AMENDED AND SECOND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
THIS AMENDED AND SECOND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT (the "Amendment and Restatement"), dated as of
December 4, 1998, by and among MAUI LAND & PINEAPPLE COMPANY,
INC., a Hawaii corporation (the "Borrower"), BANK OF HAWAII, a
Hawaii banking corporation ("BOH"), FIRST HAWAIIAN BANK, a Hawaii
banking corporation ("FHB"), CENTRAL PACIFIC BANK, a Hawaii
banking corporation ("CPB") (BOH, FHB and CPB are each sometimes
called a "Lender" and collectively called the "Lenders"), and
BANK OF HAWAII, as Agent for the Lenders to the extent and in the
manner provided hereinbelow and in the Agency Agreement referred
to below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and Bank of America,
National Trust and Savings Association ("BOA") (the Lenders and
BOA are collectively called the "Original Lenders") and the Agent
are parties to that certain Revolving and Term Loan Agreement,
dated as of December 31, 1992, as amended by a First Loan
Modification Agreement, dated as of March 1, 1993, and
supplemented by letter agreements dated April 30, 1993 and June
24, 1993, and further amended by Second Loan Modification
Agreement, dated September 8, 1993, by a Third Loan Modification
Agreement, dated September 30, 1993, by a Fourth Loan
Modification Agreement, dated March 8, 1994, by a Fifth Loan
Modification Agreement, dated effective as of December 31, 1994,
by a Sixth Loan Modification Agreement, dated effective as of
March 31, 1995, and by a Seventh Loan Modification Agreement
dated effective as of December 31, 1995, each among the Borrower,
the Original Lenders and the Agent (as so amended and
supplemented, the "Original Loan Agreement");
WHEREAS, the Original Loan Agreement and the other "Loan
Documents" referred to therein, as respectively amended, set
forth the terms and conditions upon which the Original Lenders
(i) have made available to the Borrower the Revolving Loans in
the original aggregate principal amount of up to $40,000,000 at
any one time outstanding (subject to mandatory reduction, from
time to time, of such aggregate principal amount available) and
(ii) shall make available to the Borrower the Term Loans in an
amount up to the aggregate principal amount of the Revolving
Loans outstanding upon expiration of the Revolving Loan Period,
all as more particularly described therein;
WHEREAS, the parties hereto entered into that certain
Amended and Restated Revolving Credit and Term Loan Agreement
dated December 4, 1996, as amended by letter agreement dated
February 21, 1997, by First Loan Modification Agreement dated
December 31, 1997, and by Second Loan Modification Agreement
dated March 17, 1998 (as so amended, the "First Restatement");
WHEREAS, the Lenders having purchased the interests of BOA
under the Original Loan Agreement and the other Loan Documents
referred to therein (the "BOA Purchase"), and, contemporaneously
herewith, BOH having purchased a portion of the interest of FHB
under the Original Loan Agreement, as amended by the First
Restatement, and the other Loan Documents referred to therein,
the respective "Individual Loan Commitment Percentage" of each
Lender is now as follows:
(1) BOH's Individual Loan Commitment Percentage is equal to
53.667%;
(2) FHB's Individual Loan Commitment Percentage is equal to
33.333%; and
(3) CPB's Individual Loan Commitment Percentage is equal to
13%;
WHEREAS, the Aggregate Loan Commitment having been
permanently reduced to be equal to $15,000,000, the respective
Individual Loan Commitments of the Lenders are as follows:
(1) BOH's Individual Loan Commitment is equal to $8,050,000;
(2) FHB's Individual Loan Commitment is equal to $5,000,000; and
(3) CPB's Individual Loan Commitment is equal to $1,950,000;
WHEREAS, capitalized terms used herein and not otherwise
defined herein shall have the respective meaning assigned thereto
in the Original Loan Agreement;
WHEREAS, the parties hereto have agreed to further amend the
terms of the Original Loan Agreement to, among other things,
establish a development line (the "Village Course Facility") in
the aggregate principal amount of FIFTEEN MILLION DOLLARS
($15,000,000.00);
WHEREAS, for their mutual convenience, the parties wish to
restate the Original Loan Agreement to reflect their agreements
as of the date hereof with respect to the Revolving Loans, the
Term Loans and the Village Course Facility, subject to the
satisfaction of the conditions precedent set forth in Section 3.2
hereof, all as set forth in this Amendment and Restatement;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Lenders and the Agent hereby
agree that effective on the Effective Date (as defined below),
the terms and provisions of the Original Loan Agreement are
amended and restated to read in their entirety as follows:
I. Additional Definitions
As used in this Loan Agreement, each of the terms defined in
this Article I shall have the meaning given to it in this Article
I:
1.1 "Agency Agreement" means the Agency Agreement dated as of
March 1, 1993, among the Original Lenders and the Agent,
authorizing the Agent to act as agent in respect of the Loans, as
amended by Amended and Restated Agency Agreement dated
December 4, 1998, among the Lenders and the Agent and as
further amended from time to time.
1.2 "Additional Security Mortgage" means the Additional Security
Mortgage and Security Agreement dated March 1, 1993, made by
Kapalua Land Company, Ltd. and recorded in the Bureau of
Conveyances of the State of Hawaii as Document No. 93-036900, as
originally executed or thereafter modified.
1.3 "Advance" shall have the meaning given in Section 2.1(c).
1.4 "Aggregate Loan Commitment" means, with respect to the
Original Facility, $15,000,000, subject to further permanent
reduction in accordance with the terms hereof, and with respect
to the Village Course Facility, $15,000,000.
1.5 "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 consideration of the money market, and
published by intrabank memoranda for the guidance of its loan
officers in pricing all of its loans which float with the Base
Rate.
1.6 "Base Rate Loan" means a Loan which bears interest
calculated on the basis of the Base Rate.
1.7 "Borrowing" means the draw down at any one time of the
proceeds of a Loan pursuant to the Loan Agreement.
1.8 "Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Hawaii are authorized by
law to close.
1.9 "Capital Expenditures" means all expenditures that, in
accordance with GAAP, should be capitalized on the accounting
records of the Borrower and its Subsidiaries.
1.10 "Cash Flow from Operating Activities" means, at any time,
the consolidated cash flows of the Borrower and the Subsidiaries
from operating activities, determined on a basis consistent with
the basis used for the determination of the Statements of Cash
Flows from Operating Activities as presented in the Borrower's
1991 Annual Report to its stockholders.
1.11 "Collateral" means the land and improvements of the Village
Golf Course, the Plantation Golf Course and the Bay Golf Course
in Kapalua, Maui, Hawaii, which land is more particularly
described in the Mortgage and in the Additional Security
Mortgage.
1.12 "Commitment Reduction Date" means each date that the
Aggregate Loan Commitment is to be reduced pursuant to the
provisions of Section 2.6 of this Loan Agreement.
1.13 "Confirmations of Mortgage" means the confirmation of the
Mortgage of even date herewith by and between Borrower and
Lenders and the confirmation of the Additional Security Mortgage
of even date herewith by and between Kapalua Land Company, Ltd.
and Lenders.
1.14 "Consolidated Current Assets" and "Consolidated Current
Liabilities" mean, at any time, all assets or liabilities,
respectively, that, in accordance with generally accepted
accounting principles consistently applied, should be classified
as current assets or current liabilities, respectively, on a
consolidated balance sheet of the Borrower and its Subsidiaries,
except that "Consolidated Current Assets" shall not include
growing crops and that "Consolidated Current Liabilities" shall
not include the aggregate outstanding principal amount of the
Loans, together with accrued and unpaid interest thereon, at the
time of determination.
1.15 "Conversion Date" shall have the meaning provided in Section
2.7(e).
1.16 "Current Ratio" means, at any time, Consolidated Current
Assets divided by Consolidated Current Liabilities.
1.17 "Effective Date" shall have the meaning assigned thereto in
Section 3.2 hereof.
1.18 "Environmental Indemnification Agreement" means an
Environmental Indemnification Agreement in the form of Exhibit A
attached to the Original Loan Agreement, made by the Borrower in
favor of the Lenders, as amended from time to time.
1.19 "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.
1.20 "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.
1.21 "Expiry Date" means December 31, 1999.
1.22 "Financial Statements" means the consolidated balance sheets
of the Borrower and its Subsidiaries and consolidated statements
of income and retained earnings of the Borrower and its
Subsidiaries and other financial statements (a) heretofore
furnished to the Lenders, or any of them, and (b) to be furnished
to the Lenders pursuant to the provisions of this Loan Agreement.
1.23 "GAAP" means generally accepted accounting principles
consistently applied.
1.24 "Indebtedness for Borrowed Money" means any indebtedness or
obligation or liability to repay borrowed monies, whether matured
or unmatured, liquidated or unliquidated, direct or contingent,
joint or several, including, without limitation, all such
indebtedness guaranteed, directly or indirectly, in any manner,
or endorsed (other than for collection or deposit in the ordinary
course of business) or discounted with recourse.
1.25 "Individual Loan Commitment" means:
(a) In respect of Bank of Hawaii, $8,050,000 with respect to the
Original Facility, subject to further permanent reduction from
time to time in accordance with the terms of the Loan Agreement,
and $7,500,000 with respect to the Village Course Facility.
(b) In respect of First Hawaiian Bank, $5,000,000 with respect
to the Original Facility, subject to further permanent reduction
from time to time in accordance with the terms of the Loan
Agreement, and $5,000,000 with respect to the Village Course
Facility.
(c) In respect of Central Pacific Bank, $1,950,000 with respect
to the Original Facility, subject to further permanent reduction
from time to time in accordance with the terms of the Loan
Agreement, and $2,500,000 with respect to the Village Course
Facility.
1.26 "Individual Loan Commitment Percentage" means, in respect of
Bank of Hawaii, 53.667% with respect to the Original Facility and
50% with respect to the Village Course Facility; in respect of
First Hawaiian Bank 33.333% with respect to the Original Facility
and 33.333% with respect to the Village Course Facility; and in
respect of Central Pacific Bank 13% with respect to the Original
Facility and 16.667% with respect to the Village Course Facility.
1.27 "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.
1.28 "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 the Loan Agreement.
1.29 "Investments" means all expenditures by the Borrower and its
Subsidiaries, not reflected as Capital Expenditures in the
Financial Statements, made for the purpose of acquiring,
increasing or supplementing equity interests of any nature in
partnerships, joint ventures, corporations, trusts, associations
or other business entities, or in real property of any kind, and
reflected as Investments in the Financial Statements.
1.30 "KCA" means Kaahumanu Center Associates, a Hawaii limited
partnership which is organized between the Borrower, as general
partner, and the State of Hawaii Employee Retirement System, as
limited partner, for the purpose of acquiring, expanding and
operating the Kaahumanu Shopping Center complex.
1.31 "Laws" means all ordinances, statutes, rules, regulations,
orders, injunctions, writs or decrees of any government or
political subdivision or agency thereof, or any court or similar
entity established by any thereof.
1.32 "Lenders" is defined in the preamble of this Amendment and
Restatement; provided, however, that as used hereinbelow,
"Lenders" means (a) prior to the BOA Purchase, BOH, FHB, BOA and
CPB, and (b) subsequent to the BOA Purchase, BOH, FHB and CPB.
1.33 "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
1.34 "LIBOR Loan" means any Loan during any period during which
such Loan is bearing interest at a rate based upon LIBOR.
1.35 "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 2.3 or Section 2.7 of the
Loan Agreement, as the case may be.
1.36 "Loan Agreement" means the Original Loan Agreement, as
amended and restated by the First Restatement and by this
Amendment and Restatement, and as may be further amended from
time to time, and any amendments and modifications of the
Original Loan Agreement.
1.37 "Loan Documents" means the Loan Agreement, the Notes, the
Mortgage, the Environmental Indemnity Agreement and the
Additional Security Mortgage, in each case as originally executed
and as thereafter amended, modified or restated from time to time
in accordance with the respective terms thereof.
1.38 "Loans" means all Revolving Loans, Term Loans and Advances
to be made to the Borrower pursuant to the Loan Agreement.
1.39 "Majority in Interest of the Lenders" means Lenders holding
100% of the aggregate principal amount of the Loans then
outstanding hereunder (or if no Loans are at the time
outstanding, Lenders having 100% of the Aggregate Loan
Commitment).
1.40 "Maturity Date" means December 31, 2002.
1.41 "Mortgage" means, collectively, the Mortgage and Security
Agreement dated March 1, 1993, made by the Borrower, as
Mortgagor, in favor of the Lenders, as Mortgagees, recorded in
said Bureau as Document No. 93-036896 and that certain Mortgage
and Security Agreement made by Borrower, as Mortgagor, in favor
of Lenders, as Mortgagees, recorded in said Bureau as Document
No. 93-036898, as the same were originally executed and as
thereafter amended or modified.
1.42 "Net Profits" means, for any fiscal year, the consolidated,
after-tax net profits of the Borrower and its Subsidiaries for
such year, determined in accordance with generally accepted
accounting principles consistently applied.
1.43 "Net Worth" means, at any time, on a consolidated basis for
the Borrower and the Subsidiaries, their Net Worth as shown in
the most recent Financial Statements (provided, however, that for
purposes of determining Net Worth under the Loan Agreement, the
amount of any goodwill or debt discount carried as assets on such
Financial Statements, trademarks, patents, copyrights,
organizational expense and other similar intangible items shall
be subtracted).
1.44 "Note Modification Agreements" means the Note Modification
Agreements of even date herewith by and between Borrower and Bank
of Hawaii and First Hawaiian Bank, respectively.
1.45 "Notes" means, collectively, (a) the Revolving Notes, as
respectively amended from time to time, (b) from and after the
date of the making of the Term Loans, each of the Term Notes, as
respectively amended from time to time and (c) the Village Course
Facility Notes, as respectively amended from time to time.
1.46 "Notice of Conversion" shall have the meaning provided in
Section 2.7(e) of this Amendment and Restatement.
1.47 "Obligations" means, collectively, the obligations of the
Borrower to pay the principal of and interest on the Notes in
accordance with the terms thereof and to satisfy all of the
Borrower's other indebtedness, covenants, liabilities and
obligations to the Lenders under the Loan Documents, whether now
existing or hereafter incurred, matured or unmatured, direct or
contingent, joint or several.
1.48 "Original Facility" means the revolving loan and term loan
facility established by the Original Loan Agreement, as amended
by the First Restatement and as the same may be further amended,
but excluding the Village Course Facility.
1.49 "Person" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated
organization, joint venture, court or government or political
subdivision or agency thereof.
1.50 "Records" means correspondence, memoranda, tapes, discs,
papers, books and other documents, or transcribed information of
any type, whether expressed in ordinary or machine language.
1.51 "Recourse Debt" means, as to the Borrower or any Subsidiary,
all items of indebtedness, obligation or liability for borrowed
funds, whether now existing or hereafter incurred, matured or
unmatured, direct or contingent, joint or several, including, but
without limitation:
(a) All indebtedness for borrowed money guaranteed, directly or
indirectly, in any manner, or endorsed (other than for collection
or deposit in the ordinary course of business) or discounted with
recourse;
(b) All indebtedness for borrowed money in effect guaranteed,
directly or indirectly, through agreements, contingent or
otherwise: (1) to purchase such indebtedness; or (2) to purchase,
sell or lease (as lessee or lessor) property, products, materials
or supplies or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such
indebtedness or to assure the owner of the indebtedness against
loss; or (3) to supply funds to or in any other manner invest in
the debtor; and
(c) All indebtedness for borrowed money secured by (or for which
the holder of such indebtedness has a right, contingent or
otherwise, to be secured by) any mortgage, deed of trust, pledge,
lien, security interest or other charge or encumbrance on
property owned or acquired subject thereto, whether or not the
liabilities secured thereby have been assumed;
provided, however, the foregoing provisions to the contrary
notwithstanding, Nonrecourse Secured Debt shall not be considered
Recourse Debt. For this purpose "Nonrecourse Secured Debt" means
all items of indebtedness incurred by the Borrower or a
Subsidiary for borrowed money, now existing or hereafter arising,
secured by real or personal collateral and in respect of which
the sole recourse of the holder of the debt instrument for
payment of the indebtedness evidenced thereby is against the
collateral for such indebtedness, and not against the obligor
individually or the obligor's other assets.
1.52 "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.
1.53 "Revolving Loans" means Loans requested by the Borrower
pursuant to Section 2.3, below, and granted by the Lenders during
the Revolving Loan Period (as that term is defined in Section
2.1, below).
1.54 "Revolving Notes" means, collectively (i) originally, each
of four Notes, executed by the Borrower pursuant to the Original
Loan Agreement and payable individually to the order of an
Original Lender, in each case, as amended from time to time, and
(ii) each of such Notes, as respectively amended and restated by
the three Amended and Restated Revolving Notes dated December 4,
1996, executed by the Borrower pursuant to the First Restatement,
and as the same may be further respectively amended from time to
time.
1.55 "Site 29 Project" means that certain real estate development
project intended to be built by Kapalua Coconut Grove, LLC, on
the 12.2 acre parcel of land, identified as Tax Map Key (2) 4-2-
04-26.
1.56 "Subsidiary" means any corporation of which more than 50% of
the outstanding voting securities having ordinary voting power to
elect a majority of the Board of Directors of such corporation
shall, at the time of determination, be owned directly, or
indirectly through one or more Subsidiaries, by the Borrower. A
list of the currently-existing Subsidiaries is attached hereto as
Exhibit H.
1.57 "Term Loan" has the meaning given to it in Section 2.1(b) of
the Loan Agreement.
1.58 "Term Notes" means, collectively, the three Term Notes
executed by the Borrower and payable to the order of each Lender,
individually, each in the form of Annex IV hereto, and completed
in conformity with the provisions of the Loan Agreement.
1.59 "Total Debt" means, as to the Borrower and all Subsidiaries,
on a consolidated basis, all Indebtedness for Borrowed Money,
including, without limitation, all Recourse Debt and Nonrecourse
Secured Debt, plus all lease obligations which are capitalized on
the Borrower's and/or Subsidiaries, balance sheets in accordance
with generally accepted accounting principles.
1.60 "Type" means either a Base Rate Loan or a LIBOR Loan.
1.61 "Village Course Facility Maturity Date" means December 11,
2000.
1.62 "Village Course Facility Notes" means, collectively, the
three promissory notes to be executed by the Borrower and payable
to the order of each Lender, individually, in the amount of each
such Lender's Individual Loan Commitment with respect to the
Village Course Facility, each in the form of Exhibit 1 hereto,
and completed in conformity with the provisions of this Loan
Agreement.
II. The Loans
2.1 General Terms.
(a) Revolving Loans. On the terms and provisions and subject to
the satisfaction of the conditions stated in the Loan Agreement,
each Lender hereby severally agrees to make Loans to the
Borrower, from time to time and at any time prior to the Expiry
Date (the "Revolving Loan Period"), each in a principal amount
equal to such Lender's Individual Loan Commitment Percentage with
respect to the Original Facility of the total amount to be
borrowed on any occasion; provided, however, that (1) subject to
the provisions of Section 2.6 of the Loan Agreement, the
aggregate principal amount at any one time outstanding of all
Loans under the Original Facility shall not exceed the Aggregate
Loan Commitment with respect to the Original Facility, (2) no
Lender shall be obligated to make Loans to the Borrower under the
Original Facility which shall exceed, in the aggregate principal
amount at any one time outstanding, such Lender's Individual Loan
Commitment with respect to the Original Facility, (3) each
advance of Loan proceeds under the Original Facility shall be
made by the several Lenders ratably, in a principal amount equal
to such Lender's Individual Loan Commitment Percentage with
respect to the Original Facility of the total amount to be
borrowed on any occasion, (4) no Lender shall have any obligation
or liability to the Borrower or any other Person as a result of
the failure of another of the Lenders to observe any of its
obligations under the Loan Agreement, and (5) no Lender (in its
capacity as such) shall have any obligation or liability to the
Borrower or any other Person as a result of the failure of the
Agent to observe any of its obligations under this Loan Agreement
or the Agency Agreement. During the Revolving Loan Period the
Borrower may borrow, repay without penalty or premium and
reborrow under the Original Facility, either the full amount of
the Aggregate Loan Commitment then in effect with respect to the
Original Facility or any lesser sum, provided that any borrowing
hereunder shall be in an amount not less than $500,000, and an
integral multiple of $100,000, and provided that any voluntary
prepayment of the Original Facility shall be in an amount not
less than $250,000, and an integral multiple of $50,000.
Principal of and interest on the Revolving Loans shall be paid by
the Borrower at the times and in the manner stated in the
Revolving Notes and in the Loan Agreement, including, without
limitation, Sections 2.7 and 2.8 below.
(b) Term Loans. Subject to the satisfaction of all terms and
conditions of the Loan Agreement, including, without limitation,
Section 3.3 hereof, each Lender severally agrees to make a term
loan ("Term Loan") to the Borrower on the Expiry Date, in an
amount equal to the aggregate principal amount of the Revolving
Loans then outstanding and owing by the Borrower to such Lender.
The proceeds of each Term Loan to be made by each Lender shall be
used to repay in full the Revolving Loans outstanding with
respect to such Lender on the date of the making of the Term
Loan. Term Loans may not be reborrowed. Principal of and
interest on the Term Loans shall be paid by the Borrower at the
times and in the manner stated in the Term Notes and in the Loan
Agreement, including, without limitation, Sections 2. 7 and 2.8
below.
(c) Village Course Facility. On the terms and provisions and
subject to the satisfaction of the conditions of the Loan
Agreement, the Lenders hereby establish a development line (the
"Village Course Facility") in favor of Borrower pursuant to which
the Lenders will extend credit to Borrower in the aggregate
principal amount of FIFTEEN MILLION DOLLARS ($15,000,000.00) (the
"Aggregate Loan Commitment with respect to the Village Course
Facility"); provided, however, that (1) the aggregate principal
amount at any one time outstanding of all Advances hereunder
shall not exceed the Aggregate Loan Commitment with respect to
the Village Course Facility, (2) no Lender shall be obligated to
make Advances to the Borrower which shall exceed, in the
aggregate principal amount at any one time outstanding, such
Lender's Individual Loan Commitment with respect to the Village
Course Facility, (3) each Advance shall be made by the several
Lenders ratably, in a principal amount equal to such Lender's
Individual Loan Commitment Percentage with respect to the Village
Course Facility of the total amount to be borrowed on any
occasion, (4) no Lender shall have any obligation or liability to
the Borrower or any other Person as a result of the failure of
another of the Lenders to observe any of its obligations under
the Loan Agreement, and (5) no Lender (in its capacity as such)
shall have any obligation or liability to the Borrower or any
other Person as a result of the failure of the Agent to observe
any of its obligations under the Loan Agreement or the Agency
Agreement. Borrower may draw on the Village Course Facility by
obtaining a cash advance (each such cash advance herein referred
to as an "Advance"), provided that any Advance shall be in an
amount not less than $500,000, and an integral multiple of
$100,000. Advances may not be reborrowed. Principal of and
interest on the Advances shall be paid by the Borrower at the
times and in the manner stated in the Village Course Facility
Notes and in the Loan Agreement, including, without limitation,
Sections 2.7 and 2.8 below.
2.2 Notes.
(a) Revolving Notes. The Borrower's obligation to pay the
principal of, and interest on, all Revolving Loans made by each
Lender shall be evidenced by a separate Revolving Note, executed
by the Borrower and payable to the order of such Lender. Each
Revolving Note issued to a Lender shall (1) be payable to the
order of such Lender and be dated the date of the initial
borrowing of proceeds of Revolving Loans, (2) be in the original
principal amount of the Individual Loan Commitment with respect
to the Original Facility of such Lender, (3) mature on the Expiry
Date, (4) bear interest as provided in Section 2.7 hereof, (5) be
repaid as provided in such Revolving Note and in Sections 2.7 and
2.8 hereof and (6) be entitled to the benefits of the Loan
Agreement.
(b) Term Notes. Each Term Loan made by a Lender to the Borrower
shall be evidenced by a separate Term Note, each executed by the
Borrower and payable to the order of such Lender. Each Term Note
issued to a Lender shall (1) be in the form of Annex IV hereto
with blanks appropriately completed in conformity with the Loan
Agreement, (2) be dated the Expiry Date, (3) be in the principal
amount of the aggregate unpaid principal amount of all Revolving
Loans then outstanding with respect to such Lender, (4) bear
interest as provided in Section 2.7 hereof, (5) be repaid as
provided in such Term Note and in Sections 2.7 and 2.8 hereof,
(6) mature on the Maturity Date and (7) be entitled to the
benefits of the Loan Agreement.
(c) Village Course Facility Notes. The Borrower's obligation to
pay the principal of, and interest on, all Advances made by each
Lender shall be evidenced by a separate Village Course Facility
Note executed by the Borrower and payable to the order of such
Lender. Each Village Course Facility Note issued to a Lender
shall (1) be payable to the order of such Lender and be dated the
date of this Amendment and Restatement, (2) be in the original
principal amount of the Individual Loan Commitment with respect
to the Village Course Facility of such Lender, (3) mature on the
Village Course Facility Maturity Date, (4) bear interest as
provided in Section 2.7 hereof, (5) be repaid as provided in such
Village Course Facility Note and in Sections 2.7 and 2.8 hereof
and (6) be entitled to the benefits of the Loan Agreement.
2.3 Requests for Loans.
(a) In respect of each Revolving Loan to be made pursuant to
Section 2.1(a) of the Loan Agreement, the Borrower shall give to
the Agent at least two (2) full Business Days' (or in the case of
a LIBOR Loan, three (3) Eurodollar Days') notice of the
Borrower's request therefor in writing, signed by an authorized
officer of Borrower, specifying the date of such Revolving Loan,
which shall be a Business Day, and the principal amount of such
Revolving Loan (which shall be not less than $500,000 and shall
be in an integral multiple of $100,000),
(b) In respect of each Advance, the Borrower shall give to the
Agent at least two (2) full Business Days' (or in the case of a
LIBOR Loan, three (3) Eurodollar Days') notice of the Borrower's
request therefor by a written "Notice of Borrowing/Conversion" in
the form of Exhibit 2 attached hereto, signed by an authorized
officer of Borrower. If the Advance will be a LIBOR Loan, such
written notice shall indicate the LIBOR Interest Period
applicable thereto.
2.4 Disbursements. During the Revolving Loan Period the Agent
will credit the proceeds of each Revolving Loan to the Borrower's
deposit account with Bank of Hawaii or, at the Borrower's
request, disburse the proceeds of such Revolving Loan to the
order of the Borrower. Unless otherwise directed in writing by
the Borrower, all proceeds of Advances shall be credited to the
Borrower's Deposit Account No. 61-058745, maintained with the
Agent.
2.5 Fees.
(a) Commitment Fee With Respect to the Original Facility. The
Borrower shall pay to the Agent for pro rata distribution to each
Lender, a commitment fee on the average daily unutilized
Aggregate Loan Commitment with respect to the Original Facility,
computed at the rate of one-quarter of one percent (0.25%) per an
num computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days (as the actual case may be) and
payable quarterly in arrears commencing on December 31, 1996, and
thereafter, on the last day of each March, June, September and
December prior to the Expiry Date and on the Expiry Date (or such
earlier date as the Aggregate Loan Commitment with respect to the
Original Facility shall be terminated).
(b) Village Course Facility Fee. In respect of the Village
Course Facility, the Borrower shall pay to the Agent, on demand,
for distribution to the Lenders according to their Individual
Commitment Percentages with respect to the Village Course
Facility the following non-refundable fee: $56,250.00.
(c) Agent's Fee. For and in respect of the services of the Agent
to be rendered with respect to the Original Facility hereunder
and under the Agency Agreement, the Borrower agrees to pay to the
Agent the fee set forth in Section 5.1(l) hereof. Agent's
underwriting fee with respect to the Village Course Facility is
established by separate agreement between Agent and Borrower.
2.6 Reductions of Commitment.
(a) Mandatory Reduction. By the close of business on each date
the Borrower or any Subsidiary receives any net sales proceeds
(i.e., gross sales proceeds less closing costs acceptable to the
Lenders) in respect of the sale of any real estate assets of the
Borrower or any Subsidiary, the Borrower shall notify the Agent
of such sale and the Borrower's receipt of such net sale proceeds
and shall pay to the Lenders through the Agent 75% of the
after-tax net proceeds so received by the Borrower as a mandatory
payment of the outstanding principal amount of the Loans under
the Original Facility; provided, however, that such mandatory
payments of principal shall not permanently reduce the Aggregate
Loan Commitment with respect to the Original Facility.
(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
with respect to the Original Facility, 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 under the
Original Facility exceeds the Aggregate Loan Commitment with
respect to the Original Facility as so reduced. Notwithstanding
any provision in the Loan Agreement 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.
(c) Effects of Reductions. After any such reduction, (1) the
commitment fees provided for in Section 2.5 of this Loan
Agreement shall be calculated in respect of the Aggregate Loan
Commitment with respect to the Original Facility as so reduced,
(2) the Individual Loan Commitments with respect to the Original
Facility of each Lender shall be reduced pro rata in accordance
with their respective Individual Loan Commitment Percentage with
respect to the Original Facility, which shall remain unchanged,
and (3) the notice of reduction described in subparagraph (b)
above, shall be irrevocable and the Aggregate Loan Commitment
with respect to the Original Facility may not be thereafter
increased without the written consent of all of the Lenders.
2.7 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 Loan Period. Outstanding balances of principal of
the Revolving Loans during the Revolving Loan Period shall bear
interest at either of the following interest rate options that
Borrower may select in accordance with the terms of the Loan
Agreement (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%). With respect to all LIBOR Loans in
effect during the Revolving 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 Expiry Date or (y) if at
the time of such election, an Event of Default shall have
occurred, to continue such Loan as a LIBOR Loan. Notwithstanding
any provision in the Loan Agreement to the contrary, in no event
shall the Borrower have the right to borrow, convert or continue
any Revolving Loan as a LIBOR Loan unless the aggregate principal
amount of all Revolving Loans is greater than or equal to
$500,000. No more than six (6) LIBOR Loans may be outstanding
under the Original Facility at any one time.
During the Revolving Loan 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 (2.5%). The Borrower shall give to the Agent
no later than the date (the "Term Loan Interest Election Date")
three (3) Eurodollar Days preceding 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 in this Section 2.7(b).
Notwithstanding any provision in the Loan Agreement 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 2.7(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 the Loan Agreement to the
contrary, in no event shall the Borrower have the right to
borrow, convert 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. No more than six (6) LIBOR Loans may be
outstanding under the Original Facility at any one time.
From and after the date of the making of the Term Loans,
interest accruing on the principal balance of the Term 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 and (ii) on the last day of each LIBOR
Interest Period and (iii) at maturity (whether by acceleration or
otherwise).
(c) Village Course Facility. The Borrower agrees to pay interest
on the outstanding principal balance of the Advances pursuant to
the following interest rate options that the Borrower may select
in accordance with the provisions of the Loan Agreement: (i) a
floating rate equal to the Base Rate in effect from time to time;
or (ii) LIBOR plus two and one-half percentage (2.5%) points. Any
portion of the Village Course Facility that is not a LIBOR Loan
is a Base Rate Loan. LIBOR Loan amounts under the Village Course
Facility shall be in minimums of $500,000 and in multiples of
$100,000, with at most six (6) LIBOR Loans outstanding under the
Village Course Facility at any one time.
The Borrower agrees to make monthly payments, to the Agent
for distribution to the Lenders, of all accrued interest on the
outstanding principal balance of each Base Rate Loan under the
Village Course Facility on the first day of each month. The
Borrower agrees to pay, to the Agent for distribution to the
Lenders, interest on the unpaid principal amount of each LIBOR
Loan under the Village Course Facility on the earlier of (i) the
last day of the LIBOR Interest Period or (ii) the last day of
each three-month interval occurring during the LIBOR Interest
Period and at maturity (whether by acceleration or otherwise).
(d) General. With respect to all Loans:
(1) Any floating rate of interest will increase or decrease
during the term of this Loan Agreement if there is an increase or
decrease in the rate to which the floating rate is tied. If the
rate to which the floating rate is tied is no longer available,
the Agent will choose a new rate that is based on comparable
information.
(2) Interest shall be computed on the basis of the actual number
of days elapsed between payments and on the basis of a 365-day
year (or, in leap years, on the basis of 366-day year) with
respect to Base Rate Loans and on the basis of a 360-day year
with respect to LIBOR Loans.
(3) 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.
(4) In no event shall the Borrower be obligated to pay any
amount under this Agreement 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.
(5) The foregoing rates of interest shall be subject to the
provisions of Section 6.2(c) hereof relating to the Default Rate
upon the occurrence and during the continuance of an Event of
Default.
(e) Conversions. 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 continuing, to
convert the Loans from one Type to another Type. Each time that
the Borrower elects to convert Loans from one Type to another
Type, it shall deliver to the Agent a written notice (a "Notice
of Conversion"), in the form attached hereto as Exhibit 2 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 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 the
Loan Agreement 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, the
Maturity Date, if such Loans are Term Loans, or the Village
Course Facility Maturity Date if such Loans are Advances.
2.8 Payments and Prepayments of Principal.
(a) Revolving Loans. The principal of the Revolving Loans shall
be due and payable as set forth in Section 2.6 hereof with
respect to mandatory reductions of principal. In addition, on
the Expiry Date (or such earlier date on which the Aggregate Loan
Commitment with respect to the Original Facility shall be
terminated), the outstanding principal balance of all Revolving
Loans shall be due and payable.
(b) Term Loans. The principal of the Term Loans shall be due and
payable as set forth in Section 2.6 hereof with respect to
mandatory reductions of principal. In addition, the outstanding
principal balance of the Term Loans shall be repaid in six equal
semi-annual installments, each of which shall be in an amount
equal to the lesser of (1) the product of the aggregate
outstanding principal balance of the Term Loans, multiplied by
1/6, or (2) the then outstanding principal balance of the Term
Loans. On the Maturity Date, the entire principal balance of the
Term Loans shall be due and payable.
(c) Village Course Facility. All principal and accrued interest
then outstanding with respect to the Village Course Facility
shall be due and payable in full on or before the Village Course
Facility Maturity Date.
(d) General.
(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 for either the Original Facility or the Village Course
Facility shall be made without a concurrent payment or prepayment
of principal under the other Notes for the same facility, 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 with respect to the
Original Facility or the Village Course Facility, as the case may
be. Payments and prepayments of principal with respect to the
Original Facility, 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 the Loan Agreement to
the contrary, 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.
(2) If any payment under this Agreement is not made when due,
the Borrower will pay to the Agent for pro rata distribution to
the Lenders (or for the sole account of Agent to the extent
relating to a payment not to be distributed to the Lenders) a
late charge in respect of that payment, in the amount of 5% of
the overdue payment.
2.9 Sums Payable to the Lenders. The Agent shall send to the
Borrower, from time to time, statements of all amounts due under
the Notes and other Loan Documents, which statements shall be
considered correct and conclusively binding on the Borrower,
absent manifest error, unless the Borrower notifies the Agent to
the contrary within 30 Business Days of its receipt of any
statement which it deems to be incorrect. The records of the
Agent evidencing the date of disbursement and principal amount of
each Loan and the amounts of all repayments of principal and
payments of interest on each Loan shall constitute prima facie
evidence of the making and repayment of such Loans and of the
payment of such interest. However, the Agent's making of
erroneous notations in its records shall not affect the
Borrower's obligation to repay the outstanding balance of
principal under a Loan, and accrued interest thereon, as provided
in the Loan Agreement. All sums payable to the Lenders under the
Notes and other Loan Documents shall be paid directly to the
Agent, in its capacity as such, in immediately available funds.
2.10 Payment Dates. Whenever any payment of principal of, or
interest on, any Loan or of any commitment fee shall be due on a
day which is not a Business Day (or a Eurodollar Day in the case
of a LIBOR Loan), the date for payment thereof shall be extended
to the next succeeding Business Day or a 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. Any payment received by the
Agent after 11:00 a.m. shall not be credited until the next
Business Day.
2.11 Funding Loss and Yield Protection Provisions.
(a) Change in Legality; Additional Costs to Lenders. If after
the date of the Loan Agreement any change in applicable law or
regulation or in the interpretation or administration thereof by
any governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law)
shall, with respect to the Lenders, or any of them, (1) change
the basis of taxation of payments to the Lenders, or any of them,
or the principal or interest on the Loans under the Loan
Agreement, (2) impose, modify or hold applicable any fees,
reserve requirements, special deposits or any costs to the
Lenders, or any of them, in respect of the Loans, or (3) cause a
reduction in the amount of any sum received or receivable under
the Loan Agreement; then, and in any such event, the Borrower
shall pay to the Agent, on demand, for distribution to such
Lenders, such additional amounts as will compensate such
Lender(s) on an after-tax basis for such cost or reduction
incurred; provided, however, that the Borrower shall not be
obligated directly or indirectly to pay for federal or state
income taxes measured or levied generally upon the net income of
any Lender. The Lenders may use any reasonable method in
calculating their additional costs under this Section, which
calculation shall be conclusive absent manifest error.
(b) Capital Requirements. If the Lenders, or any of them, shall
determine that compliance with any law, regulation or any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law) would result
in an increase in the amount of capital required or expected to
be maintained by such Lender(s) or any corporation controlling
such Lender(s), and that such increase is based upon the
existence of such Lender's commitment hereunder and other
commitments of this type, then, and in any such event, the
Borrower shall pay the Agent as an additional fee, from time to
time on demand, for distribution to such Lender(s), such
amount(s) as such Lender(s) shall determine to be the amount(s)
that will compensate it or them or such other corporation for any
reduction in the rate of return on such capital. A certificate
as to the amount of compensation, submitted to the Borrower by
the affected Lender(s), shall be conclusive and binding for all
purposes absent manifest error.
(c) Lack of Availability or Profitability of Eurodollar
Deposits; Illegality. In the event that any Lender shall have
reasonably determined (which determination shall be final and
conclusive and binding upon all parties) that:
(1) on any date for determining LIBOR for any LIBOR Interest
Period, by reason of any change after the date hereof affecting
the interbank 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
(2) at any time, by reason of (i) any change after the date of
the Loan Agreement in any applicable law or governmental rule,
regulation or order (or any interpretation thereof by any
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 (3) below, or (ii) in the case of LIBOR
Loans, other circumstances affecting such Lender or the interbank
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 Borrowing; or
(3) 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
(4) at any time, the making or continuance of any LIBOR Loan has
become unlawful or compliance by such Lender in good faith with
any law, governmental 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 materially and
adversely affects the interbank 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 (1), (2) or (3) above, (and without affecting
Borrower's obligations to pay interest on the Loans at the rates
set forth in Section 2.7 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 calculating, 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 (i)
the applicable rate per annum determined in accordance with
Section 2.7, hereinabove, plus (ii) the effective pricing to such
Lender to make or maintain such LIBOR Loan, and in the case of
clause (4), Borrower shall within five (5) Business Days prepay
all LIBOR Loans so affected, together with all accrued interest
thereon but without penalty for any costs, net losses or overhead
pursuant to Section 2.11(e), subject to the provisions of Section
2.11(d) hereinbelow. A certificate as to additional amounts owed
to any Lender, shown 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) Borrower's Right to Convert Loans. At any time that any of
its Borrowings are affected by the circumstances described in
Section 2.11(c) Borrower may (i) if a LIBOR Loan has been
requested but not implemented, cancel such Loan or conversion by
giving the Agent notice thereof by telephone (confirmed in
writing) pursuant to Section 2.11(c) or (ii) if the affected
LIBOR Loan is then outstanding, upon at least three (3) Business
Days' written notice to the Agent, require the Lenders to convert
such LIBOR Loan into a Base Rate Loan.
(e) Funding Loss Indemnification. If the Borrower shall (a) pay
or convert any LIBOR Loan on any day other than the last day of
the applicable LIBOR Interest Period (whether on account of a
scheduled payment, an optional prepayment or conversion, a
mandatory prepayment or conversion, a payment upon acceleration
or otherwise); or (b) fail to borrow any LIBOR Loan after giving
due notice thereof to the Agent pursuant to Section 2.3 or
Section 2.7, as the case may be, or (c) fail to convert any Base
Rate Loan into a LIBOR Loan after giving due notice thereof to
the Agent pursuant to Section 2.7, the Borrower shall reimburse
the Lenders and hold the Lenders harmless for all costs, net
losses or administrative overhead incurred as a result of such
repayment, prepayment or failure. The Lenders may use any
reasonable method in calculating their loss under this Section,
which calculation shall be binding and conclusive on the Borrower
absent manifest error.
III. Conditions Precedent
3.1 Documents Required. The Lenders shall have no several
obligations to make disbursements of Loans pursuant to the
provisions of the Loan Agreement, unless and until the Lenders
(through the Agent) shall have received such executed originals
or certified copies of each of the following instruments as the
Lenders (through the Agent) may have reasonably requested, in
each case in form and substance acceptable to the Lenders and
their respective legal counsel:
(a) The Loan Agreement, the Notes, the Mortgage, the Additional
Security Mortgage, UCC Financing Statements describing the
security interests created by the Mortgage and Additional
Security Mortgage, and the Environmental Indemnity Agreement;
(b) The Agency Agreement;
(c) A certificate signed by the Borrower's corporate secretary,
certifying to the Lenders and Agent: (1) as to the adoption of
Resolutions of the Borrower's Board of Directors authorizing the
execution, delivery and performance of the Loan Documents and all
other documents to be delivered by the Borrower pursuant to this
Loan Agreement; (2) as to the incumbency and signatures of the
officers of the Borrower signing the Loan Documents, and each
other document to be delivered by the Borrower pursuant to this
Loan Agreement; and (3) that the Articles of Incorporation and By-
Laws of the Borrower, true copies of which have been attached to
such certification, have not been amended since the date of such
delivery;
(d) A certificate of the Director of Commerce and Consumer
Affairs of the State of Hawaii, evidencing the good standing of
the Borrower in the State of Hawaii;
(e) A written opinion of independent counsel to the Borrower,
addressed to the Lenders, stating that:
(1) The Borrower and the Subsidiaries are corporations duly
organized, validly existing and in good standing under the Laws
of the State of Hawaii and are duly qualified and in good
standing as foreign corporations in all jurisdictions wherein the
nature of their businesses or the properties owned by them make
such qualification necessary;
(2) The Borrower has the corporate power and authority to
execute and deliver the Loan Documents, to borrow money
hereunder, and to perform the Obligations;
(3) All corporate action required to be taken by the Borrower to
enter into the transactions contemplated by the Loan Agreement
has been duly taken, and all consents and approvals of all
Persons, necessary to the validity of the Loan Documents, and
each other document to be delivered by the Borrower hereunder
have been duly obtained, and the Loan Documents and such other
documents do not conflict with any provision of the Articles of
Incorporation or By-Laws of the Borrower, or of any applicable
Laws or any other agreement binding upon the Borrower or its
property of which such counsel has knowledge and the Borrower's
execution, delivery and performance of the Loan Documents do not
require the consent or approval of any governmental body or
regulatory authority;
(4) The Loan Documents and all other documents required to be
delivered by the Borrower pursuant to the provisions of the Loan
Agreement have been duly executed by, and each is a valid and
binding obligation of, the Borrower, enforceable in accordance
with its terms;
(5) Kapalua Land Company, Ltd. ("KLC") has the corporate power
and authority to execute and deliver the Additional Security
Mortgage, all corporate action required to be taken by KLC in
respect of its execution and delivery of the Additional Security
Mortgage has been duly taken, and the Additional Security
Mortgage has been duly executed and delivered by KLC and is a
valid and binding obligation of KLC, enforceable in accordance
with its terms; and
(6) Such counsel is without any knowledge of any matters
contrary to the representations and warranties contained in
Section 4.1 of the Loan Agreement; and
(f) A certificate dated the date of the Loan Agreement and
signed by the President or an Executive Vice President of the
Borrower, certifying to the Lenders and Agent that:
(1) The representations and warranties contained in Section 4.1
of the Loan Agreement are true on and as of such date; and
(2) No Event of Default under the Loan Agreement, and no event
which, with the giving of notice or passage of time, or both,
would become such an Event of Default, has occurred on and as of
such date;
(g) Evidence that the Revolving and Term Loan Agreement dated as
of December 27, 1990, as amended by instruments dated as of
December 31, 1991 and March 31, 1992, among Bank of Hawaii, First
Hawaiian Bank and Bank of America National Trust and Savings
Association (successor-in-interest to Security Pacific National
Bank), as Lenders, Bank of Hawaii, as Agent, and the Borrower,
together with the Notes and Agency Agreement therein described,
have been terminated, and that all Loans and all other
indebtedness of the Borrower thereunder have been repaid or paid
in full (or that arrangements, acceptable to the Lenders and
Agent thereunder, the Lenders and Agent hereunder, and the
Borrower, have been made for the repayment of said Loans and the
payment of all such other indebtedness from the proceeds of the
initial Loans under this Loan Agreement); and
(h) Evidence that the Mortgage and Additional Security Mortgage
have been recorded in the Bureau of Conveyances of the State of
Hawaii (and, if appropriate, filed in the office of the Assistant
Registrar of the Land Court of Hawaii), that the related UCC
Financing Statements have been filed in said Bureau, and that the
Lenders hold a first mortgage lien on and first security interest
in all properties described in and purported to be encumbered by
the Mortgage and Additional Security Mortgage, subject to no
liens or encumbrances other than those noted in (or authorized
by) the Mortgage.
In addition to the foregoing conditions precedent, the
following conditions shall have been satisfied:
(i) At the time of the initial disbursement of Loan proceeds
under the Loan Agreement and of each subsequent disbursement of
Loan proceeds under the Loan Agreement:
(1) No Event of Default under the Loan Agreement shall have
occurred and be continuing, and no event shall have occurred and
be continuing that, with the giving of notice or passage of time,
or both, would become such an Event of Default;
(2) The Agent shall have received a request for such
disbursement pursuant to Section 2.3 of the Loan Agreement;
(3) The representations and warranties contained in Section 4.1
of the Loan Agreement shall be true on and as of the date of such
disbursement with the same force and effect as if made on and as
of such date;
(4) The Lenders shall have remitted to the Agent the Lenders,
respective pro rata shares of the disbursement then due; and
(5) All legal matters incidental to such disbursement shall be
satisfactory to the Agent's counsel.
The parties hereto acknowledge that the foregoing conditions
precedent set forth in this Section 3.1 have heretofore been
satisfied with respect to the initial disbursement of Loan
proceeds.
3.2 Conditions Precedent to Effective Date of Amendment and
Restatement. Notwithstanding anything herein to the contrary,
the effectiveness of the amendment and restatement of the
Original Loan Agreement in accordance with the terms of this
Amendment and Restatement, is subject to the satisfaction of all
of the following conditions, and on the date of the satisfaction
of such conditions (the "Effective Date"), the Original Loan
Agreement shall be deemed amended and restated as set forth
herein:
(a) Documents Required. The Agent shall have received, in each
case in form and substance satisfactory to the Agent and the
Lenders, such fully executed originals or certified copies as the
Agent and the Lenders may have requested of each of the
following, in each case as amended through the Effective Date:
(1) Loan Documents. This Amendment and Restatement and the
Village Course Facility Notes, each executed by the Borrower and
completed in conformity with the provisions of this Amendment and
Restatement, the Note Modification Agreements, the Confirmations
of Mortgage and said Amended and Restated Agency Agreement;
(2) Consents and Authority. Evidence that the Borrower has
obtained all necessary and appropriate authority, approvals and
consents to execute, deliver and perform the terms of (i) this
Amendment and Restatement, the Village Course Facility Notes, the
Note Modification Agreements and the Confirmations of Mortgage
(collectively called the "Amending Documents") and (ii) the Loan
Documents, as amended and restated by the Amending Documents,
including, without limitation, certified resolutions of the
Borrower as to such authority;
(3) BOA. An Assignment by BOA to the Lenders of BOA's
interests in the Mortgage and the Additional Security Mortgage;
and
(4) Title Insurance. An ALTA Form Lender's Title Insurance
Policy for $30,000,000.00, assuring to the Lenders the validity
and agreed-upon priority of the Mortgage and the Additional
Security Mortgage may require. Such Title Insurance Policy may
be subject to an exception for survey matters.
(b) Certain other Events. On the Effective Date:
(1) No event shall have occurred and be continuing that (i)
constitutes an Event of Default, or (ii) with the giving of
notice or passage of time, or both, would constitute such an
Event of Default (a "Default").
(2) The representations and warranties contained in Section 4.1
of the Loan Agreement shall be true on and as of the Effective
Date with the same force and effect as if made on the Effective
Date, other than as previously disclosed to the Agent with
respect to the representations and warranties set forth in
Section 4.1(f) and (k) hereof.
(3) No material adverse change shall have occurred in the
financial condition of the Borrower since the date of the most
recent of the Borrower's financial statements submitted to the
Agent.
(4) The Borrower shall have delivered to the Agent and the
Lenders a certificate dated the Effective Date, signed by the
President or an Executive Vice President of the Borrower,
certifying to the Agent and the Lenders the matters set forth in
clauses (1) and (2) of Section 3.1(f) of the Loan Agreement.
(5) All legal matters incidental to the closing shall be
satisfactory to legal counsel for the Agent and each Lender.
(c) Interest and Other Charges. On the Effective Date, the
Borrower shall have paid to the Agent (1) the fee referred to in
Section 2.5(b) hereof, and (2) all sums of accrued interest and
other fees and charges then outstanding under the Loan Documents.
On the Effective Date, subject to the satisfaction of the
foregoing conditions, the Original Loan Agreement shall be deemed
amended and restated in accordance with the provisions of this
Amendment and Restatement, with the force and effect set forth in
Section 7.18 hereof.
3.3 Conditions to Term Loans. The obligation of the Lenders to
make their respective Term Loans to the Borrower on the Expiry
Date shall be subject to the satisfaction of the following
conditions precedent:
(a) Term Notes. The Borrower shall have executed and delivered
to the Agent for distribution to the Lenders each of the Term
Notes;
(b) Defaults and Events of Default. No Default or Event of
Default under the Loan Agreement shall have occurred and be
continuing;
(c) Representations and Warranties. The representations and
warranties contained in Section 4.1 of the Loan Agreement shall
be true on and as of the Expiry Date with the same force and
effect as if made on the Expiry Date;
(d) Certificate. The Borrower shall have delivered to the Agent
and the Lenders a certificate dated the Expiry Date, signed by
the President or an Executive Vice President of the Borrower,
certifying to the Agent and the Lenders the matters set forth in
clauses (1) and (2) of Section 3.1(f) of the Loan Agreement; and
(e) Illegality. The making of the Term Loans shall not have
been rendered illegal by any of the Laws applicable thereto.
If such conditions shall not have been satisfied on Expiry
Date, all outstanding principal together with accrued and
theretofore unpaid interest on the Revolving Loans and all other
amounts due to the Lenders under the Loan Documents shall be paid
in full on the Expiry Date.
IV. Representations and Warranties
4.1 Original. To induce the Lenders to enter into this
Amendment and Restatement, the Borrower represents and warrants
to the Lenders as follows:
(a) The Borrower and the Subsidiaries are corporations duly
organized, validly existing and in good standing under the Laws
of Hawaii; the Borrower and the Subsidiaries have the lawful
corporate power and adequate authority, rights and franchises to
own or lease their respective properties and to engage in the
businesses they each conduct, and each is duly qualified and in
good standing as a foreign corporation in each jurisdiction, if
any, wherein the nature of the business transacted by it or
property owned by it makes such qualification necessary;
(b) The execution and performance of the Loan Documents will not
immediately, or with the passage of time or the giving of notice,
or both:
(1) Violate the Articles of Incorporation or By-Laws of the
Borrower, or violate any Laws or breach or result in a default
under any contract, agreement, or instrument to which the
Borrower or any Subsidiary is a party or by which the Borrower or
any Subsidiary or its property is bound, or require the consent
or approval of any governmental office or official; or
(2) Result in the creation (or an obligation to create) or
imposition of any security interest in, or lien or encumbrance
on, any of the assets of the Borrower or any Subsidiary, other
than the liens or security interests intended to be created by
the Mortgage and by the Additional Security Mortgage;
(c) The Borrower has the corporate power and authority to
execute and deliver the Loan Document and to incur and perform
the obligations, and has taken all corporate action necessary to
authorize the execution, delivery, and performance of the Loan
Documents;
(d) The Borrower's execution, delivery and performance of the
Loan Documents do not require the consent or approval of any
governmental body or other regulatory authority;
(e) The Loan Agreement is, and the remainder of the Loan
Documents when executed and delivered will be, the legal, valid
and binding obligations of the Borrower, and enforceable in
accordance with their respective terms;
(f) All Financial Statements heretofore furnished by the
Borrower to the Lenders, including any schedules and notes
pertaining thereto, were prepared in accordance with GAAP, and
fully and fairly presented the financial condition of the
Borrower and its Subsidiaries at the dates thereof and the
results of operations for the periods covered thereby, and as of
the date of this Amendment and Restatement there have been no
material adverse changes in the consolidated financial condition
or business of the Borrower and its Subsidiaries from the date of
the most recent Financial Statements furnished to the Lenders,
except as disclosed by Borrower to Agent in writing;
(g) Except as otherwise permitted by the Loan Agreement, the
Borrower and its Subsidiaries have filed all federal, state and
local tax returns and other reports they were required by Laws to
have filed prior to the date of this Amendment and Restatement
and which are material to the conduct of their respective
businesses, have paid or caused to be paid all taxes, assessments
and other governmental charges that were due and payable prior to
the date of this Amendment and Restatement, and have made
adequate provision for the payment of such taxes, assessments or
other charges accruing but not yet payable; and the Borrower has
no knowledge of any deficiency or additional assessment in a
materially important amount in connection with any taxes,
assessments or charges not provided for on its books;
(h) Except to the extent that the failure to comply would not
materially interfere with the conduct of the business of the
Borrower or any Subsidiary or have a materially adverse effect on
the financial condition of the Borrower or any Subsidiary, the
Borrower and its Subsidiaries have complied with all applicable
Laws in respect of: (1) restrictions, specifications, or other
requirements pertaining to products that the Borrower or any
Subsidiary grows, manufactures or sells or to the services each
performs; (2) the conduct of their respective businesses; and (3)
the use, maintenance, and operation of the real and personal
properties owned or leased by them in the conduct of their
respective businesses;
(i) There are no chemical substances, pollutants, contaminants
or hazardous or toxic substances, materials or wastes
(collectively, "hazardous materials") at any premises owned,
leased, operated, controlled or used by the Borrower or any of
the Subsidiaries where such could reasonably be expected to have
a materially adverse effect on the operations or financial
condition of the Borrower and the Subsidiaries or the Borrower's
ability to repay the Loans, and the Borrower and the Subsidiaries
do not manufacture, process, distribute, use, treat, store,
dispose of, transport or handle hazardous materials in such a
manner as to create expectations of such a materially adverse
effect on the operations or financial condition of the Borrower
and the Subsidiaries or the Borrower's ability to repay the
Loans;
(j) The Borrower has no Subsidiaries other than those listed in
Exhibit H, attached hereto;
(k) No litigation or other proceeding is pending or threatened
against the Borrower or any of its Subsidiaries or any of their
respective properties which if determined adversely to the
Borrower or any such Subsidiary, would have a materially adverse
effect on the Collateral or on the consolidated financial
condition or business prospects of the Borrower and its
Subsidiaries, except as disclosed by Borrower to Agent in
writing;
(l) Neither the execution of the Loan Agreement nor the
Borrower's use of proceeds of the Loans will constitute a
violation of any of Regulations G, T and U of the Board of
Governors of the Federal Reserve System or any interpretations
thereof or rulings thereunder;
(m) The Borrower and its Subsidiaries have good and marketable
title to all of their respective assets, subject only to such
exceptions or encumbrances as do not materially adversely affect
either the consolidated financial conditions of the Borrower and
its Subsidiaries as currently reflected in the Financial
Statements or the conduct of the businesses of the Borrower and
its Subsidiaries;
(n) All Defined Benefit Pension Plans, as defined in the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), of the Borrower and each Subsidiary meet the minimum
funding standards of 302 of ERISA, and no Reportable Event or
Prohibited Transaction, as defined in ERISA, has occurred in
respect of any such Plan;
(o) No representation or warranty by the Borrower contained in
the Loan Agreement or in any certificate or other document
furnished by the Borrower pursuant to the Loan Agreement contains
any untrue statement of material fact or omits to state a
material fact necessary to make such representation or warranty
not misleading in light of the circumstances under which it was
made; and
(p) Neither the Borrower nor any Subsidiary is subject to
provisions of the Investment Company Act of 1940, provisions of
the Public Utility Holding Company Act of 1935, provisions of the
Interstate Commerce Act or provisions of any other statute or
regulation which restrict the execution or performance of this
Loan Agreement or the Notes by the Borrower.
4.2 Survival. All representations and warranties stated above in
Section 4.1 shall survive until all the obligations shall have
been satisfied in full.
V. The Borrower's Covenants
The Borrower covenants to and agrees with the Lenders that,
so long as any of the Obligations shall remain unsatisfied or any
commitments hereunder remain outstanding, the Borrower will
comply, and will cause its Subsidiaries to comply, with the
following covenants:
5.1 Affirmative Covenants.
(a) The Borrower will furnish to the Lenders, through the Agent:
(1) Within 60 days after the close of each quarterly accounting
period in each fiscal year: (i) a consolidated statement of Net
Worth and a consolidated statement of cash flow of the Borrower
and its Subsidiaries for such quarterly period; (ii) a
consolidated income statement of the Borrower and Subsidiaries
for such quarterly period; (iii) a consolidated balance sheet of
the Borrower and Subsidiaries as of the end of such quarterly
period; (iv) a certification by the Borrower's chief financial
officer, in reasonable detail, evidencing the Borrower's
compliance at the end of such quarterly accounting period with
the covenants contained in Sections 5.1 and 5.2 of the Loan
Agreement; (v) summary schedules of income and cash flow for the
Borrower's resort division and pineapple division, Napili Plaza
and Kaahumanu Center, all in reasonable detail, subject to year-
end audit adjustments and certified by the Borrower's President
or chief financial officer to have been prepared in accordance
with GAAP by the Borrower and Subsidiaries, except for any
inconsistencies explained in such certificate; and (vi) a written
summary (in reasonable detail) of all projects approved by the
Borrower or any of its Subsidiaries during such quarterly period
which are reasonably expected to involve Capital Expenditures
exceeding $1,000,000;
(2) Within 90 days after the close of each fiscal year: (i) a
consolidated statement of Net Worth and a consolidated statement
of cash flow of the Borrower and its Subsidiaries for such fiscal
year; (ii) a consolidated income statement of the Borrower and
Subsidiaries for such fiscal year; (iii) a consolidated balance
sheet of the Borrower and Subsidiaries as of the end of such
fiscal year (all of the aforementioned financial statements to be
audited and certified to without qualification by independent
certified public accountants selected by the Borrower); (iv)
summary schedules of income and cash flow for the Borrower's
resort division and pineapple division, Napili Plaza and
Kaahumanu Center; (v) detailed statements of Capital Expenditures
and Investments made or incurred in such fiscal year, all of the
foregoing to be in reasonable detail, including all supporting
schedules and comments; and (vi) a certification by the chief
financial officer of the Borrower, in reasonable detail,
evidencing the Borrower's compliance at the end of such fiscal
year with the covenants contained in Sections 5.1 and 5.2 of this
Loan Agreement;
(3) By December 1 of each year, (i) copies of the Borrower's
three-to-five year, summary forecast of income and cash flow for
the Borrower's resort division and pineapple division, Napili
Plaza and Kaahumanu Center, and (ii) a Capital Expenditure and
Investment forecast for each such division;
(4) Promptly after the sending or making available or filing of
the same, copies of all reports, proxy statements and financial
statements that the Borrower sends or makes available to its
stockholders and all registration statements and reports that the
Borrower files with the Securities and Exchange Commission or any
successor Person; and
(5) Within 60 days following the close of each quarterly period,
statements of KCA's net worth at the end of such period and cash
flow for such period, KCA's income statement for such period, and
KCA's balance sheet as of the end of such period, in reasonable
detail, certified to by KCA's chief financial officer.
(b) The Borrower and its Subsidiaries will maintain their real
estate and other properties in good condition and repair (normal
wear and tear excepted), and will pay and discharge or cause to
be paid and discharged when due, the cost of repairs to or
maintenance of the same, and will pay or cause to be paid all of
their indebtedness as it becomes due, except as otherwise
permitted by Section 5.1(d) of the Loan Agreement.
(c) The Borrower and its Subsidiaries will maintain, or cause to
be maintained, public liability insurance and fire and extended
coverage insurance on all assets owned or leased by them, all in
such form and amounts as are consistent with industry practices.
The Borrower and its Subsidiaries may procure any such insurance
from any insurance company or companies authorized to do business
in Hawaii.
(d) The Borrower and its Subsidiaries will pay or cause to be
paid when due, all taxes, assessments and charges or levies
imposed upon them or on any of their property or which any of
them is required to withhold and pay over, except where contested
in good faith by appropriate proceedings with adequate reserves
therefor having been set aside on their books, and the Borrower
will pay all governmental charges or taxes (except income,
franchise or similar taxes) at any time payable or ruled to be
payable in respect of the existence, execution or delivery of the
Loan Agreement and the Notes by reason of any existing or
hereafter enacted federal or state statute.
(e) The Borrower will maintain as of the end of each fiscal
quarter and will provide evidence of the same pursuant to Section
5.1(a) hereof:
(1) A Current Ratio of not less than 1.90;
(2) A Recourse Debt/Net Worth Ratio of not more than 1.10 (for
the purposes of this covenant, any KCA debt which is nonrecourse
to the Borrower, shall be disregarded); and
(3) A Net Worth of not less than $58,300,000.00, plus 50% of the
cumulative net profits after September 30, 1997 (but not the net
losses) of Borrower.
(f) The Borrower and its Subsidiaries will, when requested so to
do, make available for inspection by the Agent's duly authorized
representatives any of their properties and Records, and will
furnish to the Lenders (through the Agent) any information
regarding their business affairs and financial condition within a
reasonable time after written request therefor.
(g) The Borrower and its Subsidiaries will take all necessary
steps to preserve their respective corporate existences and to
comply with all present and future Laws applicable to them in the
operation of their respective businesses and to comply with all
material agreements to which they are subject (the foregoing to
the contrary notwithstanding, the Borrower shall have the right
to dissolve or liquidate such of its Subsidiaries as its
management may determine to dissolve or liquidate in the exercise
of sound business judgment).
(h) The Borrower will give immediate written notice to the
Agent, in reasonable detail, of the occurrence of any event in
respect of which a report on Form 8-K should be filed by the
Borrower with the Securities and Exchange Commission.
(i) The Borrower will notify the Agent immediately if the
Borrower becomes aware of the occurrence of any Event of Default
under this Loan Agreement or of any fact, condition or event that
only with the giving of notice or passage of time, or both, could
become such an Event of Default, or of the failure of the
Borrower or any Subsidiary to observe any of their respective
undertakings under this Loan Agreement.
(j) The Borrower and its Subsidiaries will: (i) fund all their
Defined Benefit Pension Plans in accordance with no less than the
minimum funding standards of 302 of ERISA; and (ii) promptly
advise the Agent of the occurrence of any Reportable Event or
Prohibited Transaction in respect of any such Plan.
(k) If the Borrower or any of its Subsidiaries, during the Term
Loan Period, or during the continuance of an Event of Default, or
at any other time following the Agent's notification to the
Borrower that the provisions of this Section 5.1(k) shall be
operative, sell real estate assets worth more than $1,000,000, in
a single transaction or in a series of related transactions, the
Borrower will apply 75% of the net cash proceeds of the sale(s),
after applicable income taxes arising out of the sale(s), to the
repayment of the Loans promptly upon receipt of such net sales
proceeds in cash.
(l) The Borrower will pay to the Agent, on (or at the Borrower's
option before) July 1 of each year, a $15,000 Agent's Fee for
services rendered and to be rendered by the Agent with respect to
the Original Facility.
(m) With respect to any contract or job, for an amount that
exceeds $500,000, financed with the proceeds of the Village
Course Facility, or a series of contracts or jobs with any one
contractor for an amount that exceeds $500,000 in the aggregate,
financed with the proceeds of the Village Course Facility,
Borrower will obtain, maintain and deliver to the Lenders
(through the Agent) performance and payment bonds in form, amount
and issued by a surety acceptable to a Majority in Interest of
the Lenders, naming the Borrower, the Lenders and the Agent as
obligees.
(n) Borrower will use the proceeds of the Village Course
Facility exclusively to finance improvements to the Village Golf
Course at Kapalua, Maui, Hawaii, including the construction of a
new clubhouse, practice facility, golf teaching academy and
putting course, reconstruction of the 18th hole, realignment of
Village Road and construction of two commercial building pads.
(o) Borrower will retain at all times not less than a 5O%
general partnership interest in KCA.
5.2 Negative Covenants.
(a) Neither the Borrower nor any Subsidiary will enter into any
merger, consolidation, reorganization or recapitalization, or
reclassify its capital stock, or substantially change the nature
of its business as now conducted, except that (1) any wholly-
owned Subsidiary may merge with any other Subsidiary provided
said wholly-owned Subsidiary is the surviving entity, (2) any
Subsidiary may merge with the Borrower provided the Borrower is
the surviving entity, and (3) the Borrower and any wholly-owned
Subsidiary may make contributions to the capital of, and receive
dividends from, wholly-owned Subsidiaries.
(b) Neither the Borrower nor any Subsidiary will sell, transfer,
lease or otherwise dispose of all or (except in the ordinary
course of business as now conducted) any material part of its
assets unless, in respect of such sale or other disposition, the
Borrower shall have complied with all applicable requirements
stated above in Section 5.1(k) of the Loan Agreement.
(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 and Lenders shall have
received, prior to any declaration or payment of cash dividends,
the Borrower's audited annual financial statements for the fiscal
year, the Borrower may declare and pay cash dividends for and in
respect of any fiscal year of the Borrower, in an amount not to
exceed 30% of its Net Profits for such fiscal year.
(d) Neither the Borrower nor any Subsidiary will make any
Capital Expenditure that is not approved in writing by Lenders
that causes Borrower to exceed (on an aggregated basis) the
following Capital Expenditure limits: $10,800,000 for fiscal year
1998; $11,500,000 for fiscal year 1999; and $10,000,000 for each
fiscal year thereafter. Capital Expenditures for work at the
Village Course at Kapalua (described in Section 5.1(n)) shall not
be counted towards such Capital Expenditure limits. Capital
Expenditures for the Site 29 Project of up to $1,000,000 in the
aggregate or that are approved in writing by Lenders shall not be
counted towards such Capital Expenditure limits.
(e) The Borrower will not redeem, purchase or retire any of its
capital stock, except that the Borrower may redeem, purchase or
retire shares of its capital stock with funds which could have
been, but were not, used for the payment of cash dividends
pursuant to the provisions of Section 5.2(c) of the Loan
Agreement (subject to the limitations therein set forth).
(f) Neither the Borrower nor any Subsidiary will furnish to any
of the Lenders or the Agent any certificate or other document
that will contain any untrue statement of material fact or that
will omit to state a material fact necessary to make it not
misleading in light of the circumstances under which it was
furnished.
(g) Neither the Borrower nor any Subsidiary will directly or
indirectly apply any part of the proceeds of any of the Loans to
the purchasing or carrying of any "margin stock" within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System, or any regulations, interpretations or rulings
thereunder.
(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 Borrowed Money (recourse or nonrecourse) other
than the indebtedness evidenced by the Notes and the Loan
Agreement and additional indebtedness which, together with the
Loan and the indebtedness evidenced by the Notes and the Loan
Agreement, shall cause Total Debt to exceed $62,000,000.00. For
the purposes of this Section 5.2(h), any KCA debt which is
nonrecourse to the Borrower, including that portion subject to
Borrower's Limited Payment Guaranty, shall not be deemed to
constitute indebtedness of the Borrower or any Subsidiary. As
used herein, "Borrower's Limited Payment Guaranty" means any
guaranty of the Borrower guarantying payment of indebtedness of
KCA relating to the Kaahumanu Shopping Center.
(i) Neither the Borrower nor any Subsidiary, without the prior
written consent of all of the Lenders, will hypothecate, pledge,
mortgage, grant a security interest in or otherwise encumber (or
permit to be encumbered) any of its assets now owned or hereafter
acquired, otherwise than in the ordinary course of the business
of the Borrower or such Subsidiary (for purposes of this Section
5.2(i), encumbrances incurred or created in the ordinary course
of business shall be deemed to include (1) liens for taxes and
governmental (or quasi-governmental) assessments or similar
charges that are not yet due and payable, (2) pledges or deposits
to secure payment of workers' compensation or to participate in
any fund established under workers' compensation, unemployment
insurance, pensions or similar social security programs, (3)
liens of mechanics, materialmen, warehousemen, carriers or other
similar liens that are not yet due and payable, (4) good faith
pledges or deposits made to secure performance of bids, tenders,
contracts (other than for the repayment of borrowed money),
leases, statutory obligations, or surety, appeal, indemnity,
performance or similar bonds required in the ordinary course of
business, not exceeding at any one time outstanding $1,000,000
for all such pledges or deposits in the aggregate for the
Borrower and its Subsidiaries, (5) retained liens or security
instruments of equipment lessors on equipment leased under
equipment leases permitted by the Loan Agreement, (6) retained
liens or security interests of equipment vendors or equipment
financing lenders with respect to equipment purchased on time by
the Borrower or its Subsidiaries, and (7) liens and security
interests held by lenders in respect of the mortgage loans
described in Exhibit I attached to the Original Loan Agreement).
VI. Default
6.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default under the
Loan Agreement and the Notes:
(a) The Borrower shall fail to pay when due any principal or
interest or fee or other charge payable under the Loan Agreement
or any of the Notes and such failure shall continue for a period
of five (5) Business Days.
(b) The Borrower or any Subsidiary shall fail to observe or
perform any other obligation to be observed or performed by it
under the Loan Agreement, any of the Notes or other Loan
Documents, and such failure shall continue for 30 days after: (1)
notice of such failure from the Agent; or (2) the Agent is
notified of such failure or should have been so notified pursuant
to the provisions of Section 5.1(i) of the Agreement, whichever
is earlier.
(c) Any financial statement, other statement, representation,
warranty or certificate made or furnished by the Borrower or any
Subsidiary to any of the Lenders or the Agent in connection with
the Loan Agreement, or as an inducement to the Lenders or the
Agent to enter into the Loan Agreement, or in any separate
statement or document delivered pursuant to the provisions of the
Loan Agreement, shall be materially false, incorrect, or
incomplete when made or delivered.
(d) The Borrower or any Subsidiary shall admit its inability to
pay its debts as they mature, or shall make an assignment for the
benefit of any of its creditors.
(e) A decree or order for relief shall be entered by a court
having jurisdiction in respect of the Borrower or any Subsidiary
in an involuntary case under the federal Bankruptcy Code or any
other applicable federal or state bankruptcy, insolvency or
similar law, or a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) shall be appointed
for the Borrower or any Subsidiary or for any substantial part of
its property, and any such decree or order shall continue
unstayed and in effect for a period of 60 consecutive days.
(f) The Borrower or any Subsidiary shall commence a voluntary
case under the federal Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or similar law, or the
Borrower or any Subsidiary shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of the
Borrower or any Subsidiary or any substantial part of its
property.
(g) The Borrower or any Subsidiary (i) shall have failed to pay
at its stated due date any Indebtedness for Borrowed Money in
excess of $1,000,000 in the aggregate (other than indebtedness
evidenced by the Notes) and such failure shall have continued
beyond any applicable grace period, or (ii) shall have failed to
observe or perform any term, covenant or provision contained in
any agreement or instrument (other than the Loan Agreement or the
Notes) by which it is bound, evidencing or securing or otherwise
relating to any Indebtedness for Borrowed Money in excess of
$1,000,000 in the aggregate, and the effect thereof shall have
been the acceleration of the maturity of said indebtedness by the
holder or holders thereof or of any obligations issued in respect
thereof or by a trustee or trustees acting on behalf of such
holder or holders.
(h) A final judgment which alone or with other outstanding final
judgments against the Borrower or any Subsidiary exceeds
$3,000,000 in the aggregate and (i) such judgment shall not be
discharged or fully bonded against within 60 days, or (ii) within
60 days after entry of such judgment, execution shall not be
stayed pending appeal, or (iii) such judgment shall not be
discharged within 60 days after expiration of any such stay.
6.2 Rights and Remedies. If an Event of Default shall occur and
be continuing the Lenders shall have, in addition to any and all
other rights and remedies, legal or equitable, available to the
Lenders under any and all of the Loan Documents or at law, the
following additional rights and remedies:
(a) The absolute right to deny to the Borrower any further
disbursements of Loan proceeds (the Lenders, obligation to extend
any further credit to the Borrower shall immediately terminate);
(b) The right, at the option of the Lenders, to declare, without
notice, the entire principal amount and accrued interest for all
Loans outstanding under this Loan Agreement, plus any fees and
charges reasonably incurred by the Agent and/or the Lenders under
any of the Loan Documents, immediately due and payable; and
(c) The right, at the option of the Lenders, to charge interest
on any principal amount outstanding under this Agreement at a
rate per annum equal to one and one-half percentage points
(1.50%) plus the rate of interest otherwise in effect (the
"Default Rate");
(d) The right to the ex parte appointment without bond of a
receiver, without regard to the value of any collateral or
solvency of any party liable for payment, observance or
performance of any of the obligations of the Borrower or any
other obligors, owing to the Lenders under or pursuant to the
Loan Documents; and
(e) The Agent and the Lenders may exercise any and all other
rights and remedies, legal or equitable, available to the Agent
and/or the Lenders under the Notes and under any and all of the
other Loan Documents or at law or in equity.
VII. Miscellaneous
7.1 Further Assurance. From time to time, the Borrower, the
Lenders and the Agent will execute and deliver such additional
documents and provided such additional information as may be
reasonably required to carry out the intent of this Loan
Agreement. Without limitation of the foregoing, Lenders may make
reasonable requests for status reports on the progress of the
improvements to the Village Golf Course at Kapalua, Maui.
7.2 Appraisals. Although the Lenders have not required that any
appraisal of the properties encumbered by the Mortgage or
Additional Security Mortgage (collectively, the "Mortgaged
Properties") be furnished as a condition precedent to the first
disbursement of Loan proceeds, the Lenders reserve the right to
obtain at the Borrower's expense (and the Borrower agrees to pay
all costs of) appraisals of the Mortgaged Properties, from any
licensed or certified appraiser designated by the Lenders, from
time to time, whenever such appraisals may be (a) required by any
law, rule or regulation applicable to the conduct of any Lender's
business, (b) requested or directed by any governmental authority
charged with the administration of such law, rule or regulation
or any Lender's compliance therewith, whether or not such request
or direction has the force of law, or (c) when reasonably deemed
appropriate by the Lenders in their sole discretion (reappraisals
referred to in this clause (c) shall not be required more
frequently than annually).
7.3 Enforcement and Waiver by the Lenders. The Lenders, or the
Agent on behalf of the Lenders, shall have the right at all times
to enforce the provisions of the Loan Documents, as they may be
amended from time to time, in strict accordance with their
respective terms, notwithstanding any conduct or custom on the
part of any of the Lenders or the Agent in refraining from so
doing at any time or times. The failure of the Lenders or the
Agent at any time or times to enforce their rights under such pro
visions, strictly in accordance with the same, shall not be
construed as having created a custom in any way or manner
contrary to specific provisions of the Loan Documents or as
having in any way or manner modified or waived the same. No
single or partial exercise of any right by any Lender or the
Agent shall preclude the further or other exercise thereof. All
rights and remedies of the Lenders and Agent are cumulative and
concurrent and the exercise of one right or remedy shall not be
deemed a waiver or release of any other right or remedy.
7.4 Expenses of the Lenders and Agent. The Borrower will, on
demand, reimburse to the Lenders and the Agent all reasonable
expenses, including the reasonable fees and expenses of legal
counsel for the Lenders and the Agent, incurred by any of the
Lenders or the Agent in connection with the negotiation,
preparation, administration, amendment, modification, waiver,
and/or enforcement of the Loan Documents and the collection or
attempted collection of the indebtedness evidenced by the Loan
Documents, or any of them including but not limited to bankruptcy
or reorganization proceedings.
7.5 Notices. Any notices or consents required or permitted by
this Loan Agreement or the other Loan Documents shall be in
writing and may be delivered in person or sent by United States
mail or by telecopy and shall be deemed delivered when delivered
in person or when deposited in the United States mail, certified,
postage prepaid, return receipt requested, or when sent during
normal business hours at the place of receipt and the receipt of
which is confirmed in writing if by telecopy, to the address of
the parties as follows, unless such address is changed by written
notice hereunder:
(A) If to the Borrower:
MAUI LAND & PINEAPPLE COMPANY, INC.
ATTN: Xx. Xxxx X. Xxxxx
Executive Vice President/Finance
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
PHONE: (000) 000-0000
FAX: (000) 000-0000
(B) If to the Lenders, in care of the Agent:
BANK OF HAWAII
ATTN: Xx. Xxxxx X. Xx, Vice President
Corporate Banking Hawaii
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
PHONE: (000) 000-0000
FAX: (000) 000-0000
7.6 Waiver and Release by the Borrower. To the maximum extent
permitted by applicable law, the Borrower:
(a) Waives notice and opportunity to be heard, after
acceleration of the indebtedness evidenced by the Loan Documents,
before exercise by the Agent or other Lenders of the remedy of
setoff or of any other remedy or procedure permitted by any
applicable law or by any prior agreement with the Borrower, and,
except where specifically required by this Loan Agreement or by
any applicable law, notice of any other action taken by the Agent
or any other Lender;
(b) Waives presentment, demand for payment, notice of dishonor,
and any and all other notices or demands in connection with the
delivery, acceptance, performance, or enforcement of this Loan
Agreement, and consents to any extension of time (and even
multiple extensions of time for longer than the original term),
renewals, releases of any person or organization liable for the
payment of the obligations under this Loan Agreement, and waivers
or modifications or other indulgences that may be granted or
consented to by the Agent and the Lenders in respect of the Loans
evidenced by this Loan Agreement; and
(c) Releases the Agent and the Lenders and their respective
officers, agents, and employees from all claims for loss or
damage caused by any act or omission on the part of any of them
except willful misconduct.
7.7 Disclosure of Information. The Borrower consents to the
Agent's or any Lender's disclosure to the other Lenders or the
Agent of any information held by the disclosing entity from time
to time, financial or otherwise, pertaining in any way to the
creditworthiness or other condition of the Borrower or any
Subsidiary. The Agent and Lenders agree that they shall maintain
confidentiality with regard to nonpublic information concerning
the Borrower and Subsidiaries obtained from the Borrower,
provided that the Agent and Lenders shall not be precluded from
making disclosure regarding such information: (a) on a
confidential basis, to their own respective counsel, accountants
and other professional advisors, (b) in response to a subpoena or
order of a court of governmental agency, (c) on a confidential
basis, to any entity participating or considering participating
in any credit made under this Loan Agreement, (d) on a
confidential basis to any guarantor or subordinated lender with
respect to this Loan Agreement or (e) as required by law or
applicable regulation.
7.8 Applicable Law. The substantive Laws of the State of Hawaii
shall govern the construction of this Loan Agreement and the
Notes and the rights and remedies of the parties hereto and
thereto.
7.9 Binding Effect and Entire Agreement. This Loan Agreement
shall inure to the benefit of, and shall be binding on, the
parties hereto and the respective successors and permitted
assigns of the parties hereto. This Loan Agreement, and the
remainder of the Loan Documents, together with all other
documents executed and delivered pursuant to this Loan Agreement,
constitute the entire agreement among the Lenders, the Agent and
the Borrower concerning the subject matter hereof.
7.10 Amendments; Consents. No amendment, modification,
supplement, termination, or waiver or forbearance of any
provision of this Loan Agreement or any of the other Loan
Documents, and no consent to any departure by the Borrower
therefrom, may in any event be effective unless in writing signed
by a Majority in Interest of the Lenders and the Agent, and then
only in the specific instance and for the specific purpose given;
provided, however, that no action shall be taken which has the
effect of altering any required payment of principal, interest or
fees, or releasing any collateral security for the Loans, unless
in writing signed by all of the Lenders and the Agent.
7.11 Assignments.
(a) The Borrower shall have no right to assign any of its rights
or obligations under any of the Loan Documents without the prior
written consent of the Lenders.
(b) None of the Lenders shall assign any of its rights or
obligations under the Loan Documents without the prior written
consent of the Borrower, which consent shall not be unreasonably
withheld or delayed; provided, however, the foregoing provision
to the contrary notwithstanding, (a) any of the Lenders may sell
participations in Loans made or to be made by it, to any entity
affiliated with such Lender, without Borrower's consent, so long
as such Lender remains primarily obligated to the Borrower under
this Loan Agreement and so long as the Borrower shall not be
obligated in any manner to deal directly with the affiliated
purchaser of such participation, and (b) any Lender may
negotiate, pledge, transfer or assign the Notes held by it (or
the receivable evidenced thereby) to a Federal Reserve Bank or to
any other agency or instrumentality of the United States of
America to support borrowings of Federal funds by such Lender.
(c) Subject to the foregoing restrictions, the Borrower consents
to each Lender's negotiation, offer, and sale to third parties
("Participants") of the credit facility evidenced by the Loan
Documents (the "Credit Facility") or participating interests in
the Credit Facility, to any and all discussions and agreements
heretofore or hereafter made between each Lender and any
Participant or prospective Participant regarding the interest
rate, fees, and other terms and provisions applicable to the
Credit Facility, and to each Lender's disclosure to any
Participant or prospective Participant, from time to time, of
such financial and other information pertaining to the Borrower
and the Credit Facility as any Lender and such Participant or
prospective Participant may deem appropriate (whether public or
non-public, confidential or non-confidential, and including
information relating to any insurance required to be carried by
the Borrower and any financial or other information bearing on
the Borrower's creditworthiness and the value of any collateral).
The Borrower acknowledges that the Lenders' disclosure of such
information to any Participant or prospective Participant
constitutes an ordinary and necessary part of the process of
effectuating and servicing the Credit Facility.
7.12 Release of Non-Golf Areas. In view of the fact that the
portion of the property subject to the Mortgage and the
Additional Security Mortgage, commonly known as the Bay Golf
Course (or the Bay Course) and Village Golf Course (or the
Village Course), has not been duly subdivided so as to constitute
one or more duly subdivided lots, the land descriptions of the
Bay Course and Village Course set forth or to be set forth in the
Mortgage and Additional Security Mortgage (the "Mortgages"),
include lands ("Excess Lands") in excess of the lands commonly
known to comprise the Bay Course and Village Course. The Lenders
agree that the Borrower shall have the right to subdivide the
lands initially described in the Mortgages as comprising the Bay
Course and Village Course, and to obtain releases of the Excess
Lands from the liens of the Mortgages, upon the following terms
and conditions: (a) the lot or lots to be released from the
Mortgages, comprising the Excess Lands, as well as the lot or
lots which are to remain subject to the Mortgages following the
release of the Excess Lands, shall have been designated as
specific lots approved by all governmental authorities having
jurisdiction over the subdivision thereof; (b) the costs of
subdivision and the costs of preparing the releases shall be
borne by the Borrower; (c) the form and content of each release
shall be acceptable to the Lenders; and (d) in connection with
any such release, appropriate provisions shall have been made for
access to and from, and utility and similar easements for, any
lot or lots not to be released from the Mortgages. Within
fifteen days after the Lenders' declaration of an Event of
Default and of their intention to foreclose the Mortgages, the
Borrower shall commence, and thereafter diligently pursue to
completion, any subdivision necessary to accomplish the purposes
of this Section 7.12, so as to enable the Lenders to foreclose
the Mortgages against all the Collateral, while releasing to the
Borrower the Excess Lands. In the event the Borrower shall not
commence such subdivision within said fifteen-day period, or
thereafter diligently pursue the subdivision to completion, the
Lenders shall be entitled at the Borrower's expense, and are
hereby appointed as the duly-appointed attorneys-in-fact of the
Borrower (with full power of substitution), to commence and/or
complete said subdivision. Said power of attorney is coupled
with an interest, and is irrevocable.
7.13 Right of Setoff; Security Interest in Accounts. If an Event
of Default shall have occurred and is continuing, the Agent and
each Lender may set off obligations owed by the Agent or such
Lender, as the case may be, to the Borrower (such as balances in
checking and savings accounts) against the obligations, without
first resorting to other collateral. To further secure the
Obligations, the Borrower grants to the Agent and the Lenders a
security interest in all checking, savings, and other deposit
accounts now or hereafter maintained by the Borrower with the
Agent or the Lenders.
7.14 Dispute Resolution. Any controversy or claim arising out of
or relating to the Loan Agreement or any of the other Loan
Documents shall, at the request of any party, be decided by
binding arbitration conducted in the State of Hawaii without a
judge or jury, under the auspices of the American Arbitration
Association or Dispute Prevention and Resolution, Inc. in
accordance with Chapter 658 of the Hawaii Revised Statutes and
the respective and applicable rules of the aforementioned
organizations. The arbitrator will apply any applicable statute
of limitations and will determine any controversy concerning
whether an issue is arbitrable. Judgment upon the arbitration
award may be entered in any court having jurisdiction. The
prevailing party will be entitled to recover its reasonable
attorney's fees and costs as determined by the arbitrator. This
agreement to arbitrate shall not limit or restrict the right, if
any, of any party to exercise before, during or following any
arbitration proceeding, with respect to any claim or controversy,
self-help remedies such as setoff, to foreclose a mortgage or
lien or other security interest in any collateral judicially or
by power of sale, or to obtain provisional or ancillary remedies
such as injunctive relief from a court having jurisdiction. Any
party may seek those remedies without waiving its right to submit
the controversy or claim in question to arbitration.
7.15 Severability. If any provision of any of the Loan Documents
shall be held invalid under any of the applicable Laws, such
invalidity shall not affect any other provision of any of the
Loan Documents that can be given effect without the invalid
provision, and, to this end, the provisions of the Loan Documents
are severable.
7.16 Section Headings. The titles of Sections appear herein as a
matter of convenience only, and shall not affect the construction
of the Loan Agreement or any provision hereof.
7.17 Survival of Certain Payment Obligations. The obligations of
the Borrower to indemnify the Lenders against, and pay and
reimburse to the Lenders, the costs and expenses referred to in
Section 7.4 of the Loan Agreement (a) shall survive the repayment
of the Loans and termination of the Loan Agreement to the extent
such losses, costs and expenses are specifically billed to the
Borrower within 60 days after full repayment of the Loans and
termination of this Agreement, and (b) shall not survive the
repayment of the Loans and termination of the Loan Agreement to
the extent of any such costs or expenses which are not
specifically billed to the Borrower within 60 days after full
repayment of the Loans and termination of the Loan Agreement.
7.18 Amendment and Restatement; Amendment of Loan Documents.
(a) On and as of the Effective Date, the Original Loan Agreement
shall be deemed amended and restated in its entirety by this
Amendment and Restatement, which shall supercede the terms and
provisions of the Original Loan Agreement and the First
Restatement with respect to all obligations from and after the
date of this Amendment and Restatement. The Borrower, the Lenders
and the Agent acknowledge and agree that this Amendment and
Restatement constitutes only an amendment and restatement of the
Original Loan Agreement, and in connection therewith, (1) nothing
herein is intended, nor shall it be construed, to constitute a
refinancing of the indebtedness under the Original Loan
Agreement, (2) all outstanding obligations under the Original
Loan Agreement and the "Loan Documents" referred to therein, as
amended, shall continue to be outstanding under this Amendment
and Restatement and the Loan Documents referred to herein and (3)
all Obligations owing from and after the Effective Date shall be
paid, performed and observed in accordance with the terms of this
Amendment and Restatement and the other Loan Documents, as so
amended restated and as may be further amended from time to time.
(b) The Borrower, the Lenders and the Agent agree that from and
after the Effective Date, all references to (1) the Original Loan
Agreement (including, without limitation, references to
"Revolving and Term Loan Agreement", the "Loan Agreement" or
"Agreement" or other defined terms) set forth in the Notes, the
Mortgage, the Environmental Indemnity Agreement, the Additional
Security Mortgage and any other Loan Documents, as amended, shall
mean the Original Loan Agreement, as amended and restated by the
First Restatement and by this Amendment and Restatement and as
may be further amended from time to time, (2) the Revolving
Notes, or any of them, shall mean such Revolving Note(s), as
heretofore amended, and as respectively amended by the Note
Modification Agreements and as may be further amended from time
to time and (3) any of the other Loan Documents shall mean such
Loan Documents, as heretofore amended, as amended and restated by
this Amendment and Restatement and as may be further amended from
time to time.
(c) All Exhibits, schedules and other attachments to the
Original Loan Agreement are hereby incorporated herein by
reference and, as amended hereby, shall be deemed to constitute
Exhibits, schedules and attachments to this Amendment and
Restatement.
7.19 Execution in Counterparts. This Amendment and Restatement
may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent
have duly executed this Amendment and Restatement, the execution
of this Amendment and Restatement by the Borrower constituting
(a) the personal certification of the persons signing this
Amendment and Restatement on behalf of the Borrower that, to the
best of their knowledge, the representations and warranties made
in Article IV of this Loan Agreement are true and correct as of
the date of this Amendment and Restatement, and (b) the
undertaking of such persons and of the Borrower that each request
for a disbursement of Loan proceeds, made pursuant to Section 2.3
of the Loan Agreement, shall constitute the Borrower's
affirmation and the personal affirmation on the part of the
persons making such request that, to the best of their knowledge
at the time of the making of any such request, (i) the
representations and warranties stated in Section 4.1 of the Loan
Agreement are true and correct, (ii) no Event of Default under
the Loan Agreement has occurred and is continuing, and (iii) no
event has occurred and is continuing that, with the giving of
notice or passage of time, or both, would become such an Event of Default.
MAUI LAND & PINEAPPLE COMPANY, INC.
By: /S/ XXXX X. XXXXXXX
Its President
By: /S/ XXXX X. XXXXX
Its Executive Vice President/Finance
BANK OF HAWAII, individually and as Agent
By: /S/ XXXXX XX
Its Vice President
FIRST HAWAIIAN BANK
By: /S/ XXX X. X. XXX
Its Vice President
CENTRAL PACIFIC BANK
By: /S/ XXXXXX X. XXXXXXXX
Its
EXHIBIT 1
PROMISSORY NOTE
$__________________ ____________________, 1998
The undersigned ("Borrower") promises to pay to the order of
________________ ("Bank") the principal amount of $____________
or so much thereof as shall have been disbursed by Bank and may
remain outstanding, together with interest on outstanding
balances of principal, in accordance with and under the terms of
that Revolving and Term Loan Agreement dated as of December 31,
1992, among Borrower, as "Borrower", Bank of America, National
Trust and Savings Association, Bank of Hawaii, First Hawaiian
Bank and Central Pacific Bank, as "Lenders", and Bank of Hawaii,
as "Agent", as amended by Amended and Second Restated Revolving
and Term Loan of even date, among Borrower, as "Borrower", Bank
of Hawaii, First Hawaiian Bank and Central Pacific Bank, as
"Lenders", and Bank of Hawaii, as "Agent", relating to, among
other things, the Village Course Facility therein described.
This Promissory Note evidences the Advances made by Bank to
Borrower under said Village Course Facility.
MAUI LAND & PINEAPPLE COMPANY,
INC.
By:
Its
By:
Its
Borrower
EXHIBIT 2
Notice of Borrowing/Conversion
DATE: , 19___
TO: Bank of Hawaii
Attn: Xx. Xxxxx X. Xx, Vice President
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
SUBJECT: Revolving and Term Loan Agreement dated as of December
31, 1992, among Borrower, as "Borrower", Bank of America,
National Trust and Savings Association, Bank of Hawaii, First
Hawaiian Bank and Central Pacific Bank, as "Lenders", and Bank of
Hawaii, as "Agent", as amended by Amended and Second Restated
Revolving Credit and Term Loan dated ________________, among
Borrower, as "Borrower", Bank of Hawaii, First Hawaiian Bank and
Central Pacific Bank, as "Lenders", and Bank of Hawaii, as
"Agent" (the "Agreement")
Pursuant to Sections 2.3 and 2.7 of the Agreement, the
Borrower hereby requests that a portion of the unpaid principal
balance of the:
_____ Revolving Loans
_____ Term Loan
_____ Village Course Facility
in the amount set forth below be designated the Type of Loan set
forth below and confirms the following instructions therefor
(capitalized terms not defined herein shall have the respective
meanings assigned in the Agreement):
Requested
Date:
Principal
Amount:
Base Rate Loan LIBOR Rollover
LIBOR Loan Conversion from Base Rate to LIBOR Loan
Conversion from LIBOR to Base Rate Loan
Interest Period (LIBOR Loans): ____30 ____60 ____ 90
____ 180 Days
The Borrower hereby certifies as follows:
1. The representations and warranties set forth in Article
IV of the Agreement are true and correct on and as of the date
hereto, provided that the representations and warranties set
forth in Section 4.1(f) of the Agreement shall be deemed to be
made with respect to the financial statements most recently
delivered to the Lenders pursuant to the Agreement.
2. As of the date hereof, no event has occurred and is
continuing that (a) constitutes an Event of Default under the
Agreement, or (b) with the giving of notice or passage of time,
or both, would constitute an Event of Default. The Borrower has
observed and performed all of the Borrower's covenants and other
agreements, and satisfied every condition, contained in the
Agreement and in the other Loan Documents, to be observed,
performed or satisfied by the Borrower.
MAUI LAND & PINEAPPLE COMPANY,
INC.
By:
Authorized Signatory
Borrower
EXHIBIT H
SUBSIDIARY LISTING
Maui Pineapple Company, Ltd.
Kapalua Land Company, Ltd.
Kapalua Water Company, Ltd.
Kapalua Waste Treatment Company, Ltd.
Honolua Plantation Land Company, Inc.
Kapalua Advertising Company, Ltd.
Kapalua Investment Company, Ltd.
Napili Plaza L.L.C.
Kapalua Realty Company, Ltd.
Royal Coast Tropical Fruit Company, Inc.
ANNEX IV
PROMISSORY NOTE
$__________________ ____________________
The undersigned ("Borrower") promises to pay to the order of
________________ ("Bank") the principal amount of $____________,
together with interest on outstanding balances of principal, in
accordance with and under the terms of that Revolving and Term
Loan Agreement dated as of December 31, 1992, among Borrower, as
"Borrower", Bank of America, National Trust and Savings
Association, Bank of Hawaii, First Hawaiian Bank and Central
Pacific Bank, as "Lenders", and Bank of Hawaii, as "Agent", as
amended by Amended and Second Restated Revolving and Term Loan
Agreement dated December 4, 1998, among Borrower, as "Borrower",
Bank of Hawaii, First Hawaiian Bank and Central Pacific Bank, as
"Lenders", and Bank of Hawaii, as "Agent", and as the same may
have been further amended ("Loan Agreement").
This Promissory Note evidences the Term Loan made by Bank to
Borrower under the Loan Agreement and constitutes one of the Term
Notes referred to in the Loan Agreement.
MAUI LAND & PINEAPPLE COMPANY,
INC.
By:
Its
By:
Its
Borrower
