
the instructions to Form 10-Q and Article 10 of Regulation S-X.
Accordingly, they do not include all of the information and footnotes
required by accounting principles generally accepted in the United States
for complete financial statements, and therefore, should be read in
conjunction with the Company's Annual Report on Form 10-K (File No. 0-
50273) for the year ended December 31, 2009. Capitalized terms used but
not defined in this quarterly report have the same meanings as the
Company's 2009 Annual Report on Form 10-K.
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BASIS OF ACCOUNTING
Kaanapali Land, LLC ("Kaanapali Land"), a Delaware limited liability
company, is the reorganized entity resulting from the Joint Plan of
Reorganization of Amfac Hawaii, LLC (now known as KLC Land Company, LLC
("KLC Land")), certain of its subsidiaries (together with KLC Land, the
"KLC Debtors") and FHT Corporation ("FHTC" and, together with the KLC
Debtors, the "Debtors") under Chapter 11 of the Bankruptcy Code, dated
June 11, 2002 (as amended, the "Plan").
The Company's continuing operations are in two business segments -
Agriculture and Property. The Agriculture segment grows seed corn and
soybeans under contract and is engaged in farming and milling operations
relating to the coffee orchards on behalf of the applicable land owners.
The Property segment primarily develops land for sale and negotiates bulk
sales of undeveloped land. The Company held a first mortgage on the
Waikele Golf Course and certain recourse guarantees as security for a
promissory note received for a portion of the purchase price at closing.
As described below, in May 2010, the Company sold such note and assigned
the underlying security documents to a third party purchaser. The Property
and Agriculture segments operate exclusively in the State of Hawaii.
FASB ASC Topic 820, Fair Value Measurements and Disclosures,
establishes a framework for measuring fair value. That framework provides
a fair value hierarchy that prioritizes the inputs to valuation techniques
used to measure fair value. The hierarchy gives the highest priority to
unadjusted quoted prices in active markets for identical assets or
liabilities (level 1 measurements) and the lowest priority to unobservable
inputs (level 3 measurements). The three levels of the fair value
hierarchy are described as follows:
LEVEL 1 - Inputs to the valuation methodology are unadjusted quoted
prices for identical assets or liabilities in active
markets.
LEVEL 2 - Inputs to the valuation methodology include: quoted
prices for similar assets or liabilities in active
markets; quoted prices for identical or similar
instruments in inactive markets; or other inputs that
are observable for the asset or liability.
LEVEL 3 - Inputs to the valuation methodology are unobservable
and significant to the fair value measurement.
The asset or liability's fair value measurement level within the fair
value hierarchy is based on the lowest level of any input that is
significant to the fair value measurement. Valuation techniques used need
to maximize the use of observable inputs and minimize unobservable inputs.
PROPERTY
The Company's property holdings are on the island of Maui. The
Company has determined, based on its current projections for the
development and/or disposition of its property holdings, that (except for
inventory of land held for sale, as discussed below) the property holdings
are not currently recorded in an amount in excess of proceeds that the
Company expects that it will ultimately obtain from the operation and
disposition thereof.
Inventory of land held for sale is included in Property in the
consolidated balance sheets and is carried at the lower of cost or net
realizable value. Based on current and foreseeable market conditions,
discussions with real estate brokers and review of historical land sale
activity (level 2 and 3), the value of the inventory of land held for sale
was reduced by $2,500 as of September 30, 2010 to reflect the land held for
sale at the lower of carrying value or fair value less costs to sell,
primarily using a market approach to estimate fair value. The value
adjustment is reflected in cost of sales in the consolidated statements of
operations at September 30, 2010.
During 2008, the Company sold the Waikele Golf Course. The Company
received a promissory note in the sale in the original amount of $13,300
and the note is secured by the property along with corporate and personal
guarantees from the principal of the purchaser and an affiliate. The note
originally required monthly interest only payments of 7% per annum and was
due May 12, 2009. Certain seller representations and warranties existed
for one year after the date of sale. The Company entered into a note
modification agreement with the purchaser on May 12, 2009 and subsequent
note modification agreements on May 19, 2009, June 16, 2009 and
November 12, 2009. The note modifications allowed the purchaser to defer
payment of such promissory note until May 12, 2010; provided, however, that
the purchaser was required by such agreement to make principal and interest
payments in advance of maturity (before certain deductions for commissions
and other costs) of $200 on May 12, 2009, $50 on May 20, 2009, $100 on
June 16, 2009, $100 on June 23, 2009, $100 on September 12, 2009 and $1,000
on November 12, 2009. The note modifications also increased the interest
rate on the note to 8% per annum beginning July 12, 2009 and require
prepayment of interest through January 12, 2010 on November 12, 2009.
Pursuant to the note modification agreement dated November 12, 2009
("Effective Date"), the purchaser owed the Company a payment of
approximately $1,300 of principal and interest on the Effective Date. The
purchaser paid $253 on the Effective Date and the remaining amount due was
not paid. Pursuant to two letters dated November 30, 2009 and December 16,
2009 the guarantors of the promissory note were notified that the
promissory note was in default. On January 13, 2010, the Company made a
forbearance offer that was accepted by the purchaser. The forbearance
offer stated that the Company would accrue interest at the default rate of
12% per annum for the period November 13, 2009 through and including
January 12, 2010. Commencing as of January 13, 2010, interest accrued at
the rate of 10% per annum. Beginning February 12, 2010, the purchaser was
required to make monthly interest payments at a rate of 8% per annum on the
unpaid balance of the note. The interest of 2% not included in the monthly
pay rate was deferred until the earlier of payment of the promissory note
in full or May 12, 2010. The entire $253 the purchaser paid on
November 12, 2009, along with $103 the purchaser paid on January 20, 2010,
were applied to the accrued interest at the default rate noted above. On
March 20, 2010 the Company made a further offer of forbearance of up to 3%
interest per month in the event the purchaser should choose to devote said
amounts to current maintenance of the golf course in accordance with the
terms of the offer including the recommendations of a specified consultant
("offered maintenance deferral"). Under the offered maintenance deferral,
said interest was to be paid on the earlier of the payment of the note or
May 12, 2010. The purchaser accepted this forbearance offer. Each
forbearance offer by which the Company agreed to forebear from exercising
its remedies under the Note, was subject to certain conditions apart from
the interim payment requirements including, but not limited to the absence
of additional defaults under the note and underlying security documents.
All such agreements to defer interest and forebear from exercising remedies
were to expire on the extended maturity date of the promissory note,
May 12, 2010.
On May 5, 2010, the Company entered into an agreement with an
unaffiliated third party whereby the Company agreed to sell the promissory
note and assign the first mortgage and recourse guarantees (and other
security documents) to such third party, on a non-recourse basis, for an
aggregate purchase price of $12,500. The purchase price, which includes
all principal and accrued and unpaid interest on such promissory note
(including, but not limited to, the amounts previously deferred by the
Company), approximated the Company's net carrying value of the note. On
May 6, 2010, such transaction closed and the Company received the purchase
price. The Company recognized a gain of $138, included in interest and
other income, from the sale of the note.
USE OF ESTIMATES
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States requires management to
make estimates and assumptions that affect the amounts reported in the
financial statements and accompanying notes. Actual results could differ
from those estimates.
In the opinion of management, all adjustments necessary for a fair
presentation of the statement of financial position and results of
operations for the interim periods presented have been included in these
financial statements and are of a normal and recurring nature.
Operating results for the three and nine months ended September 30,
2010 are not necessarily indicative of the results that may be achieved in
future periods.
SHORT-TERM INVESTMENTS
It is the Company's policy to classify all of its investments in U.S.
Government obligations with original maturities greater than three months
as held-to maturity, as the Company has the ability and intent to hold
these investments until their maturity, and are recorded at amortized cost,
which approximates fair value. At September 30, 2010, short-term
investments consist of $15,977 of such securities purchased in June 2010
with $5,998 maturing in December 2010 and $9,979 maturing in June 2011.
Additionally, the amortized discount of $13 at September 30, 2010 is
reflected in interest and other income.
(2) LAND DEVELOPMENT
During the first quarter of 2006, the Company received final
subdivision approval on an approximate 336 acre parcel in the region
"mauka" (toward the mountains) from the main highway serving the area.
This project, called Kaanapali Coffee Farms, consists of agricultural lots,
which are available for sale to individual buyers. The land improvements
were completed during 2008. To date, the Company has closed on the sale of
six lots at Kaanapali Coffee Farms. In conjunction with the sales of two
of the lots, in addition to cash proceeds, the Company received promissory
notes for $692 and $737. The promissory notes have maturity dates of
October 2009 and November 2010, respectively. The note due in October 2009
was not paid on its schedule maturity date. Such note is secured by a
mortgage on the associated lot that is subordinated to a purchase money
mortgage held by a third-party lender. The Company has notified the
purchaser of such lot that the subordinated note is in default and default
interest has begun accruing thereon. The Company and such purchaser are
continuing to discuss a potential note modification, but there can be no
assurance that such a modification will be negotiated or the terms thereof.
The Company is currently negotiating an extension of the note due November
2010, which was not paid on its scheduled maturity date, with the purchaser
of the associated lot. Such note is secured by a first mortgage on such
lot. In the event that the Company and such purchasers are unable to agree
to a modification of the terms of the such notes, the Company will consider
its available remedies, including an action for foreclosure. The allowance
for doubtful accounts had a balance of $762 and $710 at September 30, 2010
and December 31, 2009, respectively.
Effective September 30, 2010, the Company entered an agreement with
an unaffiliated third party to sell an approximately 14.990 acre parcel of
property (the "Hospital Site") within the Company's Kaanapali 2020
development area for the construction of a hospital and acute care facility
and associated improvements (the "Medical Center"). The Hospital Site
consists of a portion of a parcel commonly known as the Pu'ukoli'i
Triangle, which had formerly been granted development rights for the
construction of market and affordable housing. The purchase price for the
Hospital Site is $3,300 of which $100 has been provided in the form of a
cash deposit that is not refundable after the close of due diligence except
in certain circumstances. In addition to the Hospital Site, the agreement
provides the purchaser with two separate options (the "Options") to
purchase two additional adjacent parcels of property of approximately 30
acres each (the "Option Parcels"), for a purchase price of $220 per acre,
which Options may only be exercised in the event that the purchaser closes
on the purchase of the Hospital Site. The Option Parcels must also be used
for medical and health-related purposes as set forth in the agreement.
Various provisions of the agreement specify responsibilities for the
granting of easements by the Company and the construction of various
infrastructure improvements by the parties.
Upon closing, the purchaser is required to make an additional payment
of $1,700 to purchase the Options, which amount is creditable against the
purchase price of each of the Option Parcels in accordance with the amounts
allocated to each as set forth in the agreement. The Option for the first
Option Parcel must be exercised within three years after the commencement
of the subdivision of such site by the Company (which shall be a date that
is two years after the closing of the purchase of the Hospital Site, or
such earlier date as the purchaser may elect). The purchaser has an
additional year to exercise the second Option, so long as the purchaser has
previously exercised the first Option. The Company may terminate the
Options in the event that the purchaser is in material default under the
agreement.
In addition to a ninety-day due diligence period, there are certain
contingencies to the closing of the purchase of the Hospital Site that
depend upon governmental actions to obtain certain necessary entitlements
to construct the Medical Facility. Such contingencies must be satisfied on
or before September 30, 2011, or the agreement will automatically terminate
unless previously extended in writing by agreement of the parties. While
the Company and the purchaser have agreed to cooperate to satisfy such
contingencies as further set forth in the agreement, such contingencies are
to some degree beyond the control of the parties and there can be no
assurance that such contingencies will be satisfied or that the closing of
such sale will occur.
(3) MORTGAGE AND OTHER NOTES PAYABLE
A subsidiary of Kaanapali Land ("Holder") held a mortgage note that
was previously secured by Waikele Golf Course in the original principal
amount of $7,178. Interest on the principal balance accrued at an
adjustable rate of prime plus 1%. The principal and accrued interest,
which were prepayable, were due March 1, 2015. As a result of the sale of
the Waikele Golf Course, the outstanding principal and accrued interest was
reduced pursuant to a payment of $9,300 towards the note and accrued
interest and the mortgage security was released. The note was satisfied by
the payment of $684 to such subsidiary from a portion of the proceeds from
the Company's sale of the promissory note provided by the purchaser of the
Waikele Golf Course to a third party purchaser, as described above. The
note had an outstanding principal and accrued interest balance of $672 at
December 31, 2009. The note had been eliminated in the consolidated
financial statements because the obligor and maker are consolidated
subsidiaries of Kaanapali Land.
Certain subsidiaries of Kaanapali Land are jointly indebted to
Kaanapali Land pursuant to a certain Secured Promissory Note in the
principal amount of $70,000 dated November 14, 2002. Such note matures on
October 31, 2011, had an outstanding balance of principal and accrued
interest as of September 30, 2010 and December 31, 2009 of approximately
$83,400 and $81,600, respectively, and carries an interest rate of 3.04%
compounded semi-annually. The note, which is prepayable, is secured by
substantially all of the remaining real property owned by such
subsidiaries, pursuant to a certain Mortgage, Security Agreement and
Financing Statement, dated as of November 14, 2002 and placed on record in
December 2002. The note has been eliminated in the consolidated financial
statements because the obligors are consolidated subsidiaries of Kaanapali
Land.
(4) EMPLOYEE BENEFIT PLANS
(a) PENSION PLANS
The Company participates in a defined benefit pension plan that
covers substantially all its eligible employees. The pension plan is
sponsored and maintained by Kaanapali Land in conjunction with other plans
providing benefits to employees of Kaanapali Land and its affiliates.
During late 2009 the Company received final approval from the
Internal Revenue Service which allowed the Company to transfer the residual
assets of the Retirement Plan for Employees of AMFAC Inc. ("Retirement
Plan") of $5,800 to the Pension Plan. The Retirement Plan was terminated
December 31, 1994. Plan liabilities were settled and plan assets were
subsequently distributed in 1995. Residual Retirement Plan assets were
transferred to the Pension Plan in 2009. The value of the Retirement Plan
transfer has been reflected in accumulated other comprehensive income, net
of tax (based upon recording the funded status of the plan at year end) on
the Company's consolidated balance sheet.
The components of the net periodic pension benefit (credit), included
in selling, general and administrative in the consolidated statements of
operations for the three and nine months ended September 30, 2010 and 2009
are as follows:
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------- -------------------
2010 2009 2010 2009
-------- -------- -------- --------
Service cost. . . . . . . $ 150 6 450 18
Interest cost . . . . . . 575 592 1,725 1,776
Expected return on
plan assets . . . . . . (1,100) (1,130) (3,300) (3,390)
Recognized net actuarial
(gain) loss . . . . . . 225 332 675 996
-------- -------- -------- --------
Net periodic pension
credit. . . . . . . . . $ (150) (200) (450) (600)
======== ======== ======== ========
(b) RETIREE HEALTH AND LIFE INSURANCE BENEFITS
In addition to providing pension benefits, a subsidiary of KLC Land
had been providing certain healthcare and life insurance benefits to
certain eligible retired employees. As described below, the subsidiary of
KLC Land discontinued providing such benefits effective June 2010. The
postretirement healthcare plan was contributory and contained cost-sharing
features such as deductibles and copayments. The postretirement life
insurance plan was non-contributory.
Net periodic postretirement benefit cost included in selling,
general, and administrative in the consolidated statements of operations
for the three and nine months ended September 30, 2010 and 2009 includes
the following components:
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------- -------------------
2010 2009 2010 2009
-------- -------- -------- --------
Interest cost . . . . . . $ -- 25 46 75
Amortization of net gain. -- (5) (12) (15)
-------- -------- -------- --------
Net periodic post-
retirement benefit
cost. . . . . . . . . . $ -- 20 34 60
======== ======== ======== ========
The Company recognizes the over funded or under funded status of its
employee benefit plans as an asset or liability in its statement of
financial position and recognizes changes in its funded status in the year
in which the changes occur through comprehensive income. Included in
accumulated other comprehensive income at December 31, 2009 are the
following amounts that have not yet been recognized in net periodic
pension/post-retirement cost: unrecognized prior service costs of $2 ($1
net of tax) and unrecognized actuarial loss of $9,658 ($5,892 net of tax).
The prior service cost and actuarial loss included in accumulated other
comprehensive income and recognized in net periodic pension/post-retirement
cost for the period ending September 30, 2010 are $1 and $671 ($409 net of
tax), respectively.
Effective June 2010, the subsidiary of KLC Land discontinued
providing retiree health and life insurance benefits to retired employees.
The subsidiary paid a onetime lump sum cash payment to the participants
totaling approximately $85. The Company recognized a settlement gain of
approximately $1,928, recorded in selling, general and administrative,
which included recognition of approximately $192 remaining in accumulated
other comprehensive income relating to the post retirement benefit plan and
approximately $1,736 from the reversal of the accrued benefit obligation.
The Company maintains a nonqualified deferred compensation
arrangement (the "Rabbi Trust") which provides certain former directors of
Amfac and their spouses with pension benefits. The Rabbi Trust invests in
marketable securities and cash equivalents. The deferred compensation
liability of approximately $1,308 represented in the Rabbi Trust and assets
funding such deferred compensation liability of approximately $1,126 are
consolidated in the Company's balance sheet.
(5) STOCK-BASED COMPENSATION
On April 15, 2008, the Company entered into an agreement with Stephen
Lovelette ("Lovelette"), an executive vice president of the Company in
charge of the Company's development activities, whereby the Company agreed
to issue up to 52,000 shares of a new class of common shares (the "Class C
Shares") in consideration for his services to the Company. The Class C
Shares have the same rights as the Shares except that the Class C Shares
will not participate in any distributions until the holders of the Shares
have received aggregate distributions equal to $19 per Share, subject to
customary antidilution adjustments. The Class C Shares became 50% vested
on April 15, 2008, an additional 25% vested on December 31, 2008. The
remaining 25% became vested on December 31, 2009.
(6) INCOME TAXES
The Company uses a recognition threshold and measurement attribute
for the financial statement recognition and measurement of a tax position
taken or expected to be taken in a tax return. The Company's gross
unrecognized tax benefits total approximately $2,000 at September 30, 2010.
The Company's continuing practice is to recognize interest and penalties
related to income tax matters in income tax expense. Consolidated Balance
Sheets at September 30, 2010 and December 31, 2009 include $93 and $68,
respectively, accrued for the potential payment of interest and penalties.
Federal tax return examinations have been completed for all years
through 2005. The statutes of limitations with respect to the Company's
taxes for 2007 and subsequent years remain open. The Company believes
adequate provisions for income tax have been recorded for all years,
although there can be no assurance that such provisions will be adequate.
To the extent that there is a shortfall, any such shortfall for which the
Company could be liable could be material.
The Company has recorded a valuation allowance against any tax
benefit or deferred tax asset generated through September 30, 2010.
(7) COMMITMENTS AND CONTINGENCIES
At September 30, 2010, the Company's principal contractual
obligations are approximately $26 for the unpaid retention related to the
land improvements in conjunction with Phase I of the Kaanapali Coffee Farms
project.
Material legal proceedings of the Company are described below.
Unless otherwise noted, the parties adverse to the Company in the legal
proceedings described below have not made a claim for damages in a
liquidated amount and/or the Company believes that it would be speculative
to attempt to determine the Company's exposure relative thereto, and as a
consequence believes that an estimate of the range of potential loss cannot
be made.
As a result of an administrative order issued to Oahu Sugar by the
HDOH, Order No. CH 98-001, dated January 27, 1998, Oahu Sugar engaged in
environmental site assessment of lands it leased from the U.S. Navy and
located on the Waipio Peninsula. Oahu Sugar submitted a Remedial
Investigation Report to the HDOH. The HDOH provided comments that
indicated that additional testing may be required. Oahu Sugar responded to
these comments with additional information. On January 9, 2004, EPA issued
a request to Oahu Sugar seeking information related to the actual or
threatened release of hazardous substances, pollutants and contaminants at
the Waipio Peninsula portion of the Pearl Harbor Naval Complex National
Priorities List Superfund Site. The request sought, among other things,
information relating to the ability of Oahu Sugar to pay for or perform a
clean up of the land formerly occupied by Oahu Sugar. Oahu Sugar responded
to the information requests and had notified both the Navy and the EPA that
while it had some modest remaining cash that it could contribute to further
investigation and remediation efforts in connection with an overall
settlement of the outstanding claims, Oahu Sugar was substantially without
assets and would be unable to make a significant contribution to such an
effort. Attempts at negotiating such a settlement were fruitless and Oahu
Sugar received an order from EPA in March 2005 that purported to require
certain testing and remediation of the site. As Oahu Sugar was
substantially without assets, the pursuit of any action, informational,
enforcement, or otherwise, would have had a material adverse effect on the
financial condition of Oahu Sugar.
Therefore, as a result of the pursuit of further action by the HDOH
and EPA as described above and the immediate material adverse effect that
the actions had on the financial condition of Oahu Sugar, Oahu Sugar filed
with the United States Bankruptcy Court, Northern District of Illinois,
Eastern Division its voluntary petition for liquidation under Chapter 7 of
Title 11, United States Bankruptcy Code. Such filing is not expected to
have a material adverse effect on the Company as Oahu Sugar was
substantially without assets at the time of the filing. While it is not
believed that any other affiliates have any responsibility for the debts of
Oahu Sugar, the EPA has indicated that it intends to make a claim against
Kaanapali Land as further described below, and therefore, there can be no
assurance that the Company will not incur significant costs in connection
with such claim.
The deadline for filing proofs of claim against Oahu Sugar with the
bankruptcy court passed in April 2006. Prior to the deadline, Kaanapali
Land, on behalf of itself and certain subsidiaries, filed claims that
aggregated approximately $224,000, primarily relating to unpaid guarantee
obligations made by Oahu Sugar that were assigned to Kaanapali Land
pursuant to the Plan on the Plan Effective Date. In addition, the EPA and
the U.S. Navy filed a joint proof of claim that seeks to recover certain
environmental response costs relative to the Waipio Peninsula site
discussed above. The proof of claim contained a demand for previously
spent costs in the amount of approximately $260, and additional anticipated
response costs of between approximately $2,760 and $11,450. No specific
justification of these costs, or what they are purported to represent, was
included in the EPA/Navy proof of claim. Due to the insignificant amount
of assets remaining in the debtor's estate, it is unclear whether the
United States Trustee who has taken control of Oahu Sugar will take any
action to contest the EPA/Navy claim, or how it will reconcile such claim
for the purpose of distributing any remaining assets of Oahu Sugar.
EPA has sent three requests for information to Kaanapali Land
regarding, among other things, Kaanapali Land's organization and
relationship, if any, to entities that may have, historically, operated on
the site and with respect to operations conducted on the site. Kaanapali
Land responded to these requests for information. By letter dated
February 7, 2007, pursuant to an allegation that Kaanapali Land is a
successor to Oahu Sugar Company, Limited, a company that operated at the
site prior to 1961 ("Old Oahu"), EPA advised Kaanapali that it believes it
is authorized by CERCLA to amend the existing Unilateral Administrative
Order against Oahu Sugar Company, LLC, for the clean up of the site to
include Kaanapali Land as an additional respondent. The purported basis for
the EPA's position is that Kaanapali Land, by virtue of certain corporate
actions, is jointly and severally responsible for the performance of the
response actions, including, without limitation, clean-up at the site. No
such amendment has taken place as of the date hereof. Instead, after a
series of discussions between Kaanapali and the EPA, on or about
September 30, 2009, the EPA issued a Unilateral Administrative Order to
Kaanapali Land for the performance of work in support of a removal action
at the former Oahu Sugar pesticide mixing site located on Waipio peninsula.
The work consists of the performance of soil and groundwater sampling and
analysis, a topographic survey, and the preparation of an engineering
evaluation and cost analysis of potential removal actions to abate an
alleged "imminent and substantial endangerment" to public health, welfare
or the environment. The order appears to be further predicated primarily
on the alleged connection of Kaanapali Land to Old Oahu and its activities
on the site. Kaanapali Land is currently performing work required by the
order while reserving its right to contest liability regarding the site.
With regard to liability for the site, Kaanapali Land believes that its
liability, if any, should relate solely to a portion of the period of
operation of Old Oahu at the site, although in some circumstances CERLCLA
apparently permits imposition of joint and several liability, which can
exceed a responsible party's equitable share. Kaanapali Land believes that
the U.S. Navy bears substantial liability for the site by virtue of its
ownership of the site throughout the entire relevant period, both as
landlord under its various leases with Oahu Sugar and Old Oahu and by
operating and intensively utilizing the site directly during a period when
no lease was in force. The Company believes that the cost of the work as
set forth in the order will not be material to the Company as a whole;
however, in the event that the EPA were to issue an order requiring
remediation of the site, there can be no assurances that the cost of said
remediation would not ultimately have a material adverse effect on the
Company. In addition, if there is litigation regarding the site, there can
be no assurance that the cost of such litigation will not be material or
that such litigation will result in a judgment in favor of the Company.
Federal tax return examinations have been completed for all years
through 2005. The statutes of limitations with respect to the Company's
tax returns for 2007 and subsequent years remain open. The Company
believes adequate provisions for income taxes have been recorded for all
years, although there can be no assurance that such provisions will be
adequate. To the extent that there is a shortfall, any such shortfall for
which the Company could be liable could be material.
Kaanapali Land, as successor by merger to other entities, and D/C
have been named as defendants in personal injury actions allegedly based on
exposure to asbestos. While there have been only a few such cases that
name Kaanapali Land, there are a substantial number of cases that are
pending against D/C on the U.S. mainland (primarily in California). Cases
against Kaanapali Land are allegedly based on its prior business operations
in Hawaii and cases against D/C are allegedly based on sale of asbestos-
containing products by D/C's prior distribution business operations
primarily in California. Each entity defending these cases believes that
it has meritorious defenses against these actions, but can give no
assurances as to the ultimate outcome of these cases. The defense of these
cases has had a material adverse effect on the financial condition of D/C
as it has been forced to file a voluntary petition for liquidation as
discussed below. Kaanapali Land does not believe that it has liability,
directly or indirectly, for D/C's obligations in those cases. Kaanapali
Land does not presently believe that the cases in which it is named will
result in any material liability to Kaanapali Land; however, there can be
no assurance in this regard.
On February 15, 2005, D/C was served with a lawsuit entitled American
& Foreign Insurance Company v. D/C Distribution and Amfac Corporation, Case
No. 04433669 filed in the Superior Court of the State of California for the
County of San Francisco, Central Justice Center. No other purported party
was served. In the eight-count complaint for declaratory relief,
reimbursement and recoupment of unspecified amounts, costs and for such
other relief as the court might grant, plaintiff alleged that it is an
insurance company to whom D/C tendered for defense and indemnity various
personal injury lawsuits allegedly based on exposure to asbestos containing
products. Plaintiff alleged that because none of the parties have been
able to produce a copy of the policy or policies in question, a judicial
determination of the material terms of the missing policy or policies is
needed. Plaintiff sought, among other things, a declaration: of the
material terms, rights, and obligations of the parties under the terms of
the policy or policies; that the policies were exhausted; that plaintiff is
not obligated to reimburse D/C for its attorneys' fees in that the amounts
of attorneys' fees incurred by D/C have been incurred unreasonably; that
plaintiff was entitled to recoupment and reimbursement of some or all of
the amounts it has paid for defense and/or indemnity; and that D/C breached
its obligation of cooperation with plaintiff. D/C filed an answer and an
amended cross-claim. D/C believed that it had meritorious defenses and
positions, and intended to vigorously defend. In addition, D/C believed
that it was entitled to amounts from plaintiffs for reimbursement and
recoupment of amounts expended by D/C on the lawsuits previously tendered.
In order to fund such action and its other ongoing obligations while such
lawsuit continued, D/C entered into a Loan Agreement and Security Agreement
with Kaanapali Land, in August 2006, whereby Kaanapali Land provided
certain advances against a promissory note delivered by D/C in return for a
security interest in any D/C insurance policy at issue in this lawsuit. In
June 2007, the parties settled this lawsuit with payment by plaintiffs in
the amount of $1,618. Such settlement amount was paid to Kaanapali Land in
partial satisfaction of the secured indebtedness noted above.
Because D/C was substantially without assets and was unable to obtain
additional sources of capital to satisfy its liabilities, D/C filed with
the United States Bankruptcy Court, Northern District of Illinois, its
voluntary petition for liquidation under Chapter 7 of Title 11, United
States Bankruptcy Code during July 2007, Case No. 07-12776. Such filing is
not expected to have a material adverse effect on the Company as D/C was
substantially without assets at the time of the filing. The deadline for
filing proofs of claim against D/C with the bankruptcy court passed in
October 2008. Prior to the deadline, Kaanapali Land filed claims that
aggregated approximately $26,800, relating to both secured and unsecured
intercompany debts owed by D/C to Kaanapali Land. In addition, a personal
injury law firm based in San Francisco that represents clients with
asbestos-related claims, filed proofs of claim on behalf of approximately
700 claimants. While it is not likely that a significant number of these
claimants have a claim against D/C that could withstand a vigorous defense,
it is unknown how the trustee will deal with these claims. It is not
expected, however, that the Company will receive any material additional
amounts in the liquidation of D/C.
The Company received notice from the Hawaii Department of Land and
Natural Resources ("DLNR") that it would inspect all significant dams and
reservoirs in Hawaii, including those maintained by the Company on Maui in
connection with its agricultural operations. Inspections were performed in
April and October 2006 and again in March 2008 and July 2009. To date, the
DLNR has cited certain maintenance deficiencies concerning two of the
Company's reservoirs, consisting primarily of overgrowth of vegetation that
makes inspection difficult and could degrade the integrity of reservoir
slopes and impact drainage. The DLNR has required the vegetation clean-up
as well as the Company's plan for future maintenance, inspections and
emergency response. Revised versions of the required plans were submitted
to DLNR in December 2006. In October 2009, DLNR delivered an inspection
report for one of these reservoirs to the Company which acknowledged the
work done to date but requested still more remediated action, and DLNR
issued an amended report in March 2010. A final report on one such
reservoir was received in August 2010 which essentially restated the March
2010 report for such reservoir. The Company has completed the majority of
the work required by such report and continues its analysis with respect to
the remaining items. In addition, the Company has submitted revisions to
its emergency action plans for both reservoirs in accordance with revised
DLNR requirements.
On October 15, 2006, a significant earthquake occurred that was felt
in most parts of the state. As a consequence of such earthquake, the DLNR,
in conjunction with the U.S. Army Corps of Engineers, has inspected each
reservoir. In September 2007, the Company received correspondence from
DLNR that it preliminarily intended to categorize each of the reservoirs as
"high hazard" under a new statute recently passed by the State of Hawaii
concerning dam and reservoir safety. This classification, which bears upon
future government oversight and reporting requirements, may increase the
future cost of managing and maintaining these reservoirs in a material
manner. The Company does not believe that this classification is warranted
for either of these reservoirs and has initiated a dialogue with DLNR in
that regard. At this time, it is unknown what the final classification
assigned to these reservoirs will be or to what extent such classification
will impact the future use and maintenance cost of these assets. In April
2008 the Company received further correspondence from DLNR that included
the assessment by their consultants of the potential losses that result
from the failure of these reservoirs. In April 2009, the Company filed a
written response to DLNR to correct certain factual errors in its report
and to request further analysis on whether such "high hazard"
classifications are warranted. The Company and DLNR continue to engage in
dialogue concerning these matters (which have included further site visits
by DLNR personnel).
In addition to the foregoing, the Company has received notice from
DLNR that it intended to decommission a reservoir that is contained partly
on DLNR land and partly on land owned by an unaffiliated third party, that
was previously sold by the Company to such third party. Upon such sale,
the Company reserved the right to use such reservoir and maintain it to the
extent the Company determined to do so in its discretion. While the
Company continues to use such reservoir, it has disclaimed any
responsibility for the costs of rehabilitation and/or decommissioning and
has determined not to expend funds there. DLNR has notified the third
party owner that it may have liability for a portion of such
decommissioning costs and such owner has notified DLNR that (1) it does not
support the decommissioning of such reservoir and (2) nevertheless, the
Company should be responsible for same as the operator. While the Company
believes that it has defenses to any claims that may be made against it for
such costs, there can be no assurance that such defenses will be successful
or that the decommissioning of such reservoir will not have an adverse
impact on the Company's other water rights and distributions operations.
The Company understands the DLNR and such third-party owner have reopened
talks whereby the reservoir may be rehabilitated and reconfigured instead
of decommissioned but the Company so far has not participated in such talks
in any material way.
Other than as described above, the Company is not involved in any
material pending legal proceedings, other than ordinary routine litigation
incidental to its business. The Company and/or certain of its affiliates
have been named as defendants in several pending lawsuits. While it is
impossible to predict the outcome of such routine litigation that is now
pending (or threatened) and for which the potential liability is not
covered by insurance, the Company is of the opinion that the ultimate
liability from any of this litigation will not materially adversely affect
the Company's consolidated results of operations or its financial
condition.
(8) CALCULATION OF NET INCOME (LOSS) PER SHARE
The following tables set forth the computation of net income (loss)
per share - basic and diluted:
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------- -------------------
2010 2009 2010 2009
-------- -------- -------- --------
(Amounts in thousands except per share amounts)
NUMERATOR:
Net income (loss) . . . . $ (3,383) (722) (4,282) (2,298)
======== ======== ======== ========
DENOMINATOR:
Number of weighted
average shares
outstanding
- basic (a)
and diluted . . . . . 1,845 1,832 1,845 1,832
======== ======== ======== ========
(a) As the Company reported a loss from continuing operations for
the three and nine months ended September 30, 2009, the Company has
excluded the unissued Class C shares from the corresponding earnings per
share calculations for these periods as the effect would be anti-dilutive.
(9) BUSINESS SEGMENT INFORMATION
As described in Note 1, the Company operates in two business
segments. Total revenues and operating profit by business segment are
presented in the tables below.
Total revenues by business segment includes primarily (i) sales, all
of which are from unaffiliated customers and (ii) interest income that is
earned from outside sources on assets which are included in the individual
industry segment's identifiable assets, as well as corporate assets.
Operating income (loss) is comprised of total revenue less operating
expenses. In computing operating income (loss), none of the following
items have been added or deducted: general corporate revenues and
expenses, interest expense and income taxes.
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------- -------------------
2010 2009 2010 2009
-------- -------- -------- --------
Revenues:
Property. . . . . . . . $ 503 255 1,029 687
Agriculture . . . . . . 625 752 1,723 1,751
Corporate . . . . . . . 12 (134) 606 413
-------- -------- -------- --------
$ 1,140 873 3,358 2,851
======== ======== ======== ========
Operating income (loss):
Property. . . . . . . . $ (2,644) (1,500) (3,362) (1,884)
Agriculture . . . . . . (45) 369 1,327 (432)
-------- -------- -------- --------
Operating income (loss) . (2,689) (1,131) (2,035) (2,316)
Corporate . . . . . . . . (691) (83) (2,228) (1,458)
-------- -------- -------- --------
Operating income (loss)
from continuing
operations before
income taxes. . . . . . $ (3,380) (1,214) (4,263) (3,774)
======== ======== ======== ========
PART I. FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
General
In addition to historical information, this Report contains forward-
looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995. These statements are based on management's current
expectations about its businesses and the markets in which the Company
operates. Such forward-looking statements are not guarantees of future
performance and involve known and unknown risks, uncertainties or other
factors which may cause actual results, performance or achievements of the
Company to be materially different from any future results, performance or
achievements expressed or implied by such forward-looking statements.
Actual operating results may be affected by various factors including,
without limitation, changes in international, national and Hawaiian
economic conditions, competitive market conditions, uncertainties and costs
related to the imposition of conditions on receipt of governmental
approvals and costs of material and labor, and actual versus projected
timing of events all of which may cause such actual results to differ
materially from what is expressed or forecast in this report.
Certain subsidiaries of Kaanapali Land are jointly indebted to
Kaanapali Land pursuant to a certain Secured Promissory Note in the
principal amount of $70 million, dated November 14, 2002. Such note
matures on October 31, 2011, had an outstanding balance of principal and
accrued interest as of September 30, 2010 and December 31, 2009 of
approximately $83.4 million and $81.6 million, respectively, and carries an
interest rate of 3.04% compounded semi-annually. The note, which is
prepayable, is secured by substantially all of the remaining real property
owned by such subsidiaries, pursuant to a certain Mortgage, Security
Agreement and Financing Statement, dated as of November 14, 2002 and placed
on record in December 2002. The note has been eliminated in the
consolidated financial statements because the obligors are consolidated
subsidiaries of Kaanapali Land.
In addition to such Secured Promissory Note, certain other
subsidiaries of Kaanapali Land continue to be liable to Kaanapali Land
under certain guarantees (the "Guarantees") that they had previously
provided to support certain Senior Indebtedness (as defined in the Plan)
and the Certificate of Land Appreciation Notes ("COLA Notes") formerly
issued by Amfac/JMB Hawaii, Inc. (as predecessor to KLC Land). Although
such Senior Indebtedness and COLA Notes were discharged under the Plan, the
Guarantees of the Non-Debtor KLC Subsidiaries were not. Thus, to the
extent that the holders of the Senior Indebtedness and COLA Notes did not
receive payment on the outstanding balance thereof from distributions made
under the Plan, the remaining amounts due thereunder remain obligations of
the Non-Debtor KLC Subsidiaries under the Guarantees. Under the Plan, the
obligations of the Non-Debtor KLC Subsidiaries under such Guarantees were
assigned by the holders of the Senior Indebtedness and COLA Notes to
Kaanapali Land on the Plan Effective Date. Kaanapali Land has notified
each of the Non-Debtor KLC Subsidiaries that are liable under such
Guarantees that their respective guarantee obligations are due and owing
and that Kaanapali Land reserves all of its rights and remedies in such
regard. Given the financial condition of such Non-Debtor KLC Subsidiaries,
however, it is unlikely that Kaanapali Land will realize payments on such
Guarantees that are more than a small percentage of the total amounts
outstanding thereunder or that in the aggregate will generate any material
proceeds to the Company. Nevertheless, Kaanapali Land has submitted a
claim in the Chapter 7 bankruptcy proceeding of Oahu Sugar in order that it
may recover the assets remaining in the bankruptcy estate, if any, that
become available for creditors of Oahu Sugar. Any amounts so received
would not be material to the Company. The Company has commenced
discussions with the United States (the only other claimant in the Oahu
Sugar bankruptcy) concerning the potential for dividing such remaining
assets and closing such bankruptcy case. There can be no assurance that
such discussions will lead to a settlement acceptable to the Company.
These Guarantee obligations have been eliminated in the consolidated
financial statements because the obligors are consolidated subsidiaries of
Kaanapali Land, which is now the sole obligee thereunder.
Those persons and entities that were not affiliated with the
predecessor of Kaanapali Land and were holders of COLAs or the date that
the Plan was confirmed by the Bankruptcy Court, and their successors in
interest, represent approximately 9% of the ownership of the Company.
The Company had cash and cash equivalents of approximately $7 million
and $16 million, as of September 30, 2010 and December 31, 2009,
respectively, which is available for, among other things, working capital
requirements, including future operating expenses in each of the
Agriculture and Property segments, and the Company's expenditures for
engineering, planning, regulatory and development costs, drainage, water
storage and distribution, utilities, environmental remediation costs on
existing and former properties, potential liabilities resulting from tax
audits, and existing and possible future litigation.
Effective June 2010, a subsidiary of KLC Land discontinued providing
retiree health and life insurance benefits to certain eligible retired
employees. The subsidiary paid a onetime lump sum cash payment to the
participants totaling approximately $85 thousand. The Company recognized a
settlement gain of approximately $1.9 million, which included recognition
of approximately $192 thousand remaining in accumulated other comprehensive
income relating to the post retirement benefit plan and approximately $1.7
million from the reversal of the accrued benefit obligation.
The primary business of Kaanapali Land is the investment in and
development of the Company's assets on the Island of Maui. The various
development plans will take many years at significant expense to fully
implement. A small portion of such anticipated expenses are currently
subject to contractual commitments, however, significant additional costs
may be incurred. Proceeds from land sales are the Company's only source of
significant cash proceeds and the Company's ability to meet its liquidity
needs is dependent on the timing and amount of such proceeds. The
international credit crisis, which has resulted in both national and global
economic downturns, has had a significant adverse impact on the Hawaiian
economy during the second half of 2008 and continuing throughout 2010. The
result is substantial market uncertainty in the housing market and
declining home values. These factors have had a material adverse effect on
the Company's ability to market its residential lots and may, if they
persist, cause the Company to defer development opportunities further into
the future.
During 2008, the Company sold the Waikele Golf Course. The Company
received a promissory note in the sale in the original amount of $13.3
million and a mortgage secured by the property, along with corporate and
personal guarantees from the principal of the purchaser and an affiliate.
The promissory note originally required monthly interest only payments of
7% per annum and was due May 12, 2009. Certain seller representations and
warranties existed for one year after the date of sale. The Company
entered into a note modification agreement with the purchaser on May 12,
2009 and subsequent note modification agreements on May 19, 2009, June 16,
2009 and November 12, 2009. The note modifications allowed the purchaser
to defer payment of such promissory note until May 12, 2010; provided,
however, that the purchaser was required by such agreement to make
principal and interest payments in advance of maturity (before certain
deductions for commissions and other costs) of $200 thousand on May 12,
2009, $50 thousand on May 20, 2009, $100 thousand on June 16, 2009, $100
thousand on June 23, 2009, $100 thousand on September 12, 2009 and $1
million on November 12, 2009. The note modifications increased the
interest rate on the note to 8% per annum beginning July 12, 2009 and
require prepayment of interest through January 12, 2010 on November 12,
2009.
Pursuant to the note modification agreement dated November 12, 2009
("Effective Date"), the purchaser owed the Company a payment of
approximately $1.3 million of principal and interest on the Effective Date.
The purchaser paid $253 thousand on the Effective Date and the remaining
amount due was not paid. Pursuant to two letters dated November 30, 2009
and December 16, 2009 the guarantors of the promissory note were notified
that the promissory note was in default. On January 13, 2010, the Company
made a forbearance offer that was accepted by the purchaser. The
forbearance offer stated that the Company would accrue interest at the
default rate of 12% per annum for the period November 13, 2009 through and
including January 12, 2010. Commencing as of January 13, 2010, interest
accrued at the rate of 10% per annum. Beginning February 12, 2010, the
purchaser was required to make monthly interest payments at a rate of 8%
per annum on the unpaid balance of the note. The interest of 2% not
included in the monthly pay rate was deferred until the earlier of payment
of the promissory note in full or May 12, 2010. The entire $253 thousand
the purchaser paid on November 12, 2009, along with $103 thousand the
purchaser paid on January 20, 2010, were applied to the accrued interest at
the default rate noted above. On March 20, 2010 the Company made a further
offer of forbearance of up to 3% interest per month in the event the
purchaser should choose to devote said amounts to current maintenance of
the golf course in accordance with the terms of the offer including the
recommendations of a specified consultant ("offered maintenance deferral").
Under the offered maintenance deferral, said interest was to be paid on the
earlier of the payment of the note or May 12, 2010. The purchaser accepted
this forbearance offer. Each forbearance offer by which the Company agreed
to forebear from exercising its remedies under the Note, was subject to
certain conditions apart from the interim payment requirements including,
but not limited to the absence of additional defaults under the note and
underlying security documents. All such agreements to defer interest and
forebear from exercising remedies were to expire on the extended maturity
date of the promissory note, May 12, 2010.
On May 5, 2010, the Company entered into an agreement with an
unaffiliated third party whereby the Company agreed to sell the promissory
note and assign the first mortgage and recourse guarantees (and other
security documents) to such third party, on a non-recourse basis, for an
aggregate purchase price of $12.5 million. The purchase price, which
includes all principal and accrued and unpaid interest on such promissory
note (including, but not limited to, the amounts previously deferred by the
Company), approximated the Company's net carrying value of the note. On
May 6, 2010, such transaction closed and the Company received the purchase
price. The Company recognized a gain of $138 thousand, included in
interest and other income, from the sale of the note.
A subsidiary of Kaanapali Land ("Holder") held a mortgage loan that
was previously secured by Waikele Golf Course. Interest on the principal
balance accrued at an adjustable rate of prime plus 1%. The principal and
accrued interest, which were prepayable, were due March 1, 2015. As a
result of the sale of the Waikele Golf Course, the outstanding principal
and accrued interest was reduced pursuant to a payment of $9.3 million
towards the note and accrued interest and the mortgage security was
released. The note was satisfied by the payment of $684 thousand to such
subsidiary from a portion of the proceeds from the Company's sale of the
promissory note provided by the purchaser of the Waikele Golf Course, to a
third party purchaser as described above. The note had an outstanding
principal and accrued interest balance of approximately $672 thousand at
December 31, 2009. The note had been eliminated in the consolidated
financial statements because the obligor and maker are consolidated
subsidiaries of Kaanapali Land.
The Company's continuing operations have in recent periods been
primarily reliant upon the net proceeds of sales of developed and
undeveloped land parcels and the recent sale of the promissory note secured
by the golf course.
The Company holds two promissory notes received in conjunction with
the 2007 sale of two lots at the Kaanapali Coffee Farms in the amount of
$692 thousand and $737 thousand. The promissory notes have maturity dates
of October 2009 and November 2010, respectively. The Company is under
contract for the sale of one additional lot that is scheduled to close no
later than December 2010. The note due in October 2009 was not paid on its
scheduled maturity date. Such note is secured by a mortgage on the
associated lot that is subordinated to a purchase money mortgage held by a
third-party lender. The Company has notified the purchaser of such lot
that the subordinated note is in default and default interest has begun
accruing thereon. The Company and such purchaser are continuing to discuss
a potential note modification, but there can be no assurance that such a
modification will be negotiated or the terms thereof. The Company is
currently negotiating an extension of the note due November 2010, which was
not paid on its scheduled maturity date, with the purchaser of the
associated lot. Such note is secured by a first mortgage on such lot. In
the event that the Company and such purchasers are unable to agree to
modification of the terms of such notes, the Company will consider its
available remedies, including an action for foreclosure. The allowance for
doubtful accounts had a balance of $762 thousand and $710 thousand at
September 30, 2010 and December 31, 2009, respectively.
Effective September 30, 2010, the Company entered an agreement with
an unaffiliated third party to sell an approximately 14.990 acre parcel of
property (the "Hospital Site") within the Company's Kaanapali 2020
development area for the construction of a hospital and acute care facility
and associated improvements (the "Medical Center"). The Hospital Site
consists of a portion of a parcel commonly known as the Pu'ukoli'i
Triangle, which had formerly been granted development rights for the
construction of market and affordable housing. The purchase price for the
Hospital Site is $3,300 of which $100 has been provided in the form of a
cash deposit that is not refundable after the close of due diligence except
in certain circumstances. In addition to the Hospital Site, the agreement
provides the purchaser with two separate options (the "Options") to
purchase two additional adjacent parcels of property of approximately 30
acres each (the "Option Parcels"), for a purchase price of $220 per acre,
which Options may only be exercised in the event that the purchaser closes
on the purchase of the Hospital Site. The Option Parcels must also be used
for medical and health-related purposes as set forth in the agreement.
Various provisions of the agreement specify responsibilities for the
granting of easements by the Company and the construction of various
infrastructure improvements by the parties.
Upon closing, the purchaser is required to make an additional payment
of $1,700 to purchase the Options, which amount is creditable against the
purchase price of each of the Option Parcels in accordance with the amounts
allocated to each as set forth in the agreement. The Option for the first
Option Parcel must be exercised within three years after the commencement
of the subdivision of such site by the Company (which shall be a date that
is two years after the closing of the purchase of the Hospital Site, or
such earlier date as the purchaser may elect). The purchaser has an
additional year to exercise the second Option, so long as the purchaser has
previously exercised the first Option. The Company may terminate the
Options in the event that the purchaser is in material default under the
agreement.
In addition to a ninety-day due diligence period, there are certain
contingencies to the closing of the purchase of the Hospital Site that
depend upon governmental actions to obtain certain necessary entitlements
to construct the Medical Facility. Such contingencies must be satisfied on
or before September 30, 2011, or the agreement will automatically terminate
unless previously extended in writing by agreement of the parties. While
the Company and the purchaser have agreed to cooperate to satisfy such
contingencies as further set forth in the agreement, such contingencies are
to some degree beyond the control of the parties and there can be no
assurance that such contingencies will be satisfied or that the closing of
such sale will occur.
Although the Company does not currently believe that it has
significant liquidity problems over the near term, should the Company be
unable to satisfy its liquidity requirements from its existing resources
and future property sales, it will likely pursue alternate financing
arrangements. However it cannot be determined at this time what, if any,
financing alternatives may be available and at what cost.
RESULTS OF OPERATIONS
Reference is made to the footnotes to the financial statements for
additional discussion of items addressing comparability between years.
The decrease in cash and cash equivalents and related increase in
investments in securities at September 30, 2010 as compared to December 31,
2009 is primarily the result of the purchase of U.S. Government obligations
maturing in December 2010 and June 2011 using proceeds received from the
sale of the golf course note receivable.
Property, net decreased and cost of sales increased as of
September 30, 2010 primarily due to a reduction of the value of inventory
of land held for sale to approximate the lower of carrying value or fair
value less cost to sell.
The decrease in note receivable is due to the sale of the promissory
note on the Waikele Golf Course during the second quarter of 2010.
The decrease in accounts payable and accrued expenses at
September 30, 2010 as compared to December 31, 2009 is due to the payment
of certain outstanding payables during the third quarter of 2010.
The decrease in accrued benefit obligation is due to the
discontinuance of the retiree health and life insurance benefits to retired
employees.
Selling, general and administrative expenses decreased primarily due
to the discontinuance of the retiree health and life insurance benefits to
retired employees.
INFLATION
Due to the lack of significant fluctuations in the level of inflation
in recent years, inflation generally has not had a material effect on real
estate development.
In the future, high rates of inflation may adversely affect real
estate development generally because of their impact on interest rates.
High interest rates not only increase the cost of borrowed funds to the
Company, but can also have a significant effect on the affordability of
permanent mortgage financing to prospective purchasers. However, high rates
of inflation may permit the Company to increase the prices that it charges
in connection with real property sales, subject to general economic
conditions affecting the real estate industry and local market factors, and
therefore may be advantageous where property investments are not highly
leveraged with debt or where the cost of such debt has been previously
fixed.
ITEM 4. CONTROLS AND PROCEDURES
DISCLOSURE CONTROLS AND PROCEDURES. The principal executive officer
and the principal financial officer of the Company have evaluated the
effectiveness of the Company's disclosure controls and procedures as
defined in Rule 13a-15(e) of the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") as of the end of the period covered by this
report. Based on such evaluation, the principal executive officer and the
principal financial officer have concluded that the Company's disclosure
controls and procedures were effective to ensure that information required
to be disclosed was recorded, processed, summarized and reported within the
time periods specified in the applicable rules and form of the Securities
and Exchange Commission.
INTERNAL CONTROL OVER FINANCIAL REPORTING. There have not been any
changes in the Company's internal control over financial reporting (as such
term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act)
that occurred during the third quarter of 2010 that have materially
affected, or are reasonably likely to materially affect, the Company's
internal control over financial reporting.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
See Note 7 to the Condensed Consolidated Financial Statements
included in Part I of this report.
ITEM 1A. RISK FACTORS
There has been no known material changes from risk factors as
previously disclosed in the Company's Annual Report on Form 10-K for the
year ended December 31, 2009.
ITEM 6. EXHIBITS
(a) Exhibits.
3.1 Amended and Restated Limited Liability Company Agreement
of Kaanapali Land, LLC dated November 14, 2002 filed as
an exhibit to the Company's report on Form 10 filed
May 1, 2003 and hereby incorporated by reference.
3.2 Amendment to the Amended and Restated Limited Company
Agreement of Kaanapali Land, LLC dated November 14, 2002
filed as an exhibit to the Company's report on Form 8-K
filed April 21, 2008 and hereby incorporated by
reference.
10.2 Restricted Share Agreement dated April 15, 2008 is filed
as an exhibit to the Company's report on Form 10-Q filed
August 14, 2008 and hereby incorporated by reference.
10.3 Waikele Golf Course, LLC - Waikele Country Club Inc.
Property Purchase Agreement, as amended, dated
October 29, 2008 filed as an exhibit to the Company's
report on Form 10-Q (File No. 0-50273) filed on
November 14, 2008 and hereby incorporated by reference.
10.4 Note Modification Agreement and Confirmation of Guarantee
dated May 12, 2009 filed as an exhibit to the Company's
report on Form 10-Q (File No. 0-50273) filed on May 13,
2009 and hereby incorporated by reference.
10.5 Third Note Modification Agreement and Confirmation of
Guarantee dated June 16, 2009 filed as an exhibit to the
Company's report on Form 10-Q (File No. 0-50273) filed
on August 12, 2009 and hereby incorporated by reference.
10.6 Fourth Note Modification Agreement and Confirmation of
Guarantee dated November 12, 2009 filed as an exhibit to
the Company's report on Form 10-Q (File No. 0-50273)
filed on November 16, 2009 and hereby incorporated by
reference
31.1. Certification of Chief Executive Officer pursuant to
Rule 13a-14(a) is filed herewith.
31.2. Certification of Chief Financial Officer pursuant to
Rule 13a-14(a) is filed herewith.
32. Certifications pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act
of 2002 are filed herewith.
(b) No reports on Form 8-K were filed since the beginning of the
last quarter of the period covered by the report.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
KAANAPALI LAND, LLC
By: Pacific Trail Holdings, LLC
(sole member)
/s/ Gailen J. Hull
---------------------
By: Gailen J. Hull
Senior Vice President
Date: November 11, 2010