Exhibit 10.2


 


Loan No. 0426195000


 


FIFTH AMENDMENT TO

REVOLVING LINE OF CREDIT LOAN AGREEMENT


 


This Fifth Amendment to Revolving Line of Credit
Loan Agreement (this “Amendment”)
is entered into by and between American AgCredit, FLCA (“Lender”) and Maui Land &
Pineapple Company, Inc., a Hawaii corporation (“Borrower”), to be effective as of October 9,
2009 (the “Effective Date”).


 


RECITALS


 


A.   Borrower and Lender are parties to a Revolving
Line of Credit Loan Agreement dated September 1, 2005 and amended by a
First Amendment dated as of December 4, 2006, a Second Amendment dated as
of September 30, 2008, a Third Amendment dated as of December 31,
2008, and a Fourth Amendment dated as of December 31, 2008 (as
it may be further amended, restated, modified or supplemented from time to time, the “Credit Agreement”).  (Capitalized terms used
but not otherwise defined in this Amendment shall have the meanings given to
them in the Credit Agreement.)


 


B.   Borrower
has requested that Lender agree to modify certain terms of the Credit
Agreement.  Lender is willing to do so on
the terms and conditions set forth in this Amendment.


 


Accordingly
the parties agree as follows:


 


1.                                       Conditions Precedent.  The
modification provided for herein is hereby granted provided that the following
conditions precedent are satisfied by a date acceptable to Lender in its sole
discretion:


 


1.1                                 Lender shall have received
one or more counterparts of this Amendment duly executed and delivered by
Borrower and each Guarantor.


 


1.2                                 All of the representations
and warranties contained in the Credit Agreement shall continue to be true and
correct and remain in full force and effect as of the date of this Amendment.


 


1.3                                 Borrower shall have paid to
Lender a fee (the “Amendment Fee”)
in the amount of $125,000.00.  The
Amendment Fee shall be considered fully earned and non-refundable upon its
receipt by Lender and no portion thereof shall be refundable to Borrower under
any circumstances.


 


Notwithstanding
the date on which the above conditions have been satisfied, the interest
changes provided for in this Amendment shall be deemed to have become effective
as of October 1, 2009 and the new interest rates set forth in this
Amendment shall be effective retroactively to October 1, 2009.


 


2.                                       Amendments.  Provided that
the conditions specified in Section 1 of this Amendment have been
satisfied, the Credit Agreement shall be modified and amended as follows:


 


2.1                                 Amended and Restated
Definitions.  The
following definitions set forth in Section 1 of the Agreement are hereby
amended and restated to read as follows:


 


“Applicable
Spread” shall mean 4.25%.


 


“Base
Rate” shall mean the LIBOR Market Index Rate.


 


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“Cash
Equivalents” shall mean (a) securities issued, guaranteed or insured by
the United States of America or any of its agencies with maturities of not more
than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, or a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, acting through a branch or agency, which bank
has capital and unimpaired surplus in excess of $500,000,000 and which bank or
its holding company has a short-term commercial paper rating of at least A-2 or
the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (c) reverse
repurchase agreements with terms of not more than seven days from the date
acquired, for securities of the type described in clause (a) above and
entered into only with commercial banks having the qualifications described in
clause (b) above; (d) commercial paper issued by any Person
incorporated under the laws of the United States of America or any State
thereof and rated at least A-2 or the equivalent thereof by S&P or at least
P-2 or the equivalent thereof by Moody’s, in each case with maturities of not
more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, as amended,
which have net assets of at least $500,000,000 and at least 85% of whose assets
consist of securities and other obligations of the type described in clauses (a) through
(d) above.


 


“GAAP”
shall mean United States generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.


 


“Permitted
Encumbrances” shall mean the following encumbrances: (i) Liens for taxes
or assessments or other governmental charges or levies, either not yet due and
payable or to the extent that nonpayment thereof is permitted by the terms of
this Agreement; (ii) pledges or deposits securing obligations under
workmen’s compensation, unemployment insurance, social security or public
liability laws or similar legislation; (iii) pledges or deposits securing
bids, tenders, contracts (other than contracts for the payment of money) or
leases to which Borrower or any Guarantor is a party as lessee made in the
ordinary course of business; (iv) workers’, mechanics’, suppliers’ or
similar Liens arising in the ordinary course of business that are either not
yet due and payable or that are being contested in good faith by appropriate
proceedings and for which Borrower or any Guarantor has established adequate
reserves; (v) carriers’, warehousemen’s, or other similar possessory Liens
arising in the ordinary course of business; (vi) an attachment or judgment
Lien, but only for a period of thirty (30) days following attachment of such
Lien and such attachment or judgment lien shall cease to be a Permitted
Encumbrance if the obligation that it secures has not been satisfied or bonded
during such thirty (30) day period; (vii) zoning restrictions, easements,
licenses, or other restrictions on the use of real property or other minor
irregularities in title (including leasehold title) thereto, so long as the
same do not materially impair the use, value, or marketability of such real
property, leases or leasehold estates; (viii) Liens securing indebtedness
owed by a Subsidiary to Borrower; (ix) security interests securing
purchase money indebtedness in capital assets, the acquisition of which is
permitted by this Agreement, and so long as the security interest does not
encumber any asset other than the asset acquired; (x) any Lien listed as a
Permitted Encumbrance on the Disclosure Schedule referred to in Exhibit A
to the Fifth Amendment; and (xi) the 


 


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refinancing
of the real property mortgages referred to in the Disclosure Schedule referred
to in Exhibit A to the Fifth Amendment, provided that such refinancing
covers the same property covered by the original mortgages, secures a principal
amount not in excess of that secured by such mortgages on the date of
refinancing, and the terms of such refinancing have all been negotiated at arms
length and are on fair market terms..


 


2.2                                 New Definitions.  The following definitions are hereby added to
Section 1 of the Agreement:


 


“Capitalized
Lease Obligation” shall mean obligations under a lease (to pay rent or other
amounts under any lease or other arrangement conveying the right to use) that
are required to be capitalized for financial reporting purposes in accordance
with GAAP.  The amount of a Capitalized
Lease Obligation is the capitalized amount of such obligation determined in
accordance with GAAP.


 


“Consolidated
Adjusted EBITDA” shall mean, for any period, for Borrower and its Subsidiaries
on a consolidated basis, the sum (without duplication) of: (a) Consolidated
Net Income; plus (b) the sum of (i) Federal, state, local, and
foreign income taxes, (ii) interest expense (including the interest
portion of any capitalized lease obligations) and (iii) depletion,
depreciation and amortization; plus (c) restructuring expenses; plus (d) the
sum of extraordinary expenses and noncash expenses; minus (e) the sum of
extraordinary gains and noncash gains.


 


“Derivatives
Contract” shall mean (a) any transaction (including any master agreement,
confirmation or other agreement with respect to any such transaction) now
existing or hereafter entered into by Borrower or any of its Subsidiaries (i) which
is a rate swap transaction, swap option, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option, credit
protection transaction, credit swap, credit default swap, credit default
option, total return swap, credit spread transaction, repurchase transaction,
reverse repurchase transaction, buy/sell-back transaction, securities lending
transaction, weather index transaction or forward purchase or sale of a security,
commodity or other financial instrument or interest (including any option with
respect to any of these transactions) or (ii) which is a type of
transaction that is similar to any transaction referred to in clause (i) above
that is currently, or in the future becomes, recurrently entered into in the
financial markets (including terms and conditions incorporated by reference in
such agreement) and which is a forward, swap, future, option or other
derivative on one or more rates, currencies, commodities, equity securities or
other equity instruments, debt securities or other debt instruments, economic
indices or measures of economic risk or value, or other benchmarks against
which payments or deliveries are to be made, and (b) any combination of
these transactions.


 


“Equity
Interest” shall mean, with respect to any Person, any share of capital stock of
(or other ownership or profit interests in) such Person, any warrant, option or
other right for the purchase or other acquisition from such Person of any share
of capital stock of (or other ownership or profit interests in) such Person
whether or not certificated, any security convertible into or exchangeable for
any share of capital stock of (or other ownership or profit interests in) such
Person or warrant, right or option for the purchase or other acquisition from
such Person of such shares (or such other interests), and any other ownership
or profit interest in such Person (including, without limitation, partnership, 


 


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member
or trust interests therein), whether voting or nonvoting, and whether or not
such share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.


 


“Fifth
Amendment” shall mean the Fifth Amendment to Revolving Line of Credit Loan
Agreement between Borrower and Lender dated on or about September 30,
2009.


 


“Governmental Authority” shall mean any national,
state or local government (whether domestic or foreign), any political
subdivision thereof or any other governmental, quasi-governmental, judicial,
administrative, public or statutory instrumentality, authority, body, agency,
bureau, commission, board, department or other entity (including, without
limitation, the Federal Deposit Insurance Corporation, the Comptroller of the
Currency or the Federal Reserve Board, any central bank or any comparable
authority) or any arbitrator with authority to bind a party at law.


 


“Indebtedness”
shall mean , with respect to a Person, at the time of computation thereof, all
of the following (without duplication): (a) all obligations of such Person
in respect of money borrowed; (b) all obligations of such Person (other
than trade debt incurred in the ordinary course of business), whether or not
for money borrowed (i) represented by notes payable, or drafts accepted,
in each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase
money indebtedness, conditional sales contracts, title retention debt
instruments or other similar instruments, upon which interest charges are
customarily paid or that are issued or assumed as full or partial payment for
property; (c) Capitalized Lease Obligations of such Person; (d) all
reimbursement obligations of such Person under or in respect of any letters of
credit or acceptances (whether or not the same have been presented for
payment); (e) all Off-Balance Sheet Obligations of such Person; (f) all
obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Mandatorily Redeemable Stock issued by such
Person or any other Person, valued at the greater or its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; (g) net
obligations under any Derivative Contract (which shall be deemed to have an
amount equal to the termination value thereof at such time but in no event
shall be less than zero); and (h) all Indebtedness of other Persons which (i) such
Person has Guaranteed or is otherwise recourse to such Person or (ii) is
secured by a Lien on any property of such Person.  For purposes of this definition, (x) the
amount of any Indebtedness represented by a guaranty or other similar
instrument shall be the lesser of the principal amount of the obligations
guaranteed and outstanding and the maximum amount for which the guaranteeing
Person may be liable pursuant to the terms of the guaranty, and (y) the
amount of any Indebtedness described in clause (h)(ii) above shall be the
lower of the amount of the obligation and the fair market value of the assets
securing such obligation.


 


“LIBOR
Market Rate Index” shall mean, for any day, the LIBOR Rate as of that day for
one-month deposits in U.S. Dollars at approximately 9:00 a.m. Pacific time
for such day (or if such day is not a Business Day, the immediately preceding
Business Day).  The LIBOR Market Index
Rate shall be determined on a daily basis.


 


“Mandatorily
Redeemable Stock” shall mean, with respect to any Person, any Equity Interest
of such Person which by the terms of such Equity Interest (or by the terms of
any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise, (a) matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than an Equity Interest to the extent redeemable in exchange for common
stock or other equivalent common Equity 


 


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Interests
at the option of the issuer of such Equity Interest), (b) is convertible
into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable
Stock, or (c) is redeemable at the option of the holder thereof, in whole
or part (other than an Equity Interest which is redeemable solely in exchange
for common stock or other equivalent common Equity Interests), in each case on
or prior to the date on which all Loans are scheduled to be due and payable in
full.


 


“MPC”
shall mean Maui Pineapple Company, Ltd., a Hawaii corporation, or a successor
entity that holds all or substantially all of its assets pursuant to a merger,
sale or other transaction that has been approved by Lender in its reasonable
discretion.


 


“Nonrecourse
Indebtedness” shall mean, with respect to a Person, Indebtedness for borrowed
money in respect of which recourse for payment (except for customary exceptions
for fraud, misapplication of funds, environmental indemnities, and other
similar customary exceptions to nonrecourse liability (but not exceptions
relating to bankruptcy, insolvency, receivership or other similar events) in a
form reasonably acceptable to Lender) is contractually limited to specific
assets of such Person encumbered by a Lien securing such Indebtedness.


 


“Off-Balance
Sheet Obligations” shall mean liabilities and obligations of Borrower, any
Subsidiary or any other Person in respect of “off-balance sheet arrangements”
(as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated under the
Securities Act) which Borrower would be required to disclose in the “Management’s
Discussion and Analysis of Financial Condition and Results of Operations”
section of Borrower’s report on Form 10-Q or Form 10-K (or their
equivalents) which Borrower is required to file with the SEC (or any
Governmental Authority substituted therefor).


 


“Total
Liabilities” means, as to any Person as of a given date, all liabilities which
would, in conformity with GAAP, be properly classified as a liability on a
consolidated balance sheet of such Person as of such date.


 


“Unconsolidated
Affiliate” shall mean, with respect to any Person, any other Person in whom
such Person holds an Investment, which Investment is accounted for in the
financial statements of such Person on an equity basis of accounting and whose
financial results would not be consolidated under GAAP with the financial
results of such Person on the consolidated financial statements of such Person.


 


2.3                                 Modified Definitions.  The following definitions set forth in Section 1
of the Agreement are hereby modified as follows:


 


(a)                                  The definition of “Fixed
Rate Tranche” is hereby amended to delete the words “and the One Year Fixed
Rate Tranche” and to add the word “and” before the words “Six Month Fixed Rate
Tranche.”


 


(b)                                 The definition of “Interest
Period” is hereby amended to delete the words “or twelve (12) months add the
word “or” before the words “six (6) months.”


 


2.4                                 Deleted Definitions.  The following definitions set forth in Section 1
of the Agreement are hereby deleted:


 


“Draw
Period”


 


“One
Year Fixed Rate Tranche”


 


“Term
Loan”


 


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2.5                                 Amendment of Section 3(a).  Section 3(a) of the Agreement is
hereby amended to add the words “day before” prior to the words “Maturity Date”
on line 2 and to delete the third and fourth sentences thereof.


 


2.6                                 Amendment of Section 3(c).  Section 3(c) of the Agreement is
hereby amended to delete the last sentence of such section and replace it with
the following: “Notwithstanding any other provision of this Agreement to the
contrary, from and after October 1, 2009, in no event shall the Base Rate
be less than five and one-half of one percent (5.50%) per annum.”


 


2.7                                 Amendment of Section 3(d)(2).  Section 3(d)(2) of the Agreement is
hereby amended to (i) delete “this Section 3(d)(2)” and replace it
with “Section 3(d)(1)” in each place where it appears in such Section, (ii) renumber
such subsection as Section 3(d)(3), and (iii) insert the following as
new subsection 3(d)(2):


 


(2)                                  Interest on
Fixed Rate Tranches.  Each Fixed
Rate Tranche shall bear interest, from the Closing Date through the date on
which such Fixed Rate Tranche is paid in full, at a rate per annum equal to the
greater of (i) five and one-half of one percent (5.50%) or (ii) the
sum of (x) the applicable LIBOR Rate for such Fixed Rate Tranche, plus (y) the
Applicable Spread for the Interest Period then in effect for such Fixed Rate
Tranche.


 


2.8                                 Amendment of Section 3(i).  Section 3(i) of the Agreement is
hereby amended to delete “or Lender” from such Section, and to delete “Section 3(i)(3)”
and replace it with “Section 3(i)”.


 


2.9                                 Amendment of Section 4(b).  Section 4(b) of the Agreement is
hereby amended to delete “March 13, 2010” and replace it with “March 1,
2011” and to add the following sentence at the end thereof:  “Any extension of the Maturity Date shall be
in the sole and absolute discretion of Lender.”


 


2.10                           Amendment and Restatement of
Section 4(d).  Section 4(d) is
hereby amended and restated to read as follows:


 


(d)                                 Late Charge.  If any payment required under this Agreement
is not paid within ten (10) days after it becomes due and payable,
Borrower shall pay a late charge for late payment to compensate Lender for the
loss of use of funds and for the expenses of handling the delinquent payment,
in an amount equal to four percent (4%) of such delinquent payment.  Such late charge shall be paid in any event
not later than the due date of the next subsequent installment of principal
and/or interest.  In the event the
maturity of the Obligations hereunder occurs or is accelerated, this Section shall
apply only to payments overdue prior to the time of such acceleration.  This Section shall not be deemed to be a
waiver of Lender’s right to accelerate payment of any of the Obligations as
permitted under the terms of this Agreement.


 


2.11                           Amendment of Section 4(e).  Section 4(e) of the Agreement is
hereby amended to (a) delete “one quarter of one-percent (.0.25%)” in the
first sentence and replacing it with “four-tenths of one percent (0.40%),” and (b) deleting
the third sentence and all the language following the third sentence.”


 


2.12                           Amendment of Section 6(d).  Section 6(d) of the Agreement is
hereby amended to delete the number “(1),” to delete “or the One Year Fixed
Rate Tranche,” to delete “; and” at the end of the paragraph formerly numbered “(1),”
and to delete paragraph (2) in its entirety.


 


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2.13                           Amendment of Section 11.  Section 11 of the Agreement is hereby
amended as follows:


 


2.13.1                  Section 11(g)(2) of
the Agreement is amended and restated to read as follows:


 


(2)                                  Quarterly
Financial Statements, Projected Financial Statements and Operating and Capital
Plan Updates.  No later
than sixty (60) days after the end of each Fiscal Quarter: (i) internally
prepared quarterly financial statements containing the same information
regularly generated by Borrower on its internal quarterly financial statements
and its quarterly filings with the Securities and Exchange Commission on Form 10-Q,
accompanied by a compliance certificate from Borrower’s chief financial
officer, in the form attached hereto as Exhibit B, certifying that as of
the date of such financial statement there did not exist a Default or Event of
Default under this Agreement; (ii) projections of the financial statements
of the Borrower for the next six Fiscal Quarters, including a projected income
statement, balance sheet and cash flow statement of Borrower for the six Fiscal
Quarter period immediately following such Fiscal Quarter, which projection
shall state the assumptions used in the preparation thereof, include a
description and discussion of the variance of the performance projected in such
projected financial statements from the performance during the Fiscal Quarter
then ended, and include a commentary with respect to the performance of the
segments described in such projected financial statements, accompanied by a
certificate from Borrower’s chief financial officer certifying that such
financial projections represent Borrower’s best estimates and assumptions as to
performance during such period, which Borrower believes to be fair and
reasonable as of the time made in the light of then current and reasonably
foreseeable business conditions; (iii) an update of the Borrowers
operating and capital plan for the Fiscal Quarter then ended, which shall
include, without limitation, a segment overview, a review of objectives and
work streams, progress updates, a review of actions to date, a responsibility
matrix, and an outsourced, leased or sold update; (iv) a reconciliation, on
a rolling four quarter basis ending with the most recent Fiscal Quarter then
ended, of the actual Consolidated Adjusted EBITDA projected for each Fiscal
Quarter during such period to the actual Consolidated Adjusted EBITDA contained
in the quarterly financial statements provided by Borrower pursuant to this
Section; and (v) a leasing/occupancy status report, together with a
current rent roll, for any real property owned by Borrower that is used for
retail or commercial purposes;


 


2.13.2                  Section 11(g)(9) of the Agreement
is amended to delete the “and” at the end of such Section.


 


2.13.3                  Section 11(g)(10) of the Agreement
is amended and restated to read as follows:


 


(10)                            Consolidated
Cash Flow Forecast.  No later
than twenty (20) days following the end of each month, a consolidated forecast
of the cash flows of Borrower for the upcoming twenty-four month period, which
forecast shall state the assumptions used in the preparation thereof and be
accompanied by a certificate from Borrower’s chief financial officer certifying
that such forecast represents Borrower’s best estimate and assumption as to
performance during such period, which Borrower believes to be fair and
reasonable as of the time made in the light of then current and reasonably
foreseeable business conditions;


 


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2.13.4      A new Section 11(g)(11) of the
Agreement is hereby added as follows:


 


(11)         Quarterly Conference Calls.  Promptly upon delivery of the financial
information described in Section 11(g)(2) above, Borrower’s chief
financial officer or his/her designee shall make himself/herself available, at
a time acceptable to Lender, for a conference call to discuss such information;
and


 


2.13.5      A new Section 11(g)(12) of the
Agreement is hereby added as follows:


 


(12)         Other Information.  Such other information regarding the
condition or operations, financial or otherwise, of Borrower or any Guarantor
as Lender may, from time to time, reasonably request.  All information provided by Borrower to
Lender pursuant to this Section shall be in form and substance satisfactory
to Lender in all respects.


 


2.14                           Amendment of Section 12(b).  Section 12(b) of the Agreement is
hereby amended to replace “and (iii)” with “(iii) all or a portion of the
assets of MPC; (iv) all or a portion of the Equity Interest held by
Borrower in MPC; and (v)”.


 


2.15                           Amendment of Section 12(d).  Section 12(d) of the Agreement is
hereby amended to replace “Collateral” with “any assets of Borrower,”.


 


2.16                           Amendment of Section 12(e).  Section 12(e) of the Agreement is
hereby amended to replace “Forty Million Dollars ($40,000,000)” with “Seven
Million Dollars ($7,000,000)” and “2005” with “2009”.


 


2.17                           Amendment and Restatement of
Section 12(i).  Section 12(i) of
the Agreement is hereby amended and restated to read as follows:


 


(i) 
Indebtedness.  Incur any
Indebtedness other than the Loan, except for Indebtedness disclosed on the
consolidated balance sheet of Borrower and its Subsidiaries dated as of September 30,
2009, provided, however, that (i) Borrower may incur up to $50,000,000 in
total Indebtedness outstanding at any time pursuant to that certain Amended and
Restated Credit Agreement, dated as of even date herewith, between Borrower,
Wells Fargo Bank, National Association, as administrative agent and sole lead
arranger, and the financial institutions party thereto; (ii) Borrower may
incur up to $250,000 in total Indebtedness outstanding at any time in
connection with the acquisition or lease of equipment used in the ordinary
course of its business; (iii) Borrower may incur Capitalized Lease
Obligations in the ordinary course of business; and (iv) the amount of
Indebtedness attributable to the convertible debt of Borrower in existence as
of the date hereof may be increased, provided that such increase arises solely
from the recalculation of the amount of such debt under GAAP based on a change
in the stock price of shares of Borrower (and not as a result of the issuance
of new Indebtedness).


 


2.18                           Amendment and Restatement of
Section 12(j).  Section 12(j) of
the Agreement is hereby amended and restated to read as follows:


 


(j) 
Total Liabilities.  Permit its
Total Liabilities to exceed $240,000,000 at any time, as calculated at the end
of each Fiscal Quarter.


 


2.19                           Addition of New Section 12(k).  A new Section 12(k) of the
Agreement is hereby added as follows:


 


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(k)           Liquidity.  Permit its Liquidity, as of the end of any
calendar quarter, to be less than $8,000,000. 
As used herein, “Liquidity” shall mean the sum of (i) cash, (ii) Cash
Equivalents, (iii) publicly traded and publicly quoted marketable
securities acceptable to Lender Agent in its reasonable discretion, (iv) undisbursed
commitment under secured lines of credit available to Borrower, and (v) the
amount, if any, not to exceed $2,000,000, by which accounts receivable of the
Borrower exceed accounts payable of the Borrower, net, in connection with any
of the foregoing, of any encumbrance, setoff or claim and minus any
unsecured Indebtedness of Borrower.


 


The
foregoing shall supersede Section 3.2 of the Fourth Amendment and the “Liquidity”
covenant set forth in the Fourth Amendment shall no longer be of any force or
effect.


 


2.20                           Amendment and Restatement of
Section 13(d).  Section 13(d) of
the Agreement is hereby amended and restated to read as follows:


 


(d)  Other Indebtedness. Borrower or any
Guarantor shall fail to pay when due any Indebtedness or any other event occurs
which, under any agreement or instrument relating to such Indebtedness, has the
effect of accelerating or permitting the acceleration of such Indebtedness,
whether or not such Indebtedness is actually accelerated.


 


2.21                           Amendment of Section 13(f).  Section 13(f) is hereby amended to
add the following at the end of such section: 
“, provided, however, that, notwithstanding anything in this Section 13(f) to
the contrary, Borrower may liquidate, wind-up, dissolve or cease the operations
of MPC.”


 


2.22                           General Amendment.  The words “Indebtedness for Borrowed Money”
are herby changed to “Indebtedness” each time they appear.


 


3.                                       Representations and Warranties of Borrower.  Borrower represents,
warrants and covenants to Lender that:


 


3.1                                 Borrower knows of no Default
or Event of Default under the terms and conditions of the Loan Documents.


 


3.2                                 This Amendment constitutes a
legal, valid and binding obligation of Borrower, enforceable against Borrower
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors’ rights generally.


 


3.3                                 The representations and
warranties of Borrower set forth in Section 10 of the Credit Agreement are
correct in all material respects as though made on and as of the date of this
Amendment (provided, if a representation or warranty was made as of a specific
date, such representation or warranty was true and correct in all material
respects as of the date made).


 


3.4                                 Since the date of the last
financial statements delivered by Borrower to Lender, there has been no
material adverse change in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of
Borrower and its Subsidiaries taken as a whole or in the facts and information
regarding such entities as represented to Lender to date.


 


3.5                                 Except as set forth on Schedule
3.5 hereto, there are no actions, suits, investigations or proceedings
pending or to Borrower’s knowledge, threatened in any court or 


 


9

















 


before any arbitrator or governmental
authority that purport (x) to materially and adversely affect Borrower or
any of its Subsidiaries, or (y) to affect any transaction contemplated
hereby or the ability of Borrower to perform its obligations under the Loan
Documents.


 


3.6                                 Borrower is in material
compliance with all laws, including satisfaction of all tax obligations prior
to delinquency.


 


3.7                                 Borrower is in compliance
with all insurance requirements imposed upon Borrower under the Loan Documents.


 


3.8                                 Borrower is in compliance
with the negative covenants set forth in Section 12 of the Credit
Agreement, as amended herein.


 


4.                                       Representations and Warranties of Guarantors.  Each Guarantor by its
signature below represents, warrants and covenants to Lender that:


 


4.1                                 Such Guarantor knows of no
Default or Event of Default under the terms and conditions of the Loan
Documents.


 


4.2                                 This Amendment constitutes a
legal, valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors’ rights generally.


 


4.3                                 Since the date of the last
financial statements delivered by Borrower to Lender, there has been no
material adverse change in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of
such Guarantor taken as a whole or in the facts and information regarding such
Guarantor as represented to Lender to date.


 


4.4                                 Except as set forth on Schedule
3.5 hereto, there are no actions, suits, investigations or proceedings
pending or to Borrower’s knowledge, threatened in any court or before any
arbitrator or governmental authority that purport (x) to materially and
adversely affect such Guarantor, or (y) to affect any transaction
contemplated hereby or the ability of Guarantor to perform its obligations
under the Loan Documents.


 


4.5                                 Such Guarantor is in
material compliance with all laws, including satisfaction of all tax
obligations prior to delinquency.


 


5.                                       Continuing Validity.  Except as
expressly modified or changed by this Amendment, the terms of the Credit
Agreement, the Note and all other related loan documents remain unchanged and
in full force and effect. Consent by Lender to the changes described herein
does not waive Lender’s right to strict performance of the terms and conditions
contained in the Credit Agreement, the Note and all other loan and security
documents as amended, nor obligate Lender to make future changes in terms.
Nothing in this Amendment will constitute a satisfaction of the indebtedness
represented by the Note.


 


6.                                       Release.  Borrower
hereby releases, remises, acquits and forever discharges Lender and its employees,
agents, representatives, consultants, attorneys, fiduciaries, officers,
directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, and related corporate divisions
(collectively, the “Released Parties”), from any and all actions and causes of
action, judgments, executions, suits, debts, claims, demands, liabilities,
obligations, damages and 


 


10

















 


expenses
of any and every character, known or unknown, direct and/or indirect, at law or
in equity, of whatsoever kind or nature, for or because of any matter or things
done, omitted or suffered to be done by any of the Released Parties prior to
and including the date of delivery hereof, and in any way directly or indirectly
arising out of or in any way connected to the Credit Agreement (collectively,
the “Released Matters”).  Borrower
acknowledges that the agreements in this Section are intended to be in
full satisfaction of all or any alleged injuries or damages arising in
connection with the Released Matters.


 


Without
limiting the generality of the foregoing, Borrower hereby waives the provisions
of any statute that prevents a general release from extending to claims unknown
by the releasing party, including Section 1542 of the California Civil
Code which provides:


 


A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or her
settlement with the debtor.


 


By
entering into this release, Borrower recognizes that no facts or
representations are ever absolutely certain and Borrower may hereafter discover
facts in addition to or different from those which Borrower presently knows or
believes to be true, but that it is the intention of Borrower to hereby fully,
finally and forever settle and release all matters, disputes and differences,
known or unknown, suspected or unsuspected; accordingly, if Borrower should subsequently
discover that any fact that Borrower relied upon in delivering this release was
untrue, or that any understanding of the facts was incorrect, Borrower shall
not be entitled to set aside this release by reason thereof, regardless of any
claim of mistake of fact or law or any other circumstances whatsoever.  Borrower acknowledges that Borrower is not
relying upon and has not relied upon any representation or statement made by
Lender with respect to the facts underlying this release or with regard to
Borrower’s rights or asserted rights.


 


This
release may be pleaded as a full and complete defense and/ or as a
cross-complaint or counterclaim against any action, suit, or other proceeding
that may be instituted, prosecuted or attempted in breach of this release.  Borrower acknowledges that the release
contained herein constitutes a material inducement to Lender to enter into this
Amendment and that Lender would not have done so but for Lender’s expectation
that such release is valid and enforceable in all events.


 


7.                                       Enforceability. 
Borrower represents, warrants and acknowledges that it has had the
opportunity to consult with independent counsel regarding the legal effects of
this Amendment, and that it is executing this Amendment of its own free will
and accord, for the purposes and considerations set forth herein.  Borrower hereby acknowledges that this
Amendment is binding and enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
or similar laws relating to the enforcement of creditor’s rights generally and
by general equitable principles.  Any law
or regulation that provides that the language of a contract shall be construed
against the drafter shall not apply to this Amendment.


 


8.                                       Miscellaneous.


 


8.1                                 Borrower acknowledges and
agrees that the execution and delivery by the Lender of this Amendment shall
not be deemed to create a course of dealing or an obligation to execute similar
amendments or substitutions of collateral under the same or similar
circumstances in the future.


 


8.2                                 This Amendment shall be
binding upon and inure to the benefit of the Borrower, and Lender and their
respective successors and assigns.


 


11

















 


8.3                                 This Amendment shall be
governed by and construed in accordance with the laws of the State of
California.


 


8.4                                 This Amendment contains the
entire agreement of the parties hereto with reference to the matters discussed
herein.


 


8.5                                 If any term or provision of
this Amendment shall be deemed prohibited or invalid under any applicable law,
such provision shall be invalidated without affecting the remaining provisions
of this Amendment, the Credit Agreement, the Note or any other Loan Documents
or related documents.


 


8.6                                 This Amendment may be
executed in multiple counterparts, each of which shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument.  The manual signature of any
party hereto that is transmitted to any other party or its counsel by facsimile
or electronic transmission shall be deemed for all purposes to be an original
signature.


 


12

















 


IN WITNESS WHEREOF the
parties have executed this Amendment on the date first above written.


 


THE
UNDERSIGNED AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH ABOVE.


 


BORROWER:


 


MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii
corporation


 


	
  By:

  	
  /S/ JOHN P. DURKIN

  	
   

  
	
  Name:

  	
  John P. Durkin

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /S/ RYAN L. CHURCHILL

  	
   

  
	
  Name:

  	
  Ryan L. Churchill

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
   

  
	
   

  	
   

  
	
  AMERICAN AGCREDIT, FLCA

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /S/ GARY VANSCHUYVER

  	
   

  
	
  Name:

  	
  Gary VanSchuyver

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  



 


THE SIGNATURES OF GUARANTORS APPEAR ON THE FOLLOWING PAGE.


 


13

















 


GUARANTORS:


 


The undersigned Guarantors
hereby consent to, ratify and approve the terms, covenants, conditions and
provisions of the foregoing Amendment, agree that the guaranty(ies) executed by
them shall be extended to include the obligations of the Borrower under the
Credit Agreement as amended by this Amendment, and join in the release granted
by Borrower to Lender in the foregoing Amendment.


 


KAPALUA LAND COMPANY, LTD., a Hawaii corporation


 


	
  By:

  	
  /S/ JOHN P. DURKIN

  	
   

  
	
  Name:

  	
  John P. Durkin

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /S/ RYAN L. CHURCHILL

  	
   

  
	
  Name:

  	
  Ryan L. Churchill

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MAUI PINEAPPLE COMPANY, LTD., a Hawaii corporation

  
	
   

  
	
  By:

  	
  /S/ JOHN P. DURKIN

  	
   

  
	
  Name:

  	
  John P. Durkin

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /S/ RYAN L. CHURCHILL

  	
   

  
	
  Name:

  	
  Ryan L. Churchill

  	
   

  
	
  Title:

  	
  Member, Board of Directors