Exhibit 10.4


 


FIRST MODIFICATION AGREEMENT


Secured Loan


 


THIS
FIRST MODIFICATION AGREEMENT (“Agreement”) dated as of September 17, 2010,
is entered into by and among MAUI LAND & PINEAPPLE COMPANY, INC.,
a corporation formed under the laws of the State of Hawaii (“Borrower”),
each of the financial institutions signatory to the Loan Agreement (as defined
below) (“Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells
Fargo”) as Administrative Agent under the Loan Agreement (in such capacity,
the “Administrative Agent”).


 


R E C I T A L S


 


A.            Pursuant to the terms of an
amended and restated loan agreement between Borrower and Lender dated October 9,
2009 (“Loan Agreement”), Lenders made certain credit accommodations to Borrower
in the maximum principal amount of Fifty Million and No/100ths Dollars (“Loan”).
The Loan is evidenced by promissory notes dated as of the date of the Loan
Agreement, executed by Borrower in favor of each Lender, in the aggregate
principal amount of the Loan (“Note”), and is further evidenced by the
documents described in the Loan Agreement as “Loan Documents.” The Note is
secured by, among other things, the Mortgage (as defined in Section 5
below).  All capitalized terms used
herein, which are not defined herein, shall have the meanings given to them in
the other Loan Documents.


 


B.            The Note, Mortgage, Loan
Agreement, this Agreement, the other documents described in the Loan Agreement
as “Loan Documents”, together with all modifications and amendments thereto and
any document required hereunder, are collectively referred to herein as the “Loan
Documents.”


 


C.            By this Agreement, Borrower,
Administrative Agent and Lenders intend to modify and amend certain terms and
provisions of the Loan Documents.


 


NOW,
THEREFORE, Borrower, Administrative Agent and Lenders agree as follows:


 


1.                            CONDITIONS
PRECEDENT. The following are conditions precedent to
Administrative Agent and Lenders’ obligations under this Agreement:


 


1.1                      If required by
Administrative Agent, receipt and approval by Administrative Agent of a date
down to the Title Policy and assurance acceptable to Administrative Agent,
including, without limitation, CLTA Endorsement No. 110.5, without
deletion or exception other than those expressly approved by Administrative
Agent in writing, that the priority and validity of the Mortgage has not been
and will not be impaired by this Agreement or the transactions contemplated
hereby;


 


1.2                      Receipt by
Administrative Agent of the executed originals of this Agreement, the short
form of this Agreement (if any) and any and all other documents and agreements
which are required by this Agreement or by any other Loan Document, each in
form and content acceptable to Administrative Agent;


 


1.3                      If required by
Administrative Agent, recordation in the Bureau of Conveyances of the State of
Hawaii of (i) the short form of this Agreement (if any), and (ii) any
other documents which are required to be recorded by this Agreement or by any
other Loan Document (if any);


 


1.4                      Reimbursement
to Administrative Agent by Borrower of Administrative Agent’s costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including, without limitation, title insurance costs,
recording fees, attorneys’ fees, appraisal, engineers’ and inspection fees and
documentation costs and charges, whether such services are furnished by
Administrative Agent’s employees or agents or by independent contractors
including, without limitation, a reconveyance fee of $65.00, a notary fee of
$10.00, and a UCC termination/amendment fee of $49.00;


 


1.5                      The
representations and warranties contained in this Agreement are true and
correct;


 


1.6                      Borrower shall
have paid to Administrative Agent (i) for the ratable benefit of Lenders a
modification fee equal to $45,000.00, and (ii) for the sole benefit of
Administrative Agent, certain other fees, each in the 


 


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amount and at the times as set forth in a separate
letter agreement between Borrower and Administrative Agent dated July 9,
2010;


 


1.7                      All conditions
precedent to the Bay Golf Course Release (as defined, and as such conditions
are set forth, in Section 3 below) have been satisfied; and


 


1.8                      All payments
due and owing to Administrative Agent and Lenders under the Loan Documents have
been paid current as of the effective date of this Agreement.


 


2.                            REPRESENTATIONS
AND WARRANTIES.  Borrower
hereby represents and warrants that no Default, Potential Default, breach or
failure of condition has occurred, or would exist with notice or the lapse of
time or both, under any of the Loan Documents (as modified by this Agreement)
and that all representations and warranties herein and in the other Loan
Documents are true and correct, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct on and as of
such earlier date), which representations and warranties shall survive
execution of this Agreement.


 


3.                            Bay
Golf Course Release. 
Administrative Agent shall, at Borrower’s request, release from the lien
of the Mortgage (the “Bay Golf Course Release”) the property described on Exhibit A
attached hereto (the “Bay Golf Course”); provided, however, that immediately
prior to or simultaneously with such partial release all of the following
conditions shall be satisfied:


 


(a)                       No Default or
Event of Default shall exist under the Loan Documents;


 


(b)                       Administrative
Agent shall have received any and all sums then due and owing under the Loan
Documents together with all escrow, closing and recording costs, the costs of
preparing and delivering such partial release and the cost of any title
insurance endorsements required by Administrative Agent, including, without
limitation, a CLTA and 111 endorsement;


 


(c)                        Administrative
Agent shall have received evidence reasonably satisfactory to Administrative
Agent that:  (i) the portion of the
Property to be reconveyed and the portion of the Property which shall remain
encumbered by the Mortgage are each legal parcels lawfully created in
compliance with all subdivision laws and ordinances and, at Borrower’s sole
cost, Administrative Agent shall have received any title insurance endorsements
to that effect requested by Administrative Agent; and (ii) that the
portion of the Property which shall remain encumbered by the Mortgage have the
benefit of all utilities, easements, public and/or private streets, covenants,
conditions and restrictions as may be necessary, in Administrative Agent’s
reasonable judgment, for the anticipated development and improvement thereof;


 


(d)                       Administrative
Agent shall have received evidence reasonably satisfactory to Administrative
Agent that any tax, bond or assessment which constitutes a lien against the Property
has been properly allocated between the portion of the Property to be
reconveyed and the portion of the Property which shall remain encumbered by the
Mortgage; and


 


(e)                        Administrative
Agent shall have received in immediately available funds for the ratable
benefit of the Lenders the Bay Golf Course Release Price.  As used herein, the “Bay Golf Course Release
Price” shall mean the sum of $20,000,000.00. 
The Bay Golf Course Release Price shall be applied for the ratable
benefit of the Lenders to reduce their respective Revolving Commitments (as
shown on Replacement Schedule 1 attached hereto and incorporated herein
by this reference).


 


Neither the acceptance of any payment nor the
issuance of any partial release by Administrative Agent shall affect Borrower’s
obligation to repay all amounts owing under the Loan Documents or under the
lien of the Mortgage on the remainder of the Property which is not reconveyed.


 


4.                            REPLACEMENT
SCHEDULE 1.  To reflect the
decrease in the Revolving Commitment of each Lender, Schedule 1 to the Loan
Agreement is replaced with Replacement Schedule 1 to this Agreement.  The Revolving Note delivered by Borrower to
each Lender is hereby amended to reduce the face principal amount of such Revolving
Note to the Revolving Commitment of such Lender shown on Replacement Schedule
1.  To the extent that giving effect to
such modified schedule requires a reallocation of outstanding Revolving Loans,
the Lenders agree that, 


 


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effective as of the date of this Amendment or on
such other date as the Lenders may agree in writing, Revolving Loans shall be
purchased and sold, as all though assignments were made in accordance with
Paragraph 12.6 of the Loan Agreement without regard to minimum amounts,
registration fees payable upon assignment or requirements for assignment and
assumptions agreements or other additional Loan Documents.


 


5.                            DEFINITION
OF MORTGAGE.  The definition
of “Mortgage” in the Loan Agreement is hereby amended to read as follows:


 


“‘Mortgage’ means the Fee and Leasehold Mortgage with Absolute
Assignment of Leases and Rents, Security Agreement and Fixture, dated as of November 13,
2007, and recorded on November 15, 2007, as Document No. 2007-199589
in the State of Hawaii, Bureau of Conveyances, executed by the Borrower and
Leasehold Mortgagor in favor of the Administrative Agent for its benefit and
the benefit of the Lenders, the Issuing Bank and each Specified Derivatives
Provider in form and substance satisfactory to the Administrative Agent as
amended from time to time, including, without limitation, pursuant to a
Memorandum of Second Modification Agreement Amending Mortgage, dated as of March 10,
2009 and recorded March 13, 2009 as Document Number 2009-038132 in the
State of Hawaii Bureau of Conveyances, and a Memorandum of Third Modification
Agreement Amending Mortgage, dated as of March 27, 2009 and recorded March 27,
2009 as Document Number 2009-046242 in the State of Hawaii Bureau of
Conveyances, a Memorandum of Amended and Restated Credit Agreement Amending
Mortgage, dated as of October 9, 2009 and recorded October 14, 2009
as Document Number 2009-157331 in the State of Hawaii Bureau of Conveyances,
and a Memorandum of First Modification of Restated Credit Agreement Amending Mortgage
dated as of even date herewith.”


 


6.                            LENDER
CONSENT.  Each Lender
hereby consents to the transactions contemplated hereby and the sale of the Bay
Golf Course and authorizes the Administrative Agent in its sole discretion to
execute and deliver all documents which are necessary and desirable to
accomplish same or as otherwise contemplated in connection with the sale of the
Bay Golf Course and/or under the Sale, Purchase and Escrow Agreement (the “Purchase
Agreement”) relating thereto dated on or about September 16, 2010 (the “Purchase
Transaction”) including, without limitation, a partial release of mortgage,
amendment to UCC financing statement, and the other documents and instruments
set forth on Exhibit B.  Each
Lender further consents to the execution and delivery by MLP and Leasehold
Mortgagor of the documents and instruments relating to the Purchase Transaction
pursuant to the terms of the Purchase Agreement.


 


7.                            FORMATION
AND ORGANIZATIONAL DOCUMENTS.  Borrower has previously delivered to Administrative
Agent all of the relevant formation and organizational documents of Borrower,
of the partners or joint venturers of Borrower (if any), and of all guarantors
of the Loan (if any), and all such formation documents remain in full force and
effect and have not been amended or modified since they were delivered to
Administrative Agent, except as disclosed to Administrative Agent in writing.
Borrower hereby certifies that: (i) the above documents are all of the
relevant formation and organizational documents of Borrower; (ii) they
remain in full force and effect; and (iii) they have not been amended or
modified since they were previously delivered to Administrative Agent.


 


8.                            NON-IMPAIRMENT.  Except as expressly provided herein, nothing
in this Agreement shall alter or affect any provision, condition, or covenant
contained in the Note or other Loan Document or affect or impair any rights,
powers, or remedies of Administrative Agent or Lenders, it being the intent of
the parties hereto that the provisions of the Note and other Loan Documents
shall continue in full force and effect except as expressly modified hereby.


 


9.                            MISCELLANEOUS.  The headings used in this Agreement are for
convenience only and shall be disregarded in interpreting the substantive provisions
of this Agreement.  Time is of the
essence of each term of the Loan Documents, including this Agreement. If any
provision of this Agreement or any of the other Loan Documents shall be
determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable, that portion shall be deemed severed from this Agreement and the
remaining parts shall remain in full force as though the invalid, illegal, or
unenforceable portion had never been a part thereof.


 


10.                     INTEGRATION;
INTERPRETATION. The Loan Documents, including this Agreement,
contain or expressly incorporate by reference the entire agreement of the
parties with respect to the matters contemplated therein and supersede all
prior negotiations or agreements, written or oral. The Loan Documents shall not
be modified except by written instrument executed by all parties. Any reference
to the Loan Documents includes any amendments, renewals or extensions now or
hereafter approved by Administrative Agent and Lenders in writing.


 


11.                     EXECUTION
IN COUNTERPARTS. To facilitate execution, this document may be
executed in as many counterparts as may be convenient or required. It shall not
be necessary that the signature of, or on behalf of, each 


 


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party, or that the signature of all persons required
to bind any party, appear on each counterpart. 
All counterparts shall collectively constitute a single document.  It shall not be necessary in making proof of
this document to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the parties
hereto. Any signature page to any counterpart may be detached from such
counterpart without impairing the legal effect of the signatures thereon and
thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.


 


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IN
WITNESS WHEREOF, Borrower, Administrative Agent and Lenders have caused this
Agreement to be duly executed as of the date first above written.


 


	
   

  	
  “ADMINISTRATIVE AGENT AND LENDER”

  
	
   

  	
   

  
	
   

  	
  WELLS
  FARGO BANK,

  
	
   

  	
  NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  JEFF JOHNSON

  
	
   

  	
  Name:

  	
  Jeff
  Johnson

  
	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  “LENDER”

  
	
   

  	
   

  
	
   

  	
  AMERICAN
  SAVINGS BANK, F.S.B.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  W RUSSELL

  
	
   

  	
  Name:

  	
  W.
  Russell

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “LENDER”

  
	
   

  	
   

  	
   

  
	
   

  	
  AMERICAN
  AGCREDIT, PCA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  DENNIS P. REGLI

  
	
   

  	
  Name:

  	
  Dennis
  P. Regli

  
	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  “BORROWER”

  
	
   

  	
   

  	
   

  
	
   

  	
  MAUI
  LAND & PINEAPPLE COMPANY, INC., a

  
	
   

  	
  Hawaii
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  RYAN CHURCHILL

  
	
   

  	
  Name:

  	
  Ryan
  Churchill

  
	
   

  	
  Title:

  	
  President &
  COO

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  TIM T. ESAKI

  
	
   

  	
  Name:

  	
  Tim
  T. Esaki

  
	
   

  	
  Title:

  	
  CFO

  



 


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