Exhibit 10.1


 


Loan Number: 105088


 





 


	
   

  



 


AMENDED AND RESTATED
CREDIT AGREEMENT


 


 


Dated as of October 9, 2009


 


 


by and among


 


MAUI LAND & PINEAPPLE COMPANY, INC.,


as Borrower,


 


THE FINANCIAL INSTITUTIONS PARTY HERETO


AND THEIR ASSIGNEES UNDER SECTION 12.6.,


as Lenders,


 


and


 


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Administrative Agent


 


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Sole Lead Arranger


 


	
   

  



 

















 


TABLE
OF CONTENTS


 


	
  Article I.
  Definitions

  	
  1

  
	
   

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
  1

  
	
  Section 1.2.

  	
  General; References to
  Pacific Time

  	
  18

  
	
   

  	
   

  	
   

  
	
  Article II.
  Credit Facility

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
  Revolving Loans

  	
  19

  
	
  Section 2.2.

  	
  Letters of Credit

  	
  20

  
	
  Section 2.3.

  	
  Swingline Loans

  	
  23

  
	
  Section 2.4.

  	
  Rates and Payment of
  Interest on Loans

  	
  25

  
	
  Section 2.5.

  	
  Number of Interest
  Periods

  	
  26

  
	
  Section 2.6.

  	
  Repayment of Loans

  	
  26

  
	
  Section 2.7.

  	
  Prepayments

  	
  26

  
	
  Section 2.8.

  	
  Late Charges

  	
  26

  
	
  Section 2.9.

  	
  Continuation

  	
  26

  
	
  Section 2.10.

  	
  Conversion

  	
  27

  
	
  Section 2.11

  	
  Notes

  	
  27

  
	
  Section 2.12

  	
  Voluntary Reductions of
  the Revolving Commitment

  	
  28

  
	
  Section 2.13.

  	
  Expiration or Maturity
  Date of Letters of Credit Past Maturity Date

  	
  28

  
	
  Section 2.14.

  	
  Amount Limitations

  	
  28

  
	
  Section 2.15.

  	
  Funds Transfer
  Disbursements

  	
  28

  
	
  Section 2.16.

  	
  Amended and Restated
  Obligations

  	
  29

  
	
   

  	
   

  	
   

  
	
  Article III.
  Payments, Fees and Other General Provisions

  	
  30

  
	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
  Payments

  	
  30

  
	
  Section 3.2.

  	
  Pro Rata Treatment

  	
  30

  
	
  Section 3.3.

  	
  Sharing of Payments,
  Etc.

  	
  31

  
	
  Section 3.4.

  	
  Several Obligations

  	
  32

  
	
  Section 3.5.

  	
  Fees

  	
  32

  
	
  Section 3.6.

  	
  Computations

  	
  32

  
	
  Section 3.7.

  	
  Usury

  	
  32

  
	
  Section 3.8.

  	
  Statements of Account

  	
  33

  
	
  Section 3.9.

  	
  Defaulting Lenders

  	
  33

  
	
  Section 3.10.

  	
  Taxes; Foreign Lenders

  	
  34

  
	
   

  	
   

  	
   

  
	
  Article IV. Yield
  Protection, Etc.

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
  Additional Costs;
  Capital Adequacy

  	
  36

  
	
  Section 4.2.

  	
  Suspension of LIBOR
  Loans

  	
  37

  
	
  Section 4.3.

  	
  Illegality

  	
  38

  
	
  Section 4.4.

  	
  Compensation

  	
  38

  
	
  Section 4.5.
  

  	
  Treatment of Affected
  Loans

  	
  38

  
	
  Section 4.6.
  

  	
  Change of Lending
  Office

  	
  39

  
	
  Section 4.7.
  

  	
  Assumptions Concerning
  Funding of LIBOR Loans

  	
  39

  
	
   

  	
   

  	
   

  
	
  Article V.
  Conditions Precedent

  	
  39

  
	
   

  	
   

  	
   

  
	
  Section 5.1.
  

  	
  Initial Conditions
  Precedent

  	
  39

  
	
  Section 5.2.
  

  	
  Conditions Precedent to
  All Loans and Letters of Credit

  	
  42

  
	
  Section 5.3.
  

  	
  Conditions as Covenants

  	
  42

  



 

















 


	
  Article VI.
  Representations and Warranties

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 6.1.
  

  	
  Representations and
  Warranties

  	
  43

  
	
  Section 6.2.
  

  	
  Survival of
  Representations and Warranties, Etc.

  	
  48

  
	
   

  	
   

  	
   

  
	
  Article VII.
  Affirmative Covenants

  	
  48

  
	
   

  	
   

  	
   

  
	
  Section 7.1.
  

  	
  Preservation of
  Existence and Similar Matters

  	
  48

  
	
  Section 7.2.
  

  	
  Compliance with
  Applicable Law

  	
  49

  
	
  Section 7.3.
  

  	
  Maintenance of Property

  	
  49

  
	
  Section 7.4.
  

  	
  Conduct of Business

  	
  49

  
	
  Section 7.5.
  

  	
  Insurance

  	
  49

  
	
  Section 7.6.
  

  	
  Payment of Taxes and
  Claims

  	
  50

  
	
  Section 7.7.
  

  	
  Books and Records;
  Inspections

  	
  50

  
	
  Section 7.8.
  

  	
  Use of Proceeds

  	
  51

  
	
  Section 7.9.
  

  	
  Environmental Matters

  	
  51

  
	
  Section 7.10.
  

  	
  Further Assurances

  	
  52

  
	
  Section 7.11.
  

  	
  Material Contracts

  	
  52

  
	
  Section 7.12.
  

  	
  Exchange Listing

  	
  52

  
	
  Section 7.13.
  

  	
  Subdivision Maps

  	
  53

  
	
  Section 7.14.
  

  	
  Liens

  	
  53

  
	
  Section 7.15.
  

  	
  Water Delivery
  Agreement

  	
  53

  
	
  Section 7.16.
  

  	
  Kahului Prepayment

  	
  53

  
	
   

  	
   

  	
   

  
	
  Article VII.
  Information

  	
  54

  
	
   

  	
   

  	
   

  
	
  Section 8.1.
  

  	
  Quarterly Financial
  Statements

  	
  54

  
	
  Section 8.2.
  

  	
  Year-End Statements

  	
  54

  
	
  Section 8.3.
  

  	
  Compliance Certificate

  	
  54

  
	
  Section 8.4.
  

  	
  Other Information

  	
  55

  
	
  Section 8.5.
  

  	
  Electronic Delivery of
  Certain Information

  	
  57

  
	
  Section 8.6.
  

  	
  Public/Private
  Information

  	
  58

  
	
  Section 8.7.
  

  	
  USA Patriot Act Notice;
  Compliance

  	
  58

  
	
   

  	
   

  	
   

  
	
  Article IX.
  Negative Covenants

  	
  58

  
	
   

  	
   

  	
   

  
	
  Section 9.1.
  

  	
  Financial Covenants

  	
  58

  
	
  Section 9.2.
  

  	
  Negative Pledge

  	
  59

  
	
  Section 9.3.
  

  	
  Restrictions on
  Intercompany Transfers

  	
  59

  
	
  Section 9.4.
  

  	
  Merger, Consolidation,
  Sales of Assets and Other Arrangements

  	
  59

  
	
  Section 9.5.
  

  	
  Plans

  	
  60

  
	
  Section 9.6.
  

  	
  Fiscal Year

  	
  60

  
	
  Section 9.7.
  

  	
  Modifications of
  Organizational Documents and Material Contracts

  	
  60

  
	
  Section 9.8.
  

  	
  Subordinated Debt
  Prepayments; Amendments

  	
  61

  
	
  Section 9.9.
  

  	
  Transactions with
  Affiliates

  	
  61

  
	
  Section 9.10.
  

  	
  Environmental Matters

  	
  62

  
	
  Section 9.11.
  

  	
  Leases

  	
  62

  
	
  Section 9.12.
  

  	
  Derivatives Contracts

  	
  62

  
	
   

  	
   

  	
   

  
	
  Article X. Default

  	
  62

  
	
   

  	
   

  	
   

  
	
  Section 10.1.
  

  	
  Events of Default

  	
  62

  
	
  Section 10.2.
  

  	
  Remedies Upon Event of
  Default

  	
  66

  
	
  Section 10.3.
  

  	
  Remedies Upon Default

  	
  67

  



 


ii

















 


	
  Section 10.4.
  

  	
  Marshaling; Payments
  Set Aside

  	
  67

  
	
  Section 10.5.
  

  	
  Allocation of Proceeds

  	
  68

  
	
  Section 10.6.
  

  	
  Letter of Credit
  Collateral Account

  	
  68

  
	
  Section 10.7.
  

  	
  Rescission of Acceleration by Requisite Lenders

  	
  69

  
	
  Section 10.8.
  

  	
  Performance by
  Administrative Agent

  	
  70

  
	
  Section 10.9.
  

  	
  Rights Cumulative

  	
  70

  
	
   

  	
   

  	
   

  
	
  Article XI. The
  Administrative Agent

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 11.1.
  

  	
  Appointment and
  Authorization

  	
  70

  
	
  Section 11.2.
  

  	
  Wells Fargo as Lender

  	
  71

  
	
  Section 11.3

  	
  Collateral Matters;
  Protective Advances

  	
  71

  
	
  Section 11.4.
  

  	
  Post-Foreclosure Plans

  	
  73

  
	
  Section 11.5.
  

  	
  Approvals of Lenders

  	
  74

  
	
  Section 11.6.
  

  	
  Notice of Events of
  Default

  	
  74

  
	
  Section 11.7.
  

  	
  Administrative Agent’s
  Reliance

  	
  74

  
	
  Section 11.8.
  

  	
  Indemnification of
  Administrative Agent

  	
  75

  
	
  Section 11.9.
  

  	
  Lender Credit Decision,
  Etc.

  	
  76

  
	
  Section 11.10.
  

  	
  Successor
  Administrative Agent

  	
  76

  
	
   

  	
   

  	
   

  
	
  Article XII.
  Miscellaneous

  	
  77

  
	
   

  	
   

  	
   

  
	
  Section 12.1.
  

  	
  Notices

  	
  77

  
	
  Section 12.2.
  

  	
  Expenses

  	
  78

  
	
  Section 12.3.
  

  	
  Stamp, Intangible and
  Recording Taxes

  	
  79

  
	
  Section 12.4.
  

  	
  Setoff

  	
  79

  
	
  Section 12.5.
  

  	
  Litigation;
  Jurisdiction; Other Matters; Waivers

  	
  79

  
	
  Section 12.6.
  

  	
  Successors and Assigns

  	
  80

  
	
  Section 12.7.
  

  	
  Amendments and Waivers

  	
  81

  
	
  Section 12.8.
  

  	
  Nonliability of
  Administrative Agent and Lenders

  	
  83

  
	
  Section 12.9.
  

  	
  Confidentiality

  	
  83

  
	
  Section 12.10.
  

  	
  Indemnification

  	
  83

  
	
  Section 12.11.
  

  	
  Termination; Survival

  	
  85

  
	
  Section 12.12.
  

  	
  Severability of Provisions

  	
  85

  
	
  Section 12.13.
  

  	
  Governing Law

  	
  86

  
	
  Section 12.14.
  

  	
  Counterparts

  	
  86

  
	
  Section 12.15.
  

  	
  Obligations with
  Respect to Loan Parties

  	
  86

  
	
  Section 12.16.
  

  	
  Independence of
  Covenants

  	
  86

  
	
  Section 12.17.
  

  	
  Limitation of Liability

  	
  86

  
	
  Section 12.18.
  

  	
  Entire Agreement

  	
  86

  
	
  Section 12.19.
  

  	
  Construction

  	
  87

  
	
  Section 12.20.
  

  	
  Headings

  	
  87

  
				



 


	
  SCHEDULE I

  	
  Commitments

  
	
  SCHEDULE
  6.1.(b)

  	
  Ownership
  Structure

  
	
  SCHEDULE
  6.1.(f)

  	
  Properties

  
	
  SCHEDULE
  6.1.(g)

  	
  Indebtedness
  and Guaranties; Total Liabilities

  
	
  SCHEDULE
  6.1.(h)

  	
  Material
  Contracts

  
	
  SCHEDULE
  6.1.(i)

  	
  Litigation

  
	
  SCHEDULE
  6.1.(o)

  	
  Hazardous
  Materials

  
	
  SCHEDULE
  6.1.(r)

  	
  Affiliate
  Transactions

  
	
  SCHEDULE
  12.1

  	
  Notices

  



 


iii

















 


	
  EXHIBIT
  A

  	
  Form of
  Assignment and Assumption Agreement

  
	
  EXHIBIT B

  	
  Form of Notice of
  Borrowing

  
	
  EXHIBIT
  C

  	
  Form of
  Notice of Continuation

  
	
  EXHIBIT
  D

  	
  Form of
  Notice of Conversion

  
	
  EXHIBIT
  E

  	
  Form of
  Notice of Swingline Borrowing

  
	
  EXHIBIT
  F

  	
  Form of
  Revolving Note

  
	
  EXHIBIT
  G

  	
  Form of
  Swingline Note

  
	
  EXHIBIT
  H

  	
  Form of
  Transfer Authorizer Designation Form

  
	
  EXHIBIT I

  	
  Form of Compliance
  Certificate

  



 


iv
















 


THIS
AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of October 9, 2009 by and among MAUI LAND &
PINEAPPLE COMPANY, INC., a corporation formed under the laws of the State of
Hawaii (the “Borrower”), each of the financial institutions initially a
signatory hereto together with their successors and assignees under Section 12.6.
(the “Lenders”), and WELLS FARGO BANK, NATIONAL
ASSOCIATION (“Administrative Agent”).


 


WHEREAS,
pursuant to that certain Loan Agreement dated as of November 13, 2007, by
and among the Borrower, the Lenders from time to time party thereto, and Wells
Fargo Bank, National Association, acting in the capacity as Administrative
Agent for the Lenders (as amended or modified to date, the “Existing Credit
Agreement”), the Lenders party thereto agreed to extend credit to the Borrower
on the terms and subject to the conditions set forth therein.


 


WHEREAS,
the Borrower has requested that  the
Existing Credit Agreement be further amended and, for the convenience of the
parties, the Lenders and the other parties hereto have agreed to amend and
restate the Existing Loan Agreement in its entirety as set forth herein and to replace and
supersede the Existing Credit Agreement and to amend certain of the other “Loan
Documents” (as that term is used and defined in the Existing Credit Agreement)
pursuant to this Agreement and the documents, instruments, and agreements
referred to herein.


 


WHEREAS,
pursuant to this Agreement, the Administrative Agent, the Issuing Bank and the
Lenders desire to make available to the Borrower a $50,000,000.00 revolving credit facility with a $5,000,000.00 swingline subfacility and a $5,000,000 letter of credit subfacility, on the
terms and conditions contained herein.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, the parties hereto agree
as follows:


 


ARTICLE
I. DEFINITIONS


 


Section 1.1.  Definitions.


 


In
addition to terms defined elsewhere herein, the following terms shall have the
following meanings for the purposes of this Agreement:


 


“Additional Costs” has the meaning given that term in Section 4.1.(b).


 


“Administrative Agent” means Wells Fargo
Bank, National Association or any successor Administrative Agent appointed pursuant
to Section 11.10.


 


“Administrative Questionnaire” means the Administrative
Questionnaire completed by each Lender and delivered to the Administrative
Agent in a form supplied by the Administrative Agent to the Lenders from time
to time.


 


“Affiliate” means,
with respect to any Person, (a) in the case of any such Person which is a
partnership or limited liability company, any partner or member in such
partnership or limited liability company, respectively, (b) any other
Person which is directly or indirectly controlled by, controls or is under
common control with such Person or one or more of the Persons referred to in
the preceding clause (a), (c) any other Person who is an officer,
director, trustee or employee of, or partner in, such Person or any Person
referred to in the preceding clauses (a) and (b), (d) any other
Person who is a member of the immediate family of such Person or of any Person
referred to in the preceding clauses (a) through (c), and


 

















 


(e) any other Person that is a trust solely for
the benefit of one or more Persons referred to in clause (d) and of which
such Person is sole trustee; provided, however, in no event shall
the Administrative Agent, the Issuing Bank or any Lender or any of their respective Affiliates be an Affiliate of Borrower.  For purposes of this definition, “control”
(including with correlative meanings, the terms “controlling”, “controlled by”
and “under common control with”) means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise.


 


“Agreement” shall have the meaning given to such term in the
preamble hereto.


 


“Agreement Date” means the date as of which this Agreement is
dated.


 


“Applicable Law” means all applicable provisions of
constitutions, statutes, rules, regulations and orders of any Governmental
Authority, including all orders and decrees of all courts, tribunals and
arbitrators.


 


“Applicable Margin” means 4.25%.


 


“Appraisal” means, with respect to the Property, an M.A.I.
appraisal commissioned by and addressed to the Administrative Agent (acceptable
to the Administrative Agent as to form, substance and appraisal date), prepared
by a professional appraiser reasonably acceptable to the Administrative Agent,
having at least the minimum qualifications required under Applicable Law
governing the Administrative Agent and the Lenders, including without
limitation, FIRREA, and determining, without duplication, both the “as is”
market value of the Commercial Property and the “as-is” bulk value of the Land,
in each case as between a willing buyer and a willing seller.


 


“Approved Fund” means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an
entity or an Affiliate of any entity that administers or manages a Lender.


 


“Assignee” has the meaning given that term in Section 12.6.(c).


 


“Assignment and Assumption” means an
Assignment and Assumption Agreement among a Lender, an Assignee and the
Administrative Agent, substantially in the form of Exhibit A.


 


“Bankruptcy Code” means the Bankruptcy Code of 1978, as
amended.


 


“Base Rate” means the LIBOR Market Index Rate; provided, that
if for any reason the LIBOR Market Index Rate is unavailable, Base Rate shall
mean the per annum rate of interest equal to the Federal Funds Rate plus one
and one-half of one percent (1.50%).


 


“Base Rate Loan” means a Loan bearing interest at a rate
based on the Base Rate.


 


“Benefit Arrangement” means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan
or a Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.


 


“Borrower” has the meaning set forth in the introductory
paragraph hereof and shall include the Borrower’s successors and permitted
assigns.


 


2

















 


“Business Day” means (i) a day of the week (but not a
Saturday, Sunday or holiday) on which the offices of the Administrative Agent
in San Francisco, California are open to the public for carrying on
substantially all of the Administrative Agent’s business functions, and (ii) if
such day relates to a LIBOR Loan, any such day that is also a day on which
dealings in Dollars are carried on in the London interbank market.  Unless specifically referenced in this
Agreement as a Business Day, all references to “days” shall be to calendar
days.


 


“Capitalized Lease Obligation” means 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.


 


“Cash Equivalents” means: (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.


 


“Collateral” means any real or personal property directly or
indirectly securing any of the Obligations or any other obligation of a Person
under or in respect of any Loan Document or Specified Derivatives Contract to
which it is a party, and includes, without limitation, the “Subject Property” under and as defined in any Mortgage, and
all “Rents” as defined in the Mortgage and
all other property subject to a lien created by a Security Document.


 


“Collateral Assignment of Water Delivery Agreement” means that
certain Collateral Assignment of Agreement for Water Delivery dated as of November 13,
2007, among the Administrative Agent, Leasehold Mortgagor and MPC, as joined by
Borrower, as amended by the Amendment of Collateral Assignment dated as of even
date herewith.


 


“Commercial Property” means the real property described on Exhibit A
to the Mortgage as Parcel 2, Tax Map Key (2) 4-2-004-024, Parcel 3, Tax
Map Key (2) 4-2-004-035, and Parcel 11, Tax Map  Key (2) 4-2-004-043, and the portion of
Parcel 4, Tax Map Key (2) 4-2-004-036, which constitutes the Village
Clubhouse.


 


“Commitment” means a Revolving Commitment or
any combination thereof (as the context shall permit or require), in an
aggregate amount up to, but not exceeding the amount set forth for such Lender
on Schedule I hereto as such Lender’s respective “Revolving Commitment Amount”
(as the same may be reduced from time to time pursuant to Section 2.12. or
otherwise pursuant to the terms of this Agreement).


 


“Compliance Certificate” has the meaning given that term in Section 8.3.


 


3

















 


“Continue”, “Continuation”
and “Continued” each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest
Period pursuant to Section 2.9.


 


“Convert”, “Conversion” and
“Converted” each refers to the
conversion of a Loan of one Type into a Loan of another Type pursuant to Section 2.10.


 


“Credit Event” means any of the following: (a) the
making (or deemed making) of any Loan, (b) the Conversion of a Loan, (c) the
Continuation of a LIBOR Loan and (d) the issuance of a Letter of Credit.


 


“Default” means any of the events specified in Section 10.1.,
whether or not there has been satisfied any requirement for the giving of
notice, the lapse of time, or both.


 


“Defaulting Lender” has the meaning given that term in Section 3.9.


 


“Derivatives Contract” means (a) any transaction
(including any master agreement, confirmation or other agreement with respect
to any such transaction) now existing or hereafter entered into by the 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.


 


“Derivatives Support Document”  means
(i) any credit support annex comprising part of (and as defined in) any
Specified Derivatives Contract, and (ii) any document or agreement, other
than a Security Document, pursuant to which cash, deposit accounts, securities
accounts or similar financial asset collateral are pledged to or made available
for set-off by, a Specified Derivatives Provider, including any banker’s lien
or similar right, securing or supporting Specified Derivatives Obligation.


 


“Derivatives Termination Value” means, in respect of any one
or more Derivatives Contracts, after taking into account the effect of any
legally enforceable netting agreement or provision relating thereto, (a) for
any date on or after the date such Derivatives Contracts have been terminated
or closed out, the termination amount or value determined in accordance
therewith, and (b) for any date prior to the date such Derivatives
Contracts have been terminated or closed out, the then-current mark-to-market
value for such Derivatives Contracts, determined based upon one or more
mid-market quotations or estimates provided by any recognized dealer in
Derivatives Contracts (which may include the Administrative Agent, any Lender,
any Specified Derivatives Provider or any Affiliate of any thereof).


 


“Dollars” or “$” means the
lawful currency of the United States of America.


 


4

















 


“Effective Date” means the later of (a) the Agreement
Date and (b) the date on which all of the conditions precedent set forth
in Section 5.1. shall have been fulfilled or waived.


 


“Eligible Assignee” means (a) a Lender, (b) an
Affiliate of a Lender, (c) an Approved Fund and (d) any other Person
(other than a natural person) approved by (i) the Administrative Agent and
(ii) unless a Default or Event of Default exists, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


“Equity Interest” means, 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, 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.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as amended.


 


“ERISA Group” means the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.


 


“Event of Default” means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other
condition has been satisfied.


 


“Exchange Act” means the Securities Exchange Act of 1934, as
amended from time to time, together with all rules and regulations issued
thereunder.


 


“Existing Credit Agreement” shall have the meaning given such
term in the recitals of this Agreement.


 


“Existing Letters of Credit”
shall mean the “Letters of Credit”  issued under and
as defined in the Existing Credit Agreement.


 


“Federal Funds Rate” means, for
any period, a fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight Federal Funds
transactions with  members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal Funds brokers of recognized standing selected by the
Administrative Agent.


 


“Fee Letter” means that certain fee letter dated as of June 17,
2009, by and between the Borrower and the Administrative Agent.


 


“Fees” means the fees and commissions provided for or
referred to in Section 3.5. and any other fees payable by the Borrower
hereunder, under any other Loan Document or under the Fee Letter.


 


5

















 


“FIRREA” means the Financial Institution Recovery, Reform and
Enforcement Act of 1989, as amended.


 


“Fund” means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.


 


“GAAP” means 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.


 


“Golf Academy Property”  means the real
property consisting of approximately 28.9 acres of entitled land described as
Parcel 4, Tax Map Key (2) 4-2-004-036, on Exhibit A to the Mortgage,
except for the portion thereof, consisting of approximately 1.4 acres, which is
known as the Village Clubhouse.


 


“Governmental Approvals” means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.


 


“Governmental Authority” means 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.


 


“Guarantor”
means any Person that is party to a Guaranty as a “Guarantor.”


 


“Guaranty”, “Guaranteed” or to
“Guarantee” as applied to any obligation
means and includes:  (a) a guaranty
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), directly or indirectly, in any manner, of any
part or all of such obligation, or (b) an agreement, direct or indirect,
contingent or otherwise, and whether or not constituting a guaranty, the
practical effect of which is to assure the payment or performance (or payment
of damages in the event of nonperformance) of any part or all of such
obligation whether by: (i) the purchase of securities or obligations, (ii) the
purchase, sale or lease (as lessee or lessor) of property or the purchase or
sale of services primarily for the purpose of enabling the obligor with respect
to such obligation to make any payment or performance (or payment of damages in
the event of nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss, (iii) the
supplying of  funds to or in
any other manner investing in the obligor with respect to such obligation, (iv) repayment
of amounts drawn down by beneficiaries of letters of credit (including Letters
of Credit), or (v) the supplying of funds to or investing in a Person on
account of all or any part of such Person’s obligation under a Guaranty of any
obligation or indemnifying or holding harmless, in any way, such Person against
any part or all of such obligation.  As
the context requires, “Guaranty” shall also mean any Guaranty of the Obligation
which may now or in the future be executed.


 


“Hazardous Materials” shall have the meaning given such term
in Section 6.1(o).


 


“Hazardous Materials Claims” shall have the meaning given
such term in Section 6.1(o).


 


6

















 


“Hazardous Materials Laws” shall have the meaning given such
term in Section 6.1(o).


 


“Indebtedness” means, 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 Derivatives 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.


 


Notwithstanding
the foregoing, Indebtedness shall not include any guaranties, contingent
liabilities or other obligations relating to, or arising in connection with,
Borrowers direct or indirect interests in KBH or W2005 Kapalua.


 


“Indemnifiable Amounts” has the meaning given that term in Section 11.8.


 


“Indemnified Party” has the meaning given that term in Section 12.10.(a).


 


“Indemnity Proceeding” has the meaning given that term in Section 12.10.(a).


 


“Information Materials” has the meaning given that term in Section 8.6.


 


“Intellectual Property” has the meaning given that term in Section 6.1(s).


 


“Interest Holdback” means an amount (equal initially, to $0)
sufficient in the reasonable discretion of the Administrative Agent to pay the
projected amount by which interest payable on the aggregate Revolving
Commitments (whether disbursed or not) exceeds or is projected to exceed net
operating income from the Commercial Property through the Maturity Date, which
amount may be reduced or increased at the end of each calendar quarter
following the Effective Date as the Administrative Agent deems in its
reasonable discretion is necessary.


 


“Interest Period” means, with respect to each LIBOR Loan,
each period commencing on the date such LIBOR Loan is made, or in the case of
the Continuation of a LIBOR Loan the last day of the preceding Interest Period
for such Loan, and ending on the numerically corresponding day in the first,
third or sixth calendar month thereafter, as the Borrower may select in a
Notice of Borrowing, Notice of Continuation or Notice of Conversion, as the
case may be, except that each Interest Period that


 


7

















 


commences
on the last Business Day of a calendar month (or on any day for which there is
no numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.  In addition to such
periods, the Borrower may request Interest Periods for LIBOR Loans having
durations of at least 7, but not more than 30, days no more than ten times
during any 12-month period beginning during the term of this Agreement but only
in anticipation of (i) the Borrower’s prepayment of such LIBOR Loans from
equity or debt offerings, financings or proceeds resulting from the sale or
other disposition of major assets of the Borrower or any of its Subsidiaries or
(ii) changes in the amount of the Lenders’ Commitments associated with a
modification of this Agreement; and


 


Notwithstanding
the foregoing: (i) if any Interest Period would otherwise end after the
Maturity Date, such Interest Period shall end on the Maturity Date; and (ii) each
Interest Period that would otherwise end on a day which is not a Business Day
shall end on the immediately following Business Day (or, if such immediately
following Business Day falls in the next calendar month, on the immediately
preceding Business Day).


 


“Internal Revenue Code” means the Internal Revenue Code of
1986, as amended.


 


“Investment” means, with respect to any Person, any
acquisition or investment (whether or not of a controlling interest) by such
Person, whether by means of any of the following: (a) the purchase or
other acquisition of any Equity Interest in another Person, (b) a loan,
advance or extension of credit to, capital contribution to, Guaranty of
Indebtedness of, or purchase or other acquisition of any Indebtedness of,
another Person, including any partnership or joint venture interest in such
other Person, (c) the purchase or other acquisition (in one transaction or
a series of transactions) of assets of another Person that constitute the
business or a division or operating unit of another Person, and (d) any
kind of joint venture arrangement with another Person.  Any commitment to make an Investment in any
other Person, as well as any option of another Person to require an Investment
in such Person, shall constitute an Investment. 
Except as expressly provided otherwise, for purposes of determining
compliance with any covenant contained in a Loan Document, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.


 


“Issuing Bank” means Wells Fargo or any other Lender, each in
its capacity as an issuer of Letters of Credit pursuant to Section 2.2.


 


“Kahului Mortgage” means that certain Mortgage, Assignment of
Leases and Rents, Security Agreement and Fixture Filing dated as of October 10,
2008, made by Borrower, as Mortgagor, in favor of Ramius, as Collateral Agent
for each of the Buyers (as defined therein) and recorded on October 16,
2008, as Document No. 2008-159864 in the State of Hawaii Bureau of
Conveyances.


 


“Kahului Notes” means the “Notes” as defined in the Kahului
SPA.


 


“Kahului Prepayment” with respect to the sale or other
disposition of all or any portion of the Kahului Property, means, for each such
sale or disposition, a payment equal to (x) (i) the amount of any
cash and fair value of any non-cash consideration payable in connection with
such sale or disposition minus (ii) the Kahului Release Price
payable in connection with such sale or disposition minus (iii) amounts
actually paid by Borrower, if any, for the remediation of, and the settlement
of claims with respect to, the portion of the Kahului Property being sold prior
to the sale thereof minus (iv) customary and reasonable closing
costs actually paid by Borrower in connection with such sale or disposition
including escrow, closing, recording, title and legal fees (not to exceed 7.0%
of the aggregate value of the consideration in clause (i) above), (y) multiplied
by fifty percent (50%).


 


8

















 


“Kahului Property” means an approximately 25 acre parcel
located in Maui, Hawaii, with a Tax Map Key Number of (2) 3-7-002-001,
which is encumbered by the Kahului Mortgage.


 


“Kahului Release Price” with respect to the sale or other
disposition of all or any portion of the Kahului Property, means the lesser of (i) thirty
percent (30%) of the gross proceeds of such sale and (ii) the Asset Sale
Deposit Amount (as defined in the Kahului Notes) payable with respect to such
sale or other disposition pursuant to the terms of the Kahului Mortgage and the
Kahului Notes.


 


“Kahului SPA” means that certain Securities Purchase
Agreement dated as of July 27, 2008, by and among the investors identified
on the signature pages thereof and the Borrower.


 


“Kapalua Mauka Property” means the real property consisting
of (in aggregate) approximately 927.726 acres of entitled land described on Exhibit A
to the Mortgage as (a) Parcel 1, Tax Map Key (2) 4-2-001-042 (por.)
(approximately 740.026 acres), and (b) Parcel 1a, Tax Map Key (2) 4-3-001-008,
and Parcel 1b, Tax Map Key (2) 4-3-001-006 (together, approximately 187.70
acres).


 


“KBH” means Kapalua Bay Holdings, LLC, a Delaware limited
liability company.


 


“Land” means the Kapalua Mauka Property and the Golf Academy
Property.


 


“Leasehold Mortgagor” means Kapalua Land Company, Ltd., a
Hawaii corporation.


 


“Lender” means each financial institution
from time to time party hereto as a “Lender,” together with its respective
successors and permitted assigns, and, as the context requires, includes the
Swingline Lender; provided, however, that the term “Lender” shall except as
otherwise expressly provided herein, shall not include any Lender (or its
Affiliates) in its capacity as a Specified Derivatives Provider.


 


“Lending Office” means, for each Lender and for each Type of
Loan, the office of such Lender specified in such Lender’s Administrative
Questionnaire or in the applicable Assignment and Assumption Agreement, or such
other office of such Lender as such Lender may notify the Administrative Agent
in writing from time to time.


 


“Letter of Credit” has the meaning given that term in Section 2.2.(a).


 


“Letter of Credit Collateral Account” means a special deposit
account maintained by the Administrative Agent and under its sole dominion and
control.


 


“Letter of Credit Documents” means, with respect to any
Letter of Credit, collectively, any application therefor, any certificate or
other document presented in connection with a drawing under such  Letter of Credit and any
other agreement, instrument or other document governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such
obligations.


 


“Letter of Credit Liabilities” means, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a) the Stated
Amount of such Letter of Credit plus (b) the aggregate unpaid principal
amount of all Reimbursement Obligations of the Borrower at such time due and
payable in respect of all drawings made under such Letter of Credit.  For purposes of this Agreement, a Lender
(other than the Lender then acting as Issuing Bank) shall be deemed to hold a
Letter of Credit Liability in an amount equal to its participation interest
under Section 2.2. in the related Letter of Credit, and the Lender then
acting as the Issuing Bank shall be deemed to hold a Letter of Credit Liability
in an amount equal to its retained interest in the related Letter of Credit
after giving effect to the acquisition by the Lenders (other than the Lender
then acting as the Issuing Bank) of their participation interests under such
Section.


 


9

















 


“LIBOR” means, for the Interest Period for any LIBOR Loan,
the rate of interest, rounded up to the nearest whole multiple of one-hundredth
of one percent (.01%), obtained by dividing (i) the rate of interest,
rounded upward to the nearest whole multiple of one-sixteenth of one percent
(0.0625%), referred to as the BBA (British Bankers’ Association) LIBOR rate as
set forth by any service selected by the Administrative Agent that has been
nominated by the British Bankers’ Association as an authorized information
vendor for the purpose of displaying such rate for deposits in U.S. Dollars at
approximately 9:00 a.m. Pacific time, two (2) Business Days prior to
the date of commencement of such Interest Period for purposes of calculating
effective rates of interest for loans or obligations making reference thereto,
for an amount approximately equal to the applicable LIBOR Loan and for a period
of time approximately equal to such Interest Period by (ii) a
percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as
specified in Regulation D of the Board of Governors of the Federal Reserve
System (or against any other category of liabilities which includes deposits by
reference to which the interest rate on LIBOR Loans is determined or any
applicable category of extensions of credit or other assets which includes
loans by an office of any Lender outside of the United States of America).  Any change in such maximum rate shall result
in a change in LIBOR on the date on which such change in such maximum rate becomes
effective.


 


“LIBOR Loan” means a Loan bearing interest at a rate based on
LIBOR.


 


“LIBOR Market Index Rate” means, for any
day, LIBOR 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.


 


“Lien” as applied to the property of any Person means:  (a) any security interest, encumbrance,
mortgage, deed to secure debt, deed of trust, assignment of leases or rents,
pledge, lien, hypothecation, assignment, charge or lease constituting a
Capitalized Lease Obligation, conditional sale or other title retention
agreement, or other security title or encumbrance of any kind in respect of any
property of such Person, or upon the income, rents or profits therefrom; (b) any
arrangement, express or implied, under which any property of such Person is
transferred, sequestered or otherwise identified for the purpose of subjecting
the same to the payment of Indebtedness or performance of any other obligation
in priority to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the UCC or its equivalent in any
jurisdiction; and (d) any agreement by such Person to grant, give or
otherwise convey any of the foregoing.


 


“Liquidity” has the meaning given that term in Section 9.1.


 


“Loan” means a Revolving Loan or a Swingline Loan or, as the
context requires, a Revolving Loan and a Swingline Loan.


 


“Loan Document” means this Agreement, each Note, each
Security Document, each Letter of Credit Document and each other document or
instrument now or hereafter executed and delivered by a Loan Party in
connection with, pursuant to or relating to this Agreement (other than the Fee
Letter and any Specified Derivatives Contract).


 


10
















 


“Loan Party” means each of the Borrower, each other Person
who guarantees all or a portion of the Obligations and/or who pledges any
Collateral to secure all or a portion of the Obligations, including, without
limitation, Leasehold Mortgagor.


 


“Mandatorily Redeemable Stock” means, 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
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.


 


“Material Adverse Effect” means a materially adverse effect
on (a) the business, assets, liabilities, condition (financial or
otherwise), results of operations or business prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the ability of the Borrower or any
other Loan Party to perform its obligations under any Loan Document to which it
is a party, (c) the validity or enforceability of any of the Loan
Documents, (d) the rights and remedies of the Lenders, the Issuing Bank
and the Administrative Agent under any of the Loan Documents or (e) the
timely payment of the principal of or interest on the Loans or other amounts
payable in connection therewith or the timely payment of all Reimbursement
Obligations.


 


“Material Contract” means any lease, contract or other
arrangement (other than Loan Documents and Specified Derivatives Contracts),
whether written or oral, to which the Borrower, any Subsidiary or any other
Loan Party is a party as to which the breach, nonperformance, cancellation or
failure to renew by any party thereto could reasonably be expected to have a
Material Adverse Effect.]


 


“Material Indebtedness” shall have the meaning given
such term in Section 10.1.(d).


 


“Material Plan” means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $1,000,000.


 


“Maturity Date” means March 1, 2011.


 


“Moody’s” means Moody’s Investors Service, Inc.


 


“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 and a
Memorandum of Third Modification Agreement Amending Mortgage, dated as of even
date herewith.


 


11

















 


“MPC” means Maui Pineapple Company, Ltd., a Hawaii
corporation, or a successor entity  which
holds all or substantially all of its assets pursuant to a merger, sale or
other transaction which has been approved by the Administrative Agent in its
reasonable discretion.


 


“Multiemployer Plan” means at any time a multiemployer plan
within the meaning of Section 4001(a)(3) of ERISA to which any member
of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.


 


“Negative Pledge” means, with respect to a given asset, any
provision of a document, instrument or agreement (other than any Loan Document
or Specified Derivatives Contract) which prohibits or purports to prohibit the
creation or assumption of any Lien on such asset as security for Indebtedness
of the Person owning such asset or any other Person; provided, however, that an
agreement that conditions a Person’s ability to encumber its assets upon the
maintenance of one or more specified ratios that limit a Person’s ability to
encumber its assets but that do not generally prohibit the encumbrance of its
assets, or the encumbrance of specific assets, shall not constitute a Negative
Pledge.


 


“Note” means a Revolving Note or a Swingline Note.


 


“Notice of Borrowing” means a notice substantially in the
form of Exhibit B (or such other form reasonably acceptable to the
Administrative Agent and containing the information required in such Exhibit)
to be delivered to the Administrative Agent pursuant to Section 2.1.(b) evidencing
the Borrower’s request for a borrowing of Revolving Loans.


 


“Notice of Continuation” means a notice substantially in the
form of Exhibit C (or such other form reasonably acceptable to the
Administrative Agent and containing the information required in such Exhibit)
to be delivered to the Administrative Agent pursuant to Section 2.9.
evidencing the Borrower’s request for the Continuation of a LIBOR Loan.


 


“Notice of Conversion” means a notice substantially in the
form of Exhibit D (or such other form reasonably acceptable to the
Administrative Agent and containing the information required in such Exhibit)
to be delivered to the Administrative Agent pursuant to Section 2.10.
evidencing the Borrower’s request for the Conversion of a Loan from one Type to
another Type.


 


“Notice of Swingline Borrowing” means a notice substantially
in the form of Exhibit E (or such other form reasonably acceptable to the
Administrative Agent and containing the information required in such Exhibit)
to be delivered to the Swingline Lender pursuant to Section 2.3.(b) evidencing
the Borrower’s request for a Swingline Loan.


 


“Obligations” means, individually and collectively: (a) the
aggregate principal balance of, and all accrued and unpaid interest on, all
Loans; (b) all Reimbursement Obligations and all other Letter of Credit
Liabilities; and (c) all other indebtedness, liabilities, obligations,
covenants and duties of the Borrower or any of the other Loan Parties owing to
the Administrative Agent, the Issuing Bank or any Lender of every kind, nature
and description, under or in respect of this Agreement or any of the other Loan
Documents, including, without limitation, the Fees and indemnification
obligations, whether direct or indirect, absolute or contingent, due or not
due, contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any promissory note.  For the
avoidance of doubt, “Obligations” shall not include Specified Derivatives
Obligations.


 


“Off-Balance Sheet Obligations” means liabilities and obligations of the Borrower, any Subsidiary or
any other Person in respect of “off-balance sheet arrangements” (as defined in
Item


 


12

















 


303(a)(4)(ii) of
Regulation S-K promulgated under the Securities Act) which the Borrower would
be required to disclose in the “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” section of the Borrower’s report
on Form 10-Q or Form 10-K (or their equivalents) which the Borrower
is required to file with the SEC (or any Governmental Authority substituted
therefor).


 


“Ownership Share” means, with respect to any Subsidiary of a
Person (other than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate
of a Person, the greater of (a) such Person’s relative nominal direct and
indirect ownership interest (expressed as a percentage) in such Subsidiary or
Unconsolidated Affiliate or (b) subject to compliance with Section 8.4.(q),
such Person’s relative direct and indirect economic interest (calculated as a
percentage) in such Subsidiary or Unconsolidated Affiliate determined in
accordance with the applicable provisions of the declaration of trust, articles
or certificate of incorporation, articles of organization, partnership
agreement, joint venture agreement or other applicable organizational document
of such Subsidiary or Unconsolidated Affiliate.


 


“Participant” has the meaning given that term in Section 12.6.(b).


 


“PBGC” means the Pension Benefit Guaranty Corporation and any
successor agency.


 


“Permitted Investment”
means, without duplication, (a) Investments in cash and Cash Equivalents, (b) Investments
in negotiable instruments for collection, (c) Investments received in
settlement of amounts due to the Borrower effected in the ordinary course of
business or owing to the Borrower upon the foreclosure or enforcement of any
Lien in favor of the Borrower, (d) Investments in MPC in the aggregate amount
of up to $5,000,000 from and after the Effective Date and (e) Investments
up to the amount of $3,500,000 made in connection with the purchase (or the
termination or deferral of the commitment to purchase) assets under the Spa
Agreement.


 


“Permitted Liens” means, with respect to any asset or
property of a Person, (a)(i) Liens securing taxes, assessments and other
charges or levies imposed by any Governmental Authority (excluding any Lien
imposed pursuant to any of the provisions of ERISA or pursuant to any Hazardous
Materials Laws) or (ii) the claims of materialmen, mechanics, carriers,
warehousemen or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, which, in each case, are not at the time
required to be paid or discharged under Section 7.6.; (b) Liens
consisting of deposits or pledges made, in the ordinary course of business, in
connection with, or to secure payment of, obligations under workers’
compensation, unemployment insurance or similar Applicable Laws; (c) Liens
consisting of encumbrances in the nature of zoning restrictions, easements, and
rights or restrictions of record on the use of real property, which do not
materially detract from the value of such property or impair the intended use
thereof in the business of such Person; (d) the rights of tenants under
leases or subleases not interfering with the ordinary conduct of business of
such Person; (e) Liens on amounts deposited in connection with the making
or entering into of  bids, tenders, statutory
obligations, government contracts or leases in the ordinary course of business;
(f) Liens on amounts deposited as security for surety or appeal bonds in
connection with obtaining such bonds in the ordinary course of business; (g) all
matters shown on the Title Insurance Policy; (h) Liens in favor of the
Administrative Agent for its benefit and the benefit of the Lenders, the
Issuing Bank and each Specified Derivatives Provider, (i) other Liens
securing Specified Derivatives Obligations pursuant to Derivatives Support
Documents; and (j) Liens permitted under any Security Documents.


 


“Person” means any natural person, corporation, limited
partnership, general partnership, joint stock company, limited liability
company, limited liability partnership, joint venture, association,  company, trust, bank, trust
company, land trust, business trust or other organization, whether or not a
legal entity, or any other nongovernmental entity, or any Governmental
Authority.


 


13

















 


“Plan” means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the ERISA Group or (ii) has
at any time within the preceding five years been maintained, or contributed to,
by any Person which was at such time a member of the ERISA Group for employees
of any Person which was at such time a member of the ERISA Group.


 


“Post-Default Rate” means, in respect of any principal of any
Loan or any Reimbursement Obligation that is not paid when due, the rate
otherwise applicable plus an additional five  percent  5% per annum and with respect to any other Obligation that
is not paid when due (whether at stated maturity, by acceleration, by optional
or mandatory prepayment or otherwise) a rate per annum equal to Base Rate as in
effect from time to time plus five  percent 5.0%.


 


“Post Foreclosure Plan” has the meaning given that term in Section 11.4.


 


“Preferred Stock” means, with respect to any Person, shares
of capital stock of, or other Equity Interests in, such Person which are
entitled to preference or priority over any other capital stock of, or other
Equity Interest in, such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both.


 


“Principal Office” means Los Angeles Loan
Center, 2120 East Park Place, Suite 100, El Segundo, CA  90245, Attn: 
Ivonne Lopez.


 


“Property” means all or any of the Kapalua Mauka Property,
the Golf Academy Property and the Commercial Property, as the context requires.


 


“Pro Rata Share” means, as to each Lender,
the ratio, expressed as a percentage of (a) the sum of the amount of such
Lender’s Revolving Commitment to (b) the sum of the aggregate amount of
the Revolving Commitments of all Lenders; provided, however, that if at the
time of determination the Revolving Commitments have terminated or been reduced
to zero, the “Pro Rata Share” of each Lender shall be the ratio, expressed as a
percentage of (A) the sum of the unpaid principal amount of all
outstanding Revolving Loans, Swingline Loans and Letter of Credit Liabilities
owing to such Lender as of such date to (B) the sum of the aggregate
unpaid principal amount of all outstanding Revolving Loans, Swingline Loans and
Letter of Credit Liabilities of all Lenders as of such date.


 


“Protective Advance” means all sums expended as determined by
the Administrative Agent to be necessary or appropriate after the Borrower
fails to do so when required: (a) to protect the validity, enforceability,
perfection or priority of the Liens in any of the Collateral and the
instruments evidencing the Obligations; (b) to prevent the value of any
Collateral from being materially diminished (assuming the lack of such a
payment within the necessary time frame could potentially cause such Collateral
to lose value); or (c) to protect any of the Collateral from being
materially damaged, impaired, mismanaged or taken, including, without
limitation, any amounts expended in connection therewith in accordance with Section 12.2.


 


“Ramius” means Ramius Advisors, LLC, a Delaware limited
liability company.


 


“Regulatory Change” means, with respect to any Lender, any
change effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be


 


14

















 


unlawful)
by any Governmental Authority or monetary authority charged with the
interpretation or administration thereof or compliance by any Lender with any
request or directive regarding capital adequacy.


 


“Reimbursement Obligation” means the obligation of the
Borrower to reimburse the Issuing Bank for any drawing honored by the Issuing
Bank under a Letter of Credit.


 


“Requisite Lenders” means, as of any date,
Lenders (which shall include the Lender then acting as the Administrative
Agent) having at least 66-2/3% of the aggregate amount of the Revolving
Commitments, or, if the Revolving Commitments have been terminated or reduced
to zero, Lenders holding at least 66 2/3% of the aggregate principal amount of
the outstanding Revolving Loans, Swingline Loans and Letter of Credit
Liabilities; provided that (a) in determining such percentage at any given
time, all then existing Defaulting Lenders will be disregarded and excluded,
and the Pro Rata Shares shall be redetermined, for voting purposes only, to
exclude the Pro Rata Shares of such Defaulting Lenders, and (b) at all
times when two or more Lenders are party to this Agreement, the term “Requisite
Lenders” shall in no event mean less than two Lenders.


 


“Restricted Payment” means: (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock or other Equity Interest of the Borrower or any of its Subsidiaries now
or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class; (b) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any shares of any class of
stock or other Equity Interest of the Borrower or any of its Subsidiaries now
or hereafter outstanding; (c) any payment or prepayment of principal of,
premium, if any, or interest on, redemption, conversion, exchange, purchase,
retirement, defeasance, sinking fund or similar payment with respect to, any
Subordinated Debt; and (d) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire any
Equity Interests of the Borrower or any of its Subsidiaries now or hereafter
outstanding.


 


“Revolving Commitment” means, as to each Lender, such Lender’s
obligation to make Revolving Loans pursuant to Section 2.3., to
participate in Letters of Credit pursuant to Section 2.2.(i), and to
participate in Swingline Loans pursuant to Section 2.5.(e), in an amount up
to, but not exceeding the amount set forth for such Lender on Schedule I as
such Lender’s “Revolving Commitment Amount”, as the same may be reduced from
time to time pursuant to Section 2.12. or otherwise pursuant to the terms
of this Agreement.


 


“Revolving Commitment Percentage” means, as to each Lender
with a Revolving Commitment, the ratio, expressed as a percentage, of (a) the
amount of such Lender’s Revolving Commitment to (b) the aggregate amount
of the Revolving Commitments of all Lenders hereunder; provided, however, that
if at the time of determination the Revolving Commitments have been terminated
or been reduced to zero, the “Revolving Commitment Percentage” of each Lender
with a Revolving Commitment shall be the “Revolving Commitment Percentage” of
such Lender in effect immediately prior to such termination or reduction.


 


“Revolving Loan” means a loan made by a Lender to the
Borrower pursuant to Section 2.1.(a).


 


“Revolving Note” means a promissory note of
the Borrower substantially in the form of Exhibit F, payable to the order
of a Lender in a principal amount equal to the amount of such Lender’s
Revolving Commitment.


 


“SEC” means the United States Securities and Exchange
Commission.


 


15

















 


“Securities Act” means the Securities Act of 1933, as amended
from time to time, together with all rules and regulations issued
thereunder.


 


“Security Document” means the Guaranty, any Mortgage, and any
security agreement, pledge agreement, financing statement, or other document,
instrument or agreement creating, evidencing or perfecting the Administrative
Agent’s Liens in any of the Collateral. 
For the avoidance of doubt, “Security Document” shall not include any
Derivatives Support Document.


 


“Site Assessment” shall have the meaning given such term in Section 6.1(o).


 


“Solvent” means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities); (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature; and (c) such Person has capital not unreasonably small to carry
on its business and all business in which it proposes to be engaged.


 


“Spa Agreement” means collectively, the Agreement of Purchase
and Sale relating to the spa improvements, dated as of June 19, 2006, by
and between the Borrower and Kapalua Bay, LLC, a Delaware limited liability
company, the Agreement of Purchase and Sale relating to the beach club, dated
as of June 19, 2006, by and between the same parties, and the Agreement of
Purchase and Sale relating to the Kapalua general store, dated as of June 19,
2006, by and between the same parties, and any amendments to any of such
agreements.


 


“Specified Derivatives Contract” means any Derivatives
Contract, together with any Derivatives Support Document relating thereto, that
is made or entered into at any time, or in effect at any time now or hereafter,
whether as a result of an assignment or transfer or otherwise, between the
Borrower or any Subsidiary of the Borrower and an Specified Derivatives
Provider.


 


“Specified Derivatives Obligations” means all indebtedness,
liabilities, obligations, covenants and duties of the Borrower or its
Subsidiaries under or in respect of any Specified Derivatives Contract, whether
direct or indirect, absolute or contingent, due or not due, liquidated or
unliquidated, and whether or not evidenced by any written confirmation.


 


“Specified Derivatives Provider” means any Lender, or any
Affiliate of a Lender that is a party to a Derivatives Contract at the time the
Derivatives Contract is entered into.


 


“S&P” means Standard & Poor’s Rating Services, a
division of The McGraw-Hill Companies, Inc.


 


“Stated Amount” means the amount available to be drawn by a
beneficiary under a Letter of Credit from time to time, as such amount may be
increased or reduced from time to time in accordance with the terms of such
Letter of Credit.


 


“Subdivision Map” shall have the meaning given
such term in Section 7.13.


 


“Subordinated Debt” means Indebtedness for money borrowed of
the Borrower or any of its Subsidiaries that is subordinated in right of payment
and otherwise to the Loans, the other Obligations and the Specified Derivatives
Obligations, if any, in a manner satisfactory to the Administrative Agent in
its sole and absolute discretion.


 


16

















 


“Subsidiary”
means, for any Person, any corporation, partnership, limited liability company
or other entity of which at least a majority of the Equity Interests having by
the terms thereof ordinary voting power to elect a majority of the board of
directors or other individuals performing similar functions of such
corporation, partnership, limited liability company or other entity (without
regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts
of which are consolidated with those of such Person pursuant to GAAP.  For the avoidance of doubt, the parties agree
that KBH shall not be deemed to be a Subsidiary.


 


“Swingline Commitment” means the Swingline Lender’s
obligation to make Swingline Loans pursuant to Section 2.3.  in an amount up to, but not exceeding the
amount set forth in the first sentence of Section 2.3.(a), as such amount
may be reduced from time to time in accordance with the terms hereof.


 


“Swingline Lender” means Wells Fargo Bank, National
Association, together with its respective successors and assigns.


 


“Swingline Loan” means a loan made by
the Swingline Lender to the Borrower pursuant to Section 2.3.


 


“Swingline Maturity Date” means the date
which is seven (7) Business
Days prior to the Maturity Date.


 


“Swingline Note” means the
promissory note of the Borrower substantially in the form of Exhibit G,
payable to the order of the Swingline Lender in a principal amount equal to the
amount of the Swingline Commitment as originally in effect and otherwise duly
completed.


 


“Taxes” has the meaning given that term in Section 3.10.


 


“Title Insurance Policy” means, collectively, six Policies of
Title Insurance issued by First American Title Insurance Company, all dated November 15,
2007, covering the real property described in the Mortgage, having the
following Policy Numbers: FCW-000213201 through FCW-000213205, and
FCW-000213212, as amended.


 


“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.


 


“Transfer Authorizer Designation Form” means a form
substantially in the form of Exhibit H to be delivered to the
Administrative Agent pursuant to Section 2.15, as the same may be amended,
restated or modified from time to time with the prior written approval of the
Administrative Agent.


 


“Type” with respect to any Loan, refers to
whether such Loan is a LIBOR Loan or a Base Rate Loan.


 


“UCC” means the Uniform Commercial Code as in effect in any
applicable jurisdiction.


 


“Unconsolidated Affiliate” means, 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.


 


17

















 


“Unfunded Liabilities” means, with respect to any Plan at any
time, the amount (if any) by which (a) the value of all benefit
liabilities under such Plan, determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA,
exceeds (b) the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.


 


“Village Clubhouse” means an approximately 1.4
acre parcel which is a part of the Golf Academy


 


“W2005 Kapalua” means W2005 Kapalua/Gengate Hotel Holdings,
L.L.C., a Delaware limited liability company.


 


“Water Delivery Agreement” shall mean that certain Agreement
for Water Delivery, dated June 21, 2006, but effective as of January 1,
2006, between MPC and Leasehold Mortgagor, as amended by that certain Amendment
for Water Delivery, dated November 7, 2007, and as further amended by that
certain Second Amendment for Water Delivery, dated March 27, 2009.


 


“Wells Fargo” means Wells Fargo Bank, National Association,
and its successors and assigns.


 


“Wholly Owned Subsidiary” means any Subsidiary of a Person in
respect of which all of the Equity Interests (other than, in the case of a
corporation, directors’ qualifying shares) are at the time directly or
indirectly owned or controlled by such Person or one or more other Subsidiaries
of such Person or by such Person and one or more other Subsidiaries of such
Person.


 


Section 1.2.  General; References to Pacific Time.


 


Unless
otherwise indicated, all accounting terms, ratios and measurements shall be
interpreted or determined in accordance with GAAP as in effect on the Agreement
Date; provided that, if at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Requisite Lenders shall so request,
the Administrative Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Requisite Lenders); provided further that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.  References in this Agreement to “Sections”, “Articles”,
“Exhibits” and “Schedules” are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. 
References in this Agreement to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall
include all documents, instruments or agreements issued or executed in
replacement thereof, to the extent permitted hereby and (c) shall mean
such document, instrument or agreement, or replacement or  predecessor thereto, as
amended, supplemented, restated or otherwise modified from time to time to the
extent not otherwise stated herein or prohibited hereby and in effect at any
given time.  Wherever from the context it
appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, the feminine and the neuter.  Unless explicitly set forth to the contrary,
a reference to “Subsidiary” means a Subsidiary of the Borrower or a Subsidiary
of such Subsidiary and a reference to an “Affiliate” means a reference to an
Affiliate of the Borrower.  Titles and
captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.  Unless otherwise indicated,
all references to time are references to Pacific time.


 


18
















 


ARTICLE
II. CREDIT FACILITY


 


Section 2.1.  Revolving Loans.


 


(a)           Making of Revolving Loans.  Subject to the terms and conditions set forth
in this Agreement, including without limitation, Section 2.14.  below, each Lender severally and not jointly agrees to make
Revolving Loans to the Borrower during the period from and including the
Effective Date to but excluding the Maturity Date, in an aggregate principal
amount at any one time outstanding up to, but not exceeding, such Lender’s
Revolving Commitment; provided, however Revolving Loans shall not be made if
restricted by the amount limitations set forth in Section 2.14.  Each borrowing of Revolving Loans hereunder
shall be in an aggregate principal amount of $200,000 and integral multiples of
$100,000 in excess of that amount (except that, subject to Section 2.14.,
any such borrowing of Revolving Loans may be in the aggregate amount of the
Revolving Commitments of all Lenders minus the sum of the aggregate
principal balance of all Revolving Loans and Swingline Loans outstanding, the
Letter of Credit Liabilities and the Interest Holdback, which Revolving Loans,
if less than $500,000, must be Base Rate Loans).  Within the foregoing limits and subject to
the terms and conditions of this Agreement, the Borrower may borrow, repay and
reborrow Revolving Loans.


 


(b)           Requests for Revolving Loans.  Not later than noon Pacific time at least one
(1) Business Day prior to a borrowing of Base Rate Loans and not later
than noon Pacific time at least three (3) Business Days prior to a
borrowing of LIBOR Loans, the Borrower shall deliver to the Administrative
Agent a Notice of Borrowing.  Each Notice
of Borrowing shall specify the aggregate principal amount of the Revolving
Loans to be borrowed, the date such Revolving Loans are to be borrowed (which
must be a Business Day), the use of the proceeds of such Revolving Loans, the
Type of the requested Revolving Loans, and if such Revolving Loans are to be
LIBOR Loans, the initial Interest Period for such Revolving Loans.  Each Notice of Borrowing shall be irrevocable
once given and binding on the Borrower. 
Prior to delivering a Notice of Borrowing, the Borrower may (without
specifying whether a Revolving Loan will be a Base Rate Loan or a LIBOR Loan)
request that the Administrative Agent provide the Borrower with the most recent
LIBOR available to the Administrative Agent. 
The Administrative Agent shall provide such quoted rate to the Borrower
on the date of such request or as soon as possible thereafter.


 


(c)           Funding of Revolving Loans.  Promptly after receipt of a Notice of
Borrowing under the immediately preceding subsection (b),  the
Administrative Agent shall notify each Lender of the proposed borrowing.  Each Lender shall deposit an amount equal to
the Revolving Loan to be made by such Lender to the Borrower with the
Administrative Agent at the Principal Office, in immediately available funds
not later than noon Pacific time  on the date of
such proposed Revolving Loans.  Subject
to fulfillment of all applicable conditions set forth herein, the
Administrative Agent shall make available to the Borrower at the Principal
Office on the date of the requested borrowing of Revolving Loans, the proceeds
of such amounts received by the Administrative Agent.  No Lender shall be responsible for the
failure of any other Lender to make a Loan or to perform any other obligation
to be made or performed by such other Lender hereunder, and the failure of any
Lender to make a Loan or to perform any other obligation to be made or
performed by it hereunder shall not relieve the obligation of any other Lender
to make any Loan or to perform any other obligation to be made or performed by
such other Lender.


 


(d)           Assumptions Regarding Funding by
Lenders.  With respect to Revolving
Loans to be made after the Effective Date, unless the Administrative Agent
shall have been notified by any Lender  that such Lender will not make available to
the Administrative Agent a Revolving Loan to be made by 


 


19

















 


such
Lender in connection with any borrowing, the Administrative Agent may assume
that such Lender will make the proceeds of such Revolving Loan available to the
Administrative Agent in accordance with this Section, and the Administrative
Agent may (but shall not be obligated to), in reliance upon such assumption,
make available to the Borrower the amount of such Revolving Loan to be provided
by such Lender.  In such event, if such
Lender does not make available to the Administrative Agent the proceeds of such
Revolving Loan, then such Lender and the Borrower severally agree to pay to the
Administrative Agent on demand the amount of such Revolving Loan with interest
thereon, for each day from and including the date such Revolving Loan is made
available to the Borrower but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay the
amount of such interest to the Administrative Agent for the same or overlapping
period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period.  If such Lender pays to the Administrative
Agent the amount of such Revolving Loan, the amount so paid shall constitute
such Lender’s Revolving Loan included in the borrowing.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make available the proceeds of a Revolving Loan to be made by such
Lender.


 


Section 2.2.  Letters of Credit.


 


(a)           Letters of Credit.  Subject to the terms and conditions of this
Agreement, including without limitation, Section 2.14., the Issuing Bank,
on behalf of the Lenders, agrees to issue for the account of the Borrower
during the period from and including the Effective Date to, but excluding, the
date thirty (30) days prior to the Maturity Date, one or more standby letters
of credit (each a “Letter of Credit”) up to a maximum aggregate Stated Amount
at any one time outstanding not to exceed $5,000,000
as such amount may be reduced from time to time in accordance with the terms
hereof.


 


(b)           Terms of Letters of Credit.  At the time of issuance, the amount, form,
terms and conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the Issuing Bank and the
Borrower.  Notwithstanding the foregoing,
in no event may (i) the expiration date of any Letter of Credit extend
beyond the Maturity Date, or (ii) any Letter of Credit have an initial
duration in excess of one year; provided, however, a Letter of Credit may
contain a provision providing for the automatic extension of the expiration
date in the absence of a notice of non-renewal from the Issuing Bank but in no
event shall any such provision permit the extension of the expiration date of
such Letter of Credit beyond the date that is thirty (30) days prior to the
Maturity Date.  The initial Stated Amount
of each Letter of Credit shall be at least $100,000.


 


(c)           Requests for Issuance of Letters
of Credit.  The Borrower shall give
the Issuing Bank and the Administrative Agent written notice at least ten (10) Business
Days prior to the requested date of issuance of a Letter of Credit, such notice
to describe in reasonable detail the proposed terms of such Letter of Credit
and the nature of the transactions or obligations proposed to be supported by
such Letter of Credit, and in any event shall set forth with respect to such
Letter of Credit the proposed (i) initial Stated Amount, (ii) beneficiary,
and (iii) expiration date. The Borrower shall also execute and deliver
such customary applications and agreements for standby letters of credit, and
other forms as requested from time to time by the Issuing Bank.  Provided the Borrower has given the notice
prescribed by the first sentence of this subsection and delivered such
application and agreements referred to in the preceding  sentence, subject to the
other terms and conditions of this Agreement, including the satisfaction of any
applicable conditions precedent set forth in Article 5.2., the Issuing
Bank shall issue the requested Letter of Credit on the requested date of
issuance for the benefit of the stipulated beneficiary but in no event


 


20

















 


prior
to the date ten (10) Business Days following the date after which the
Issuing Bank has received all of the items required to be delivered to it under
this subsection.  Upon the written
request of the Borrower, the Issuing Bank shall deliver to the Borrower a copy
of (i) any Letter of Credit proposed to be issued hereunder prior to the
issuance thereof and (ii) each issued Letter of Credit within a reasonable
time after the date of issuance thereof. 
To the extent any term of a Letter of Credit Document is inconsistent
with a term of any Loan Document, the term of such Loan Document shall
control.  In connection with any issuance
of a Letter of Credit, the Borrower shall pay the fees payable under the last
sentence of Section 3.5.(b).


 


(d)           Reimbursement Obligations.  Upon receipt by the Issuing Bank from the
beneficiary of a Letter of Credit of any demand for payment under such Letter
of Credit, the Issuing Bank shall promptly notify the Borrower of the amount to
be paid by the Issuing Bank as a result of such demand and the date on which
payment is to be made by the Issuing Bank to such beneficiary in respect of
such demand.  The Borrower hereby
absolutely, unconditionally and irrevocably agrees to pay and reimburse the
Issuing Bank for the amount of each demand for payment under such Letter of
Credit at or prior to the date on which payment is to be made by the Issuing
Bank to the beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind.  Upon
receipt by the Issuing Bank of any payment in respect of any Reimbursement
Obligation, the Issuing Bank shall promptly pay to each Lender that has
acquired a participation therein under the second sentence of the subsection (i) of
this Section such Lender’s Revolving Commitment Percentage of such
payment.


 


(e)           Manner of Reimbursement.  Upon its receipt of a notice referred to in
the immediately preceding subsection (d), the Borrower shall advise the
Administrative Agent and the Issuing Bank whether or not the Borrower intends
to borrow hereunder to finance its obligation to reimburse the Issuing Bank for
the amount of the related demand for payment and, if it does, the Borrower
shall submit a timely request for such borrowing as provided in the applicable
provisions of this Agreement.  If the
Borrower fails to so advise the Administrative Agent and the Issuing Bank, or
if the Borrower fails to reimburse the Issuing Bank for a demand for payment
under a Letter of Credit, the failure of which the Issuing Bank shall promptly
notify the Administrative Agent, then the Administrative Agent shall give each
Lender prompt notice thereof and of the amount of the demand for payment,
specifying such Lender’s Revolving Commitment Percentage of the amount of the
related demand for payment and the provisions of subsection (j) of
this Section shall apply.


 


(f)            Effect of Letters of Credit on
Revolving Commitments.  Upon the
issuance by the Issuing Bank of any Letter of Credit and until such Letter of
Credit shall have expired or been cancelled, the Revolving Commitment of each
Lender shall be deemed to be utilized for all purposes of this Agreement in an
amount equal to the product of (i) such Lender’s Revolving Commitment
Percentage and (ii) the sum of (A) the Stated Amount of such Letter
of Credit plus (B) any related Reimbursement Obligations then outstanding.


 


(g)           Issuing Bank’s Duties Regarding
Letters of Credit; Unconditional Nature of Reimbursement Obligations.  In examining documents presented in
connection with drawings under Letters of Credit and making payments under such
Letters of Credit against such documents, the Issuing Bank shall only be
required to use the same standard of care as it uses in connection with
examining documents presented in connection with drawings under letters of
credit in which it has not sold participations and making payments under such
letters of credit.  The Borrower assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit by,
the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the
foregoing, none of the Issuing Bank, Administrative  Agent or any of the Lenders shall be
responsible for (i) the form, validity, sufficiency, accuracy, genuineness
or legal effects of any document submitted by any party in connection with the
application for and issuance of or any drawing honored under any Letter of
Credit even if such document should in


 


21

















 


fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, facsimile, electronic mail, telecopy or otherwise, whether or
not they be in cipher; (v) errors in interpretation of technical terms; (vi) any
loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit, or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any Letter of Credit, or of
the proceeds of any drawing under any Letter of Credit; or (viii) any consequences
arising from causes beyond the control of the Issuing Bank, Administrative
Agent or the Lenders.  None of the above
shall affect, impair or prevent the vesting of any of the Issuing Bank’s or
Administrative Agent’s rights or powers hereunder.  Any action taken or omitted to be taken by
the Issuing Bank under or in connection with any Letter of Credit, even if
arising from the negligence of the Issuing Bank (provided it is taken or
omitted in the absence of gross negligence or willful misconduct), shall not
create against the Issuing Bank any liability to the Borrower, the
Administrative Agent or any Lender.  In
this connection, the obligation of the Borrower to reimburse the Issuing Bank
for any drawing made under any Letter of Credit shall be absolute,
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement or any other applicable Letter of Credit Document under
all circumstances whatsoever, including without limitation, the following
circumstances: (A) any lack of validity or enforceability of any Letter of
Credit Document or any term or provisions therein; (B) any amendment or
waiver of or any consent to departure from all or any of the Letter of Credit
Documents; (C) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against the Issuing Bank, the
Administrative Agent or any Lender, any beneficiary of a Letter of Credit or
any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or in the Letter of Credit Documents or any unrelated
transaction; (D) any breach of contract or dispute between the Borrower,
the Issuing Bank, the Administrative Agent, any Lender or any other Person; (E) any
demand, statement or any other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein or made in connection therewith being untrue or inaccurate in
any respect whatsoever; (F) any non-application or misapplication by the
beneficiary of a Letter of Credit or of the proceeds of any drawing under such
Letter of Credit; (G) payment by the Issuing Bank under the Letter of
Credit against presentation of a draft or certificate which does not strictly
comply with the terms of the Letter of Credit; and (H) any other act,
omission to act, delay or circumstance whatsoever that might, but for the
provisions of this Section, constitute a legal or equitable defense to or
discharge of the Borrower’s Reimbursement Obligations.


 


(h)           Amendments, Etc.  The issuance by the Issuing Bank of any
amendment, supplement or other modification to any Letter of Credit shall be
subject to the same conditions applicable under this Agreement to the issuance
of new Letters of Credit (including, without limitation, that the request
therefor be made through the Issuing Bank), and no such amendment, supplement
or other modification shall be issued unless either (i) the respective
Letter of Credit affected thereby would have complied with such conditions had
it originally been issued hereunder in such amended, supplemented or modified
form or (ii) the Administrative Agent and Requisite Lenders shall have
consented thereto.  In connection with
any such amendment, supplement or other modification, the Borrower shall pay
the fees, if any, payable under the last sentence of Section 3.5.(b).


 


(i)            Lenders’ Participation in Letters
of Credit.  Immediately upon the
issuance by the Issuing Bank of any Letter of Credit each Lender shall be
deemed to have absolutely, irrevocably and unconditionally purchased and
received from the Issuing Bank, without recourse or warranty, an undivided
interest and participation to the extent of such Lender’s Revolving Commitment
Percentage of the liability of the Issuing Bank with respect to such Letter of
Credit and each Lender thereby shall


 


22

















 


absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Issuing Bank to pay and discharge
when due, such Lender’s Revolving Commitment Percentage of the Issuing Bank’s
liability under such Letter of Credit. 
In addition, upon the making of each payment by a Lender to the
Administrative Agent for the account of the Issuing Bank in respect of any
Letter of Credit pursuant to the immediately following subsection (j),
such Lender shall, automatically and without any further action on the part of
the Issuing Bank, Administrative Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement
Obligation owing to the Issuing Bank by the Borrower in respect of such Letter
of Credit and (ii) a participation in a percentage equal to such Lender’s
Revolving Commitment Percentage in any interest or other amounts payable by the
Borrower in respect of such Reimbursement Obligation (other than the Fees
payable to the Issuing Bank pursuant to Section 3.5.(b)).


 


(j)            Payment Obligation of Lenders.  Each Lender severally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, on demand in
immediately available funds in Dollars the amount of such Lender’s Revolving
Commitment Percentage of each drawing paid by the Issuing Bank under each
Letter of Credit to the extent such amount is not reimbursed by the Borrower
pursuant to the subsection (d) of this Section; provided, however, that in
respect of any drawing under any Letter of Credit, the maximum amount that any
Lender shall be required to fund, whether as a Revolving Loan or as a
participation, shall not exceed such Lender’s Revolving Commitment Percentage
of such drawing.  Each Lender’s
obligation to make such payments to the Administrative Agent under this
subsection, and the Administrative Agent’s right to receive the same for the
account of the Issuing Bank, shall be absolute, irrevocable and unconditional
and shall not be affected in any way by any circumstance whatsoever, including
without limitation, (i) the failure of any other Lender to make its payment
under this subsection, (ii) the financial condition of the Borrower or any
other Loan Party, (iii) the existence of any Default or Event of Default,
including any Event of Default described in Section 10.1.(e) or (f) or
(iv) the termination of the Revolving Commitments.  Each such payment to the Administrative Agent
for the account of the Issuing Bank shall be made without any offset,
abatement, withholding or deduction whatsoever.


 


(k)           Information to Lenders.  Promptly following any change in Letters of Credit
outstanding, the Issuing Bank shall deliver to each Lender and the Borrower a
notice describing the aggregate amount of all Letters of Credit outstanding at
such time.  Upon the request of any
Lender from time to time, the Issuing Bank shall deliver any other information
reasonably requested by such Lender with respect to each Letter of Credit then
outstanding.  Other than as set forth in
this subsection, the Issuing Bank shall have no duty to notify the Lenders
regarding the issuance or other matters regarding Letters of Credit issued
hereunder.  The failure of the Issuing
Bank to perform its requirements under this subsection shall not relieve any
Lender from its obligations under the immediately preceding subsection (j).


 


Section 2.3.  Swingline Loans.


 


(a)           Swingline Loans.  Subject to the terms and conditions hereof,
including without limitation Section 2.14., the Swingline Lender agrees to
make Swingline Loans to the Borrower, during the period from the Effective Date
to but excluding the Swingline Maturity Date, in an aggregate principal amount
at any one time outstanding up to, but not exceeding, $5,000,000, as such amount may be reduced from time to time in
accordance with the terms hereof.  If at
any time the aggregate principal amount of the Swingline Loans outstanding at
such time exceeds the Swingline Commitment in effect at such time, the Borrower
shall immediately pay the Administrative Agent for the account of the Swingline
Lender the amount of such excess. 
Subject to the terms and conditions of this Agreement, the Borrower may
borrow, repay and reborrow Swingline Loans hereunder


 


23

















 


(b)           Procedure for Borrowing Swingline
Loans.  The Borrower shall give the
Administrative Agent and the Swingline Lender notice pursuant to a Notice of
Swingline Borrowing or telephonic notice of each borrowing of a Swingline
Loan.  Each Notice of Swingline Borrowing
shall be delivered to the Swingline Lender no later than noon Pacific time on
the proposed date of such borrowing.  Any
telephonic notice shall include all information to be specified in a written
Notice of Swingline Borrowing and shall be promptly confirmed in writing by the
Borrower pursuant to a Notice of Swingline Borrowing sent to the Swingline Lender
by telecopy on the same day of the giving of such telephonic notice.  Not later than 2:00 p.m. Pacific time on
the date of the requested Swingline Loan and subject to satisfaction of the
applicable conditions set forth in Article 5.2. for such borrowing, the
Swingline Lender will make the proceeds of such Swingline Loan available to the
Borrower in Dollars, in immediately available funds, at the account specified
by the Borrower in the Notice of Swingline Borrowing.


 


(c)           Interest.  Swingline Loans shall bear interest at a per
annum rate equal to the Base Rate as in effect from time to time plus the
Applicable Margin or at such other rate or rates as the Borrower and the
Swingline Lender may agree from time to time in writing.  All accrued and unpaid interest on Swingline
Loans shall be payable on the dates and in the manner provided in Section 2.4.
with respect to interest on Base Rate Loans (except as the Swingline Lender and
the Borrower may otherwise agree in writing in connection with any particular Swingline
Loan).


 


(d)           Swingline Loan Amounts, Etc.  Each Swingline Loan shall be in the minimum
amount of $200,000 and integral multiples of $100,000 in excess thereof, or
such other minimum amounts agreed to by the Swingline Lender and the Borrower.  Any voluntary prepayment of a Swingline Loan
must be in integral multiples of $100,000 or the aggregate principal amount of
all outstanding Swingline Loans (or such other minimum amounts upon which the
Swingline Lender and the Borrower may agree) and in connection with any such
prepayment, the Borrower must give the Swingline Lender prior written notice
thereof no later than noon Pacific time on the day prior to the date of such
prepayment.  The Swingline Loans shall,
in addition to this Agreement, be evidenced by the Swingline Note.


 


(e)           Repayment and Participations of
Swingline Loans.  The Borrower agrees
to repay each Swingline Loan within three (3) Business Days of demand
therefor by the Swingline Lender and, in any event, within five (5) Business Days after the
date such Swingline Loan was made; provided, that the proceeds of a Swingline
Loan may not be used to pay a Swingline Loan. 
Notwithstanding the foregoing, the Borrower shall repay the entire
outstanding principal amount of, and all accrued but unpaid interest on, the
Swingline Loans on the Swingline Maturity Date (or such earlier date as the
Swingline Lender and the Borrower may agree in writing).  In lieu of demanding repayment of any
outstanding Swingline Loan from the Borrower, the Swingline Lender may, on
behalf of the Borrower (which hereby irrevocably directs the Swingline Lender
to act on its behalf), request a borrowing of Base Rate Loans from the Lenders
in an amount equal to the principal balance of such Swingline Loan.  The amount limitations contained in the
second sentence of Section 2.1.(a) shall not apply to any borrowing
of Base Rate Loans made pursuant to this subsection.  The Swingline Lender shall give notice to the
Administrative Agent of any such borrowing of Base Rate Loans not later than
noon Pacific time at least one (1) Business Day prior to the proposed date
of such borrowing.  Not later than noon
Pacific time on the proposed date of such borrowing, each Lender will make
available to the Administrative Agent at the Principal Office for the account
of the Swingline Lender, in immediately available funds, the proceeds of the
Base Rate Loan to be made by such Lender. 
The Administrative Agent shall pay the proceeds of such Base Rate Loans
to the Swingline Lender, which shall apply such proceeds to repay such
Swingline Loan.  If the Lenders are
prohibited from making Loans required to be made under this subsection for any
reason whatsoever, including without limitation, the occurrence of any of the
Defaults or Events of Default described in Sections 10.1.(e) or (f)),
each Lender shall purchase from the Swingline Lender, without recourse or
warranty, an undivided interest and participation to the extent of such Lender’s
Revolving Commitment Percentage of such Swingline Loan, by directly purchasing
a participation in such Swingline Loan in such


 


24

















 


amount
and paying the proceeds thereof to the Administrative Agent for the account of
the Swingline Lender in Dollars and in immediately available funds.  A Lender’s obligation to purchase such a
participation in a Swingline Loan shall be absolute and unconditional and shall
not be affected by any circumstance whatsoever, including without limitation, (i) any
claim of setoff, counterclaim, recoupment, defense or other right which such
Lender or any other Person may have or claim against the Administrative Agent,
the Swingline Lender or any other Person whatsoever, (ii) the occurrence
or continuation of a Default or Event of Default (including without limitation,
any of the Defaults or Events of Default described in Sections 10.1. (e) or
(f), or the termination of any Lender’s Revolving Commitment, (iii) the
existence (or alleged existence) of an event or condition which has had or
could have a Material Adverse Effect, (iv) any breach of any Loan Document
by the Administrative Agent, any Lender, the Borrower or any other Loan Party,
or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.  If
such amount is not in fact made available to the Swingline Lender by any
Lender, the Swingline Lender shall be entitled to recover such amount on demand
from such Lender, together with accrued interest thereon for each day from the
date of demand thereof, at the Federal Funds Rate.  If such Lender does not pay such amount
forthwith upon the Swingline Lender’s demand therefor, and until such time as
such Lender makes the required payment, the Swingline Lender shall be deemed to
continue to have outstanding Swingline Loans in the amount of such unpaid
participation obligation for all purposes of the Loan Documents (other than
those provisions requiring the other Lenders to purchase a participation
therein).  Further, such Lender shall be
deemed to have assigned any and all payments made of principal and interest on
its Loans, and any other amounts due it hereunder, to the Swingline Lender to
fund Swingline Loans in the amount of the participation in Swingline Loans that
such Lender failed to purchase pursuant to this Section until such amount
has been purchased (as a result of such assignment or otherwise).


 


Section 2.4.  Rates and Payment of Interest on Loans.


 


(a)           Rates.  The Borrower promises to pay to the
Administrative Agent for the account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender for the period from and
including the date of the making of such Loan to but excluding the date such
Loan shall be paid in full, at the following per annum rates:


 


(i)            during such periods
as such Loan is a Base Rate Loan, at the Base Rate (as in effect from time to
time), plus the Applicable Margin;


 


(ii)           during such periods
as such Loan is a LIBOR Loan, at LIBOR for such Loan for the Interest Period
therefor, plus the Applicable Margin.


 


Notwithstanding
the foregoing, (x) from and after November 13, 2009, in no event
shall the per annum rate of interest described in the immediately preceding
clauses (i) and (ii) be less than five and one —half percent (5.50%)
and (y) while an Event of Default exists, the Borrower shall pay to the
Administrative Agent for the account of each Lender and the Issuing Bank, as
the case may be, interest at the Post-Default Rate on the outstanding principal
amount of any Loan made by such Lender, on all Reimbursement Obligations and on
any other amount payable by the Borrower hereunder or under the Notes held by
such Lender to or for the account of such Lender (including without limitation,
accrued but unpaid interest to the extent permitted under Applicable Law).


 


(b)           Payment of Interest. All
accrued and unpaid interest on the outstanding principal amount of each Loan
shall be payable (i) monthly in arrears on the first day of each month,
commencing with the first full calendar month occurring after the Effective
Date and (ii) on any date on which the principal balance of such Loan is
due and payable in full (whether at maturity, due to acceleration or
otherwise).


 


25

















 


Interest
payable at the Post-Default Rate shall be payable from time to time on
demand.  All determinations by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding on the Lenders and the Borrower for all purposes, absent manifest error.


 


Section 2.5.  Number of Interest Periods.


 


There
may be no more than ten (10) different Interest Periods for LIBOR Loans
outstanding at the same time.


 


Section 2.6.  Repayment of Loans.


 


The
Borrower shall repay the entire outstanding principal amount of, and all
accrued but unpaid interest on, the Loans on the Maturity Date.


 


Section 2.7.  Prepayments.


 


(a)           Optional.  Subject to Section 4.4., the Borrower
may prepay any Loan at any time without premium or penalty.  The Borrower shall give the Administrative
Agent at least three (3) Business Days prior written notice of the
prepayment of any Loan.  Each voluntary
prepayment of Loans shall be in an aggregate minimum amount of $200,000 and
integral multiples of $100,000 in excess thereof.


 


(b)           Mandatory. 
If at any time the aggregate principal amount of all outstanding
Revolving Loans and Swingline Loans, together with the aggregate amount of all
Letter of Credit Liabilities and the Interest Holdback, exceeds the aggregate
amount of the Revolving Commitments, the Borrower shall immediately upon demand
pay to the Administrative Agent for the account of the Lenders then holding
Revolving Commitments (or if the Revolving Commitments have been terminated,
then holding outstanding Revolving Loans, Swingline Loans and/or Letter of
Credit Liabilities), the amount of such excess. All payments under this
subsection (b) shall be applied in accordance with the last sentence of Section 3.2.


 


Section 2.8.  Late Charges.


 


If
any payment required under this Agreement is not paid within ten (10) days
after it becomes due and payable, the Borrower shall pay a late charge for late
payment to compensate the Lenders 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 pursuant to Section 10.2., 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 the Lenders’ right to accelerate payment of any of the Obligations as
permitted under the terms of this Agreement.


 


Section 2.9.  Continuation.


 


So
long as no Default or Event of Default exists, the Borrower may on any Business
Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any
portion thereof as a LIBOR Loan by selecting a new Interest Period for such LIBOR
Loan.  Each Continuation of a LIBOR Loan
shall be in an aggregate minimum amount of $200,000 and integral multiples of
$100,000 in excess of that amount, and each new Interest Period selected under
this Section shall commence on the last day of the immediately preceding
Interest Period.  Each selection of a new
Interest Period shall be made by the


 


26

















 


Borrower
giving to the Administrative Agent a Notice of Continuation not later than 9:00 a.m.
Pacific time on the third Business Day prior to the date of any such
Continuation.  Such notice by the
Borrower of a Continuation shall be by telecopy, electronic mail or other
similar form of communication in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR
Loan and portion thereof subject to such Continuation and (c) the duration
of the selected Interest Period, all of which shall be specified in such manner
as is necessary to comply with all limitations on Loans outstanding
hereunder.  Each Notice of Continuation
shall be irrevocable by and binding on the Borrower once given.  Promptly after receipt of a Notice of
Continuation, the Administrative Agent shall notify each Lender of the proposed
Continuation.  If the Borrower shall fail
to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, such Loan will automatically, on the last day of
the current Interest Period therefor, continue as a LIBOR Loan with an Interest
Period of one month.


 


Section 2.10.  Conversion.


 


So
long as no Default or Event of Default exists, the Borrower may on any Business
Day, upon the Borrower’s giving of a Notice of Conversion to the Administrative
Agent by telecopy, electronic mail or other similar form of communication,
Convert all or a portion of a Loan of one Type into a Loan of another
Type.  Each Conversion of Base Rate Loans
into LIBOR Loans shall be in an aggregate minimum amount of $200,000 and
integral multiples of $100,000 in excess of that amount, and upon Conversion of
a Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued interest to
the date of Conversion on the principal amount so Converted in accordance with Section 2.4.  Any Conversion of a LIBOR Loan into a Base
Rate Loan shall be made on, and only on, the last day of an Interest Period for
such LIBOR Loan.  Each such Notice of
Conversion shall be given not later than 9:00 a.m. one (1) Business
Day prior to the date of any proposed Conversion into Base Rate Loans and three
(3) Business Days prior to the date of any proposed Conversion into LIBOR
Loans.  Promptly after receipt of a
Notice of Conversion, the Administrative Agent shall notify each Lender of the
proposed Conversion.  Subject to the
restrictions specified above, each Notice of Conversion shall be by telecopy,
electronic mail or other similar form of communication in the form of a Notice
of Conversion specifying (a) the requested date of such Conversion, (b) the
Type of Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Loan such Loan is to be Converted into and (e) if
such Conversion is into a LIBOR Loan,  the requested duration of the Interest Period
of such Loan.  Each Notice of Conversion
shall be irrevocable by and binding on the Borrower once given.


 


Section 2.11.  Notes.


 


(a)           Notes.  The Revolving Loans made by each Lender
shall, in addition to this Agreement, also be evidenced by a Revolving Note,
payable to the order of such Lender in a principal amount equal to the amount
of its Revolving Commitment as originally in effect and otherwise duly
completed.  The Swingline Loans made by
the Swingline Lender to the Borrower shall, in addition to this Agreement, also
be evidenced by a Swingline Note payable to the order of the Swingline Lender.


 


(b)           Lost, Stolen, Destroyed or
Mutilated Notes.  Upon receipt by the
Borrower of (i) written notice from a Lender that a Note of such Lender
has been lost, stolen, destroyed or mutilated, and (ii)(A) in the case of
loss, theft or destruction, an unsecured agreement of indemnity from such
Lender in form reasonably satisfactory to the Borrower, or (B) in the case
of mutilation, upon surrender and cancellation of such Note, the Borrower shall
at its own expense execute and deliver to such Lender a new Note dated the date
of such lost, stolen, destroyed or mutilated Note.


 


27
















 


Section 2.12.  Voluntary Reductions of the Revolving
Commitment.


 


The
Borrower may terminate or reduce the amount of the Revolving Commitments (for
which purpose use of the Revolving Commitments shall be deemed to include the
aggregate principal amount of all outstanding Swingline Loans) at any time and
from time to time without penalty or premium upon not less than five (5) Business
Days prior notice to the Administrative Agent of each such termination or
reduction, which notice shall specify the effective date thereof and the amount
of any such reduction (which in the case of any partial reduction of the
Revolving Commitments shall not be less than $5,000,000 and integral multiples
of $1,000,000 in excess of that amount in the aggregate) and shall be irrevocable
once given and effective only upon receipt by the Administrative Agent (“Commitment
Reduction Notice”); provided, however, the Borrower may not reduce the
aggregate amount of the Revolving Commitments below $5,000,000  unless the Borrower is terminating the
Revolving Commitments in full.  Promptly
after receipt of a Commitment Reduction Notice the Administrative Agent shall
notify each Lender of the proposed termination or Revolving Commitment
reduction.  The Revolving Commitments,
once reduced pursuant to this Section, may not be increased.  The Borrower shall pay all interest and fees,
on the Loans accrued to the date of such reduction or termination of the
Revolving Commitments to the Administrative Agent for the account of the
Lenders, including but not limited to any applicable compensation due to each
Lender in accordance with Section 4.4. of this Agreement.


 


Section 2.13.  Expiration or Maturity Date of Letters of
Credit Past Maturity Date.


 


If
on the date the Revolving Commitments are terminated (whether voluntarily, by
reason of the occurrence of an Event of Default or otherwise), there are any
Letters of Credit outstanding hereunder, the Borrower shall, on such date, pay
to the Administrative Agent, for its benefit and the benefit of the Lenders and
the Issuing Bank, an amount of money equal to the Stated Amount of such Letter(s) of
Credit for deposit into the Letter of Credit Collateral Account.  If a drawing pursuant to any such Letter of
Credit occurs on or prior to the expiration date of such Letter of Credit, the
Borrower authorizes the Administrative Agent to use the monies deposited in the
Letter of Credit Collateral Account to reimburse the Issuing Bank for the
payment made by the Issuing Bank to the beneficiary with respect to such drawing
or the payee with respect to such presentment. 
If no drawing occurs on or prior to the expiration date of such Letter
of Credit, the Administrative Agent shall pay to the Borrower (or to whomever
else may be legally entitled thereto) the monies deposited in the Letter of
Credit Collateral Account with respect to such outstanding Letter of Credit on
or before the date thirty (30) days after the expiration date of such
Letter of Credit.


 


Section 2.14.  Amount Limitations.


 


Notwithstanding
any other term of this Agreement or any other Loan Document, (a) no Lender
shall make any Loan, and the Issuing Bank shall not issue any Letter of Credit,
if immediately after the making of such Loan or issuance of such Letter of
Credit the aggregate principal amount of all outstanding Loans, together with
the aggregate amount of all Letter of Credit Liabilities and the Interest
Holdback, would exceed the aggregate amount of all Revolving Loan Commitments
at such time.


 


Section 2.15.  Funds Transfer Disbursements.


 


(a)           Generally.  The Borrower hereby authorizes the
Administrative Agent to disburse the proceeds of any Loan made by the Lenders
or any of their Affiliates pursuant to the Loan Documents as requested by an
authorized representative of the Borrower to any of the accounts designated in
the Transfer Authorizer Designation Form. 
The Borrower agrees to be bound by any transfer request: (i) authorized
or transmitted by the Borrower; or, (ii) made in the Borrower’s name and
accepted by the


 


28

















 


Administrative Agent in good faith and in compliance with
these transfer instructions, even if not properly authorized by the
Borrower.  The Borrower further agrees
and acknowledges that the Administrative Agent may rely solely on any bank
routing number or identifying bank account number or name provided by the
Borrower to effect a wire of funds transfer even if the information provided by
the Borrower identifies a different bank or account holder than named by the
Borrower.  The Administrative Agent is
not obligated or required in any way to take any actions to detect errors in
information provided by the Borrower.  If
the Administrative Agent takes any actions in an attempt to detect errors in
the transmission or content of transfer or requests or takes any actions in an
attempt to detect unauthorized funds transfer requests, the Borrower agrees
that no matter how many times the Administrative Agent takes these actions the
Administrative Agent will not in any situation be liable for failing to take or
correctly perform these actions in the future and such actions shall not become
any part of the transfer disbursement procedures authorized under this
provision, the Loan Documents, or any agreement between the Administrative Agent
and the Borrower.  The Borrower agrees to
notify the Administrative Agent of any errors in the transfer of any funds or
of any unauthorized or improperly authorized transfer requests within fourteen
(14) days after the Administrative Agent’s confirmation to the Borrower of such
transfer.


 


(b)           Funds
Transfer.  The Administrative Agent
will, in its sole discretion, determine the funds transfer system and the means
by which each transfer will be made.  The
Administrative Agent may delay or refuse to accept a funds transfer request if
the transfer would: (i) violate the terms of this authorization (ii) require
use of a bank unacceptable to the Administrative Agent or any Lender or
prohibited by any Governmental Authority; (iii) cause the Administrative
Agent or any Lender to violate any Federal Reserve or other regulatory risk
control program or guideline, or (iv) otherwise cause the Administrative
Agent or any Lender to violate any Applicable Law or regulation.


 


(c)           Limitation of Liability.  Neither the Administrative Agent, the Issuing
Bank nor any Lender shall be liable to the Borrower or any other parties for (i) errors,
acts or failures to act of others, including other entities, banks,
communications carriers or clearinghouses, through which the Borrower’s transfers
may be made or information received or transmitted, and no such entity shall be
deemed an agent of the Administrative Agent, the Issuing Bank or any Lender, (ii) any
loss, liability or delay caused by fires, earthquakes, wars, civil
disturbances, power surges or failures, acts of government, labor disputes,
failures in communications networks, legal constraints or other events beyond
Administrative Agent’s, Issuing Bank’s or any Lender’s control, or (iii) any
special, consequential, indirect or punitive damages, whether or not (x) any
claim for these damages is based on tort or contract or (y) the
Administrative Agent, the Issuing Bank, any Lender or the Borrower knew or
should have known the likelihood of these damages in any situation.  Neither the Administrative Agent, the Issuing
Bank nor any Lender makes any representations or warranties other than those
expressly made in this Agreement.


 


Section 2.16.  Amended and Restated
Obligations.


 


As of the
Effective Date, all “Advances” outstanding under and as defined in the Existing
Credit Agreement shall be deemed to be Revolving Loans under this Agreement and
all other “Obligations” outstanding under the Existing Credit Agreement (and as
the term “Obligations” is defined in the Existing Credit Agreement) shall
automatically be deemed to be Obligations outstanding hereunder.  To the extent that changes in the Commitments
among the Lenders requires a reallocation of outstanding Revolving Loans, the
Lenders agree that, on the Effective Date, Revolving Loans shall be purchased
and sold, as all though assignments were made in accordance with Paragraph 12.6
without regard to minimum amounts, fees payable upon assignment or execution of
an Assignment and Assumption.  As of the
Effective Date, the Existing Letters of Credit shall be deemed “Letters of
Credit” for all purposes of this Agreement and the other Loan Documents.  Effective upon the Effective Date, the
Issuing Bank shall be deemed, without further action by any party hereto, to
have unconditionally and


 


29

















 


irrevocably sold to each
Lender, and each Lender shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably purchased from the Issuing
Bank, a participation in such Letter of Credit in proportion to its Pro Rata
Share, as if such Letter of Credit were issued hereunder on the Effective
Date.   All issuance fees paid to the “Lenders”
under (and as defined in) the Existing Credit Agreement with respect to the
Existing Letters of Credit shall be prorated as of the Effective Date and the
Lenders hereunder allocated their respective Pro Rata Shares thereof by those
of the Lenders which were “Lenders” under the Existing Credit Agreement.


 


ARTICLE
III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS


 


Section 3.1.  Payments.


 


(a)           Payments by Borrower.  Except to the extent otherwise provided
herein, all payments of principal, interest, Fees and other amounts to be made
by the Borrower under this Agreement, the Notes or any other Loan Document
shall be made in Dollars, in immediately available funds, without setoff,
deduction or counterclaim, to the Administrative Agent at the Principal Office,
not later than noon Pacific time on the date on which such payment shall become
due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day).  Subject to Section 10.5., the Borrower
shall, at the time of making each payment under this Agreement or any other
Loan Document, specify to the Administrative Agent the amounts payable by the
Borrower hereunder to which such payment is to be applied.  Each payment received by the Administrative
Agent for the account of a Lender under this Agreement or any Note shall be
paid to such Lender by wire transfer of immediately available funds in
accordance with the wiring instructions provided by such Lender to the
Administrative Agent from time to time, for the account of such Lender at the
applicable Lending Office of such Lender. 
Each payment received by the Administrative Agent for the account of the
Issuing Bank under this Agreement shall be paid to the Issuing Bank by wire
transfer of immediately available funds in accordance with the wiring
instructions provided by the Issuing Bank to the Administrative Agent from time
to time, for the account of the Issuing Bank. 
In the event the Administrative Agent fails to pay such amounts to such
Lender or the Issuing Bank, as the case may be, within one (1) Business
Day of receipt of such amounts, the Administrative Agent shall pay interest on
such amount at a rate per annum equal to the Federal Funds Rate from time to
time in effect.  If the due date of any
payment under this Agreement or any other Loan Document would otherwise fall on
a day which is not a Business Day such date shall be extended to the next
succeeding Business Day and interest shall continue to accrue at the rate, if
any, applicable to such payment for the period of such extension.


 


(b)           Presumptions Regarding Payments by
Borrower.  Unless the Administrative
Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders
or the Issuing Bank hereunder that the Borrower will  not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may (but shall not be obligated to), in reliance upon
such assumption, distribute to the Lenders or the Issuing Bank, as the case may
be, the amount due.  In such event, if
the Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent on demand that amount so distributed to such Lender or the
Issuing Bank, with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


Section 3.2.  Pro Rata Treatment.


 


Except to the extent otherwise provided herein:  (a) each borrowing from Lenders under Section 2.1.(a),
2.2.(e) and 2.3.(e) shall be made from the Lenders, each payment of
the fees under


 


30

















 


Sections 3.5.(a) and
the first sentence of 3.5.(b) shall be made for the account of the
Lenders, and each termination or reduction of the amount of the Revolving
Commitments under Section 2.12. shall be applied to the respective
Revolving Commitments of the Lenders, pro rata according to the amounts of
their respective Revolving Commitments; (b) each payment or prepayment of
principal of Revolving Loans by the Borrower shall be made for the account of
the Lenders pro rata in accordance with the respective unpaid principal amounts
of the Revolving Loans held by them, provided that if immediately prior to
giving effect to any such payment in respect of any Revolving Loans the
outstanding principal amount of the Revolving Loans shall not be held by the
Lenders pro rata in accordance with their respective Revolving Commitments in
effect at the time such Loans were made, then such payment shall be applied to
the Revolving Loans in such manner as shall result, as nearly as is
practicable, in the outstanding principal amount of the Revolving Loans being
held by the Lenders pro rata in accordance with their respective Revolving
Commitments; (c) each payment of interest on Revolving Loans by the
Borrower shall be made for the account 
of the Lenders pro rata in accordance with the amounts of interest on
such Revolving Loans then due and payable to the respective Lenders; (d) the
Conversion and Continuation of Loans of a particular Type (other than
Conversions provided for by Section 4.1.) shall be made pro rata among the
Lenders according to the amounts of their respective Loans and the then current
Interest Period for each Lender’s portion of each Loan of such Type shall be
coterminous; (e)  the Lenders’ participation in, and payment
obligations in respect of, Swingline Loans under Section 2.3., shall be in
accordance with their respective Revolving Commitment Percentage; and (f) the
Lenders’ participation in, and payment obligations in respect of, Letters of
Credit under Section 2.2., shall be in accordance with their respective
Revolving Commitment Percentage.  All
payments of principal, interest, fees and other amounts in respect of the
Swingline Loans shall be for the account of the Swingline Lender only (except
to the extent any Lender shall have acquired a participating interest in any
such Swingline Loan pursuant to Section 2.3.(e), in which case such
payments shall be pro rata in accordance with such participating
interests).  Any payment or prepayment of
principal or interest made (i) during the existence of a Default or Event
of Default or (ii) pursuant to Section 2.7.(b) or Section 7.16,
shall be made for the account of the Swingline Lender and the Lenders holding
Revolving Commitments (or, if the Revolving Commitments have been terminated,
holding Revolving Loans and Letter of Credit Liabilities) in accordance with
the order set forth in Section 10.5.


 


Section 3.3.  Sharing of Payments, Etc.


 


If
a Lender shall obtain payment of any principal of, or interest on, any Loan
under this Agreement or shall obtain payment on any other Obligation owing by
the Borrower or any other Loan Party through the exercise of any right of
set-off, banker’s lien, counterclaim or similar right or otherwise or through
voluntary prepayments directly to a Lender or other payments made by the
Borrower or any other Loan Party to a Lender (other than any payment in respect
of Specified Derivatives Obligations) 
not in accordance with the terms of 
this Agreement and such payment should be distributed to the Lenders in
accordance with Section 3.2. or Section 10.5., such Lender shall
promptly purchase from such other Lenders participations in (or, if and to the
extent specified by such Lender, direct interests in) the Loans made by the
other Lenders or other Obligations owed to such other Lenders in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all the Lenders shall share the benefit of such payment (net of any
reasonable expenses which may actually be incurred by such Lender in obtaining
or preserving such benefit) in accordance with the requirements of Section 3.2.
or Section 10.5., as applicable.  To
such end, all the Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. 
The Borrower agrees that any Lender so purchasing a participation (or
direct interest) in the Loans or other Obligations owed to such other Lenders
may exercise all rights of set-off, banker’s lien, counterclaim or similar
rights with the respect to such participation as fully as if such Lender were a
direct holder of Loans in the amount of such participation.  Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender to
exercise and retain the benefits of exercising, any such right with respect to
any other indebtedness or obligation of the Borrower.


 


31

















 


Section 3.4.  Several Obligations.


 


No
Lender shall be responsible for the failure of any other Lender to make a Loan
or to perform any other obligation to be made or performed by such other Lender
hereunder, and the failure of any Lender to make a Loan or to perform any other
obligation to be made or performed by it hereunder shall not relieve the
obligation of any other Lender to make any Loan or to perform any other
obligation to be made or performed by such other Lender.


 


Section 3.5.  Fees.


 


(a)           Closing Fee.  On the Effective Date, the Borrower agrees to
pay to the Administrative Agent and each Lender all loan fees as have been
agreed to in writing by the Borrower and the Administrative Agent.


 


(b)           Letter of Credit Fees.  The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, as a condition to the
issuance of each Letter of Credit, a letter of credit fee equal to three
percent (3.00%) per annum times the Stated Amount of such Letter of Credit for
the period from and including the date of issuance of such Letter of Credit to
and including the stated termination date such Letter of Credit (with such
letter of credit fee to be also paid in advance prior to the extension or
renewal (whether by automatic renewal or otherwise) of such Letter of Credit
for the additional term of such Letter of Credit);  provided, however, in no event
shall the aggregate amount of such fee in respect  of any Letter of Credit be less than
$1,000.  In addition to such fees, the
Borrower shall pay to the Issuing Bank solely for its own account, as a
condition to the issuance of each Letter of Credit, a fronting fee in respect
of each Letter of Credit at the rate equal to one-eighth of one percent
(0.125%) per annum on the daily average Stated Amount of such Letter of
Credit.  The fees provided for in the
immediately preceding three sentences shall be nonrefundable and payable in
advance.  The Borrower shall pay directly
to the Issuing Bank from time to time on demand all commissions, charges, costs
and expenses in the amounts customarily charged by the Issuing Bank from time
to time in like circumstances with respect to the issuance of each Letter of
Credit, drawings, amendments and other transactions relating thereto including,
without limitation, a documentation fee of $500.


 


(c)           Administrative and Other Fees.  The Borrower agrees to pay the administrative
and other fees of the Administrative Agent as provided in the Fee Letter and as
may be otherwise agreed to in writing from time to time.


 


Section 3.6.  Computations.


 


Unless
otherwise expressly set forth herein, any accrued interest on any Loan, any
Fees or other Obligations due hereunder shall be computed on the basis of a
year of 360 days and the actual number of days elapsed.


 


Section 3.7.  Usury.


 


In
no event shall the amount of interest due or payable on the Loans or other
Obligations exceed the maximum rate of interest allowed by Applicable Law and,
if any such payment is paid by the Borrower or any other Loan Party or received
by any Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the respective Lender in writing
that the Borrower elects to have such excess sum returned to it forthwith.  It is the express intent of the parties
hereto that


 


32

















 


the
Borrower not pay and the Lenders not receive, directly or indirectly, in any
manner whatsoever, interest in excess of that which may be lawfully paid by the
Borrower under Applicable Law.  The
parties hereto hereby agree and stipulate that the only charge imposed upon the
Borrower for the use of money in connection with this Agreement is and shall be
the interest specifically described in Section 2.4.(a)(i) and (ii) and,
with respect to Swingline Loans, in Section 2.3.(c).  Notwithstanding the foregoing, the parties
hereto further agree and stipulate that all agency fees, syndication fees,
facility fees, letter of credit fees, underwriting fees, default charges, late
charges, funding or “breakage” charges, increased cost charges, attorneys’ fees
and reimbursement for costs and expenses paid by the Administrative Agent or
any Lender to third parties or for damages incurred by the Administrative Agent
or any Lender, are charges made to compensate the Administrative Agent or any
such Lender for underwriting or administrative services and costs or losses
performed or incurred, and to be performed or incurred, by the Administrative
Agent and the Lenders in connection with this Agreement and shall under no
circumstances be deemed to be charges for the use of money.  All charges other than charges for the use of
money shall be fully earned and nonrefundable when due.


 


Section 3.8.  Statements of Account.


 


The
Administrative Agent will account to the Borrower monthly with a statement of
Loans, accrued interest and Fees, charges and payments made pursuant to this
Agreement and the other Loan Documents, and such account rendered by the
Administrative Agent shall be deemed conclusive upon the Borrower absent
manifest error.  The failure of the
Administrative Agent to deliver such a statement of accounts shall not relieve
or discharge the Borrower from any of its obligations hereunder.


 


Section 3.9.  Defaulting Lenders.


 


(a)           Generally.  If for any reason any Lender (a “Defaulting
Lender”) shall fail or refuse to perform any of its obligations under this
Agreement or any other Loan Document to which it is a party within the time
period specified for performance of such obligation or, if no time period is
specified, if such failure or refusal continues for a period of two  (2) Business Days after notice from the Administrative
Agent, then, in addition to the rights and remedies that may be available to
the Administrative Agent, the Issuing Bank, or the Borrower under this
Agreement or Applicable Law, such Defaulting Lender’s right to participate in
the administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent to or
to direct any action or inaction of the Administrative Agent or to be taken
into account in the calculation of Requisite Lenders, shall be suspended during
the pendency of such failure or refusal. 
If for any reason a Lender fails to make timely payment to the
Administrative Agent of any amount required to be paid to the Administrative
Agent hereunder (without giving effect to any notice or cure periods), in
addition to other rights and remedies which the Administrative Agent, the
Issuing Bank or the Borrower may have under the immediately preceding
provisions or otherwise, the Administrative Agent shall be entitled (i) to
collect interest from such Defaulting Lender on such delinquent payment for the
period from the date on which the payment was due until the date on which the
payment is made at the Federal Funds Rate, (ii) to withhold or setoff and
to apply in satisfaction of the defaulted payment and any related interest, any
amounts otherwise payable to such Defaulting Lender under this Agreement or any
other Loan Document and (iii) to bring an action or suit against such
Defaulting Lender in a court of competent jurisdiction to recover the defaulted
amount and any related interest.  Any
amounts received by the Administrative Agent in respect of a Defaulting Lender’s
Loans shall not be paid to such Defaulting Lender and shall be held uninvested
by the Administrative Agent and either applied against the purchase price of
such Loans under the following subsection (b) or paid to such Defaulting
Lender upon the Defaulting Lender’s curing of its default.


 


33

















 


(b)           Purchase
or Cancellation of Defaulting Lender’s Revolving Commitment.  Any Lender who is not a Defaulting Lender shall
have the right, but not the obligation, in its sole discretion, to acquire by
assignment all of a Defaulting Lender’s Commitments.  Any Lender desiring to exercise such right
shall give written notice thereof to the Administrative Agent and the Borrower
no sooner than two (2) Business Days and not later than five (5) Business
Days after such Defaulting Lender became a Defaulting Lender.  If more than one Lender exercises such right,
each such Lender shall have the right to acquire an amount of such Defaulting
Lender’s Commitments in proportion to the Commitments of the other Lenders
exercising such right.  If after such
fifth Business Day, the Lenders have not elected to acquire all of the
Commitments of such Defaulting Lender, then the Borrower may, by giving written
notice thereof to the Administrative Agent, such Defaulting Lender and the
other Lenders, either (i) demand that such Defaulting Lender assign its
Commitments to an Eligible Assignee subject to and in accordance with the
provisions of Section 12.6.(c) for the purchase price provided for
below or  (ii) terminate
the Commitments of such Defaulting Lender, whereupon such Defaulting Lender
shall no longer be a party hereto or have any right or obligation whatsoever to
initiate any such replacement or to assist in finding an Eligible
Assignee.  Upon any such assignment, the
Defaulting Lender’s interest in the Loans and its rights hereunder (but not its
liability in respect thereof or under the Loan Documents to the extent the same
relate to the period prior to the effective date of the purchase) shall
terminate on the date of purchase, and the Defaulting Lender shall promptly
execute all documents reasonably requested to surrender and transfer such
interest to the purchaser or assignee thereof, including an appropriate
Assignment and Assumption Agreement and, notwithstanding Section 12.6.(c),
shall pay to the Administrative Agent an assignment fee in the amount of
$10,000.  The purchase price for the
Commitments of a Defaulting Lender shall be equal to the amount of the
principal balance of the Loans outstanding and owed by the Borrower to the
Defaulting Lender.  Prior to payment of
such purchase price to a Defaulting Lender, the Administrative Agent shall
apply against such purchase price any amounts retained by the Administrative
Agent pursuant to the last sentence of the immediately preceding subsection
(a).  The Defaulting Lender shall be
entitled to receive any amount owned to it by the Borrower under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by the Administrative Agent from or
on behalf of the Borrower.  There shall
be no recourse against any Lender or the Administrative Agent for the payment
of such sums except to the extent of the receipt of payments from any other
party or in respect of the Loans.


 


Section 3.10.  Taxes; Foreign Lenders.


 


(a)           Taxes Generally. 
All payments by the Borrower of principal of, and interest on, the Loans
and all other Obligations shall be made free and clear of and without deduction
for any present or future excise, stamp or other taxes, fees, duties, levies,
imposts, charges, deductions, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding (i) franchise
taxes, (ii) any taxes (other than withholding taxes) that would not be
imposed but for a connection between the Administrative Agent, the Issuing Bank
or a Lender and the jurisdiction imposing such taxes (other than a connection
arising solely by virtue of the activities of the Administrative Agent, the
Issuing Bank or such Lender pursuant to or in respect of this Agreement or any
other Loan Document), (iii)  any taxes imposed on or measured by the
Issuing Bank’s or any Lender’s assets, net income, receipts or branch profits
and (iv) any taxes arising after the Agreement Date solely as a result of
or attributable to a Lender changing its designated Lending Office after the
date such Lender becomes a party hereto (such non-excluded items being
collectively called “Taxes”).  If any
withholding or deduction from any payment to be made by the Borrower hereunder
is required in respect of any Taxes pursuant to any Applicable Law, then the
Borrower will:


 


(i)            pay directly to the
relevant Governmental Authority the full amount required to be so withheld or
deducted;


 


34

















 


(ii)           promptly forward to
the Administrative Agent an official receipt or other documentation
satisfactory to the Administrative Agent evidencing such payment to such
Governmental Authority; and


 


(iii)          pay to the
Administrative Agent for its account or the account of the applicable Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as is
necessary to ensure that the net amount actually received by the Administrative
Agent, the Issuing Bank or such Lender will equal the full amount that the
Administrative Agent, the Issuing Bank or such Lender would have received had
no such withholding or deduction been required.


 


(b)           Tax Indemnification.  If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the
Administrative Agent, for its account or the account of the Issuing Bank or
respective Lender, as the case may be, the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent,
the Issuing Bank and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Administrative Agent, the Issuing Bank
or any Lender as a result of any such failure. 
For purposes of this Section, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrower.


 


(c)           Tax Forms. Prior to the date
that any Lender or Participant organized under the laws of a jurisdiction
outside the United States of America becomes a party hereto, such Person shall
deliver to the Borrower and the Administrative Agent such certificates,
documents or other evidence, as required by the Internal Revenue Code or
Treasury Regulations issued pursuant thereto (including Internal Revenue
Service Forms W-8ECI and W-8BEN,
as applicable, or appropriate successor forms), properly completed, currently
effective and duly executed by such Lender or Participant establishing that
payments to it hereunder and under the Notes are (i) not subject to United
States Federal backup withholding tax and (ii) not subject to United
States Federal withholding tax under the Code. 
Each such Lender or Participant shall (x) deliver further copies of
such forms or other appropriate certifications on or before the date that any
such forms expire or become obsolete and after the occurrence of any event
requiring a change in the most recent form delivered to the Borrower and (y) obtain
such extensions of the time for filing, and renew such forms and certifications
thereof, as may be reasonably requested by the Borrower or the Administrative
Agent.  The Borrower shall not be
required to pay any amount pursuant to last sentence of subsection (a) above
to any Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America or the Administrative Agent, if it is
organized under the laws of a jurisdiction outside of the United States of
America, if such Lender, Participant or the Administrative Agent, as
applicable, fails to comply with the requirements of this subsection.  If any such Lender or Participant fails to
deliver the above forms or other documentation, then the Administrative Agent
may withhold from such payment to such Lender such amounts as are required by
the Code. If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such
Lender shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including all fees and disbursements of any law firm or other external counsel
and the allocated cost of internal legal services and all disbursements of
internal counsel) of the Administrative Agent. 
The obligation of the Lenders under this Section shall survive the
termination of the Commitments, repayment of all Obligations and the
resignation or replacement of the Administrative Agent.


 


(d)           USA Patriot Act Notice; Compliance.  In order for the Administrative Agent to
comply with the USA Patriot Act of 2001 (Public Law 107-56), prior to any
Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America becoming a party hereto, the Administrative
Agent may request, and such Lender or Participant shall provide to the
Administrative Agent, its name, address, tax identification number and/or such
other identification information as shall be necessary for the Administrative
Agent to comply with federal law.


 


35

















 


ARTICLE IV. YIELD PROTECTION, ETC.


 


Section 4.1.  Additional Costs; Capital Adequacy.


 


(a)           Capital
Adequacy.  If any Lender or any
Participant in the Loan determines that compliance with any law or regulation
or with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law) affects or would affect the
amount of capital required or expected to be maintained by such Lender or such
Participant, or any corporation controlling such Lender or such Participant, as
a consequence of, or with reference to, such Lender’s or such Participant’s or
such corporation’s Commitments or its making or maintaining Loans below the
rate which such Lender or such Participant or such corporation controlling such
Lender or such Participant could have achieved but for such compliance (taking
into account the policies of such Lender or such Participant or such
corporation with regard to capital), then the Borrower shall, from time to
time, within thirty (30) calendar days after written demand by such Lender or
such Participant, pay to such Lender or such Participant additional amounts
sufficient to compensate such Lender or such Participant or such corporation
controlling such Lender or such Participant to the extent that such Lender or
such Participant determines such increase in capital is allocable to such
Lender’s or such Participant’s obligations hereunder.


 


(b)           Additional
Costs.  In addition to, and not in
limitation of the immediately preceding clause (a), the Borrower shall promptly
pay to the Administrative Agent for the account of a Lender from time to time
such amounts as such Lender may determine to be necessary to compensate such
Lender for any costs incurred by such Lender that it determines are
attributable to its making or maintaining of any LIBOR Loans or its obligation
to make any LIBOR Loans hereunder, any reduction in any amount receivable by
such Lender under this Agreement or any of the other Loan Documents in respect
of any of such LIBOR Loans or such obligation or the maintenance by such Lender
of capital in respect of its LIBOR Loans or its Commitments (such increases in
costs and reductions in amounts receivable being herein called “Additional
Costs”), resulting from any Regulatory Change that:  (i) changes the basis of taxation of any
amounts payable to such Lender under this Agreement or any of the other Loan
Documents in respect of any of such LIBOR Loans or its Commitments (other than
taxes imposed on or measured by the overall net income of such Lender or of its
Lending Office for any of such LIBOR Loans by the jurisdiction in which such
Lender has its principal office or such Lending Office), or (ii) imposes
or modifies any reserve, special deposit or similar requirements (including
without limitation, Regulation D of the Board of Governors of the Federal
Reserve System or other similar reserve requirement applicable to any other
category of liabilities or category of extensions of credit or other assets by
reference to which the interest rate on LIBOR Loans is determined) relating to
any extensions of credit or other assets of, or any deposits with or other
liabilities of, or other credit extended by, or any other acquisition of funds
by such Lender (or its parent corporation), or any commitment of such Lender
(including, without limitation, the Commitments of such Lender hereunder) or (iii) has
or would have the effect of reducing the rate of return on capital of such
Lender to a level below that which such Lender could have achieved but for such
Regulatory Change (taking into consideration such Lender’s policies with
respect to capital adequacy).


 


(c)           Lender’s
Suspension of LIBOR Loans.  Without
limiting the effect of the provisions of the immediately preceding subsection (a) and
(b), if by reason of any Regulatory Change, any Lender either (i) incurs
Additional Costs based on or measured by the excess above a specified level of
the


 


36

















 


amount of a category of deposits or other liabilities of such
Lender that includes deposits by reference to  which the interest rate on LIBOR Loans is determined as
provided in  this Agreement or a category
of extensions of credit or other assets of such Lender that includes LIBOR
Loans or (ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets that it may hold, then, if such Lender so
elects by notice to the Borrower (with a copy to the Administrative Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Loans
into, LIBOR Loans shall be suspended until such Regulatory Change ceases to be
in effect (in which case the provisions of Section 4.5. shall apply).


 


(d)           Additional Costs in Respect of
Letters of Credit.  Without limiting
the obligations of the Borrower under the preceding subsections of this Section (but
without duplication), if as a result of any Regulatory Change or any risk-based
capital guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable
any tax, reserve, special deposit, capital adequacy or similar requirement
against or with respect to or measured by reference to Letters of Credit and the
result shall be to increase the cost to the Issuing Bank of issuing (or any
Lender of purchasing participations in) or maintaining its obligation hereunder
to issue (or purchase participations in) any Letter of Credit or reduce any
amount receivable by the Issuing Bank or any Lender hereunder in respect of any
Letter of Credit, then, upon demand by the Issuing Bank or such Lender, the
Borrower shall pay immediately to the Issuing Bank or, in the case of such
Lender, to the Administrative Agent for the account of such Lender, from time
to time as specified by the Issuing Bank or such Lender, such additional
amounts as shall be sufficient to compensate the Issuing Bank or such Lender
for such increased costs or reductions in amount.


 


(e)           Notification
and Determination of Additional Costs.  Each of the Administrative Agent, Issuing
Bank, each Lender, and each Participant, as the case may be, agrees to notify
the Borrower of any event occurring after the Agreement Date entitling the
Administrative Agent, the Issuing Bank, such Lender or such Participant to
compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, that the failure of the
Administrative Agent, the Issuing Bank, any Lender or any Participant to give
such notice shall not release the Borrower from any of its obligations
hereunder.  The Administrative Agent, the
Issuing Bank, each Lender and each Participant, as the case may be, agrees to
furnish to the Borrower (and in the case of the Issuing Bank, a Lender or a
Participant to the Administrative Agent as well) a certificate setting forth
the basis and amount of each request for compensation under this Section.  Determinations by the Administrative Agent, the
Issuing Bank, such Lender, or such Participant, as the case may be, of the
effect of any Regulatory Change shall be conclusive and binding for all
purposes, absent manifest error.


 


Section 4.2.  Suspension of LIBOR Loans.


 


Anything
herein to the contrary notwithstanding, if, on or prior to the determination of
LIBOR for any Interest Period:


 


(a)           the Administrative
Agent reasonably determines (which determination shall be conclusive) that
quotations of interest rates for the relevant deposits referred to in the
definition of LIBOR are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for LIBOR
Loans as provided herein or is otherwise unable to determine LIBOR, or


 


(b)           the Administrative
Agent reasonably determines (which determination shall be conclusive) that the
relevant rates of interest referred to in the definition of LIBOR upon the
basis of which the rate of interest for LIBOR Loans for such Interest Period is
to be determined are not likely to adequately cover the cost to any Lender of
making or maintaining LIBOR Loans for such Interest Period;


 


37
















 


then
the Administrative Agent shall give the Borrower and each Lender prompt notice
thereof and, so long as such condition remains in effect the Lenders shall be
under no obligation to, and shall not, make additional LIBOR Loans, Continue
LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower shall, on the
last day of each current Interest Period for each outstanding LIBOR Loan,
prepay such Loan.


 


Section 4.3.  Illegality.


 


Notwithstanding any other
provision of this Agreement, if any Lender shall determine (which determination
shall be conclusive and binding) that it is unlawful for such Lender to honor
its obligation to make or maintain LIBOR Loans hereunder, then such Lender
shall promptly notify the Borrower thereof (with a copy of such notice to the
Administrative Agent) and such Lender’s obligation to make or Continue, or to
Convert Loans of any other Type into, LIBOR Loans shall be suspended until such
time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 4.5. shall be applicable).


 


Section 4.4.  Compensation.


 


The
Borrower shall pay to the Administrative Agent for the account of each Lender,
upon the request of the Administrative Agent, such amount or amounts as the
Administrative Agent shall determine in its sole discretion shall be sufficient
to compensate such Lender for any loss, cost or expense attributable to:


 


(a)           any payment or prepayment
(whether mandatory or optional) of a LIBOR Loan or Conversion of a LIBOR Loan,
made by such Lender for any reason (including, without limitation,
acceleration) on a date other than the last day of the Interest Period for such
Loan; or


 


(b)           any failure by the Borrower
for any reason (including, without limitation, the failure of any of the
applicable conditions precedent specified in Article 5.2. to be satisfied)
to borrow a LIBOR Loan from such Lender on the date for such borrowing, or to
Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the
requested date of such Conversion or Continuation.


 


Not
in limitation of the foregoing, such compensation shall include, without
limitation. in the case of a LIBOR Loan, an amount equal to the then present
value of (A) the amount of interest that would have accrued on such LIBOR
Loan for the remainder of the Interest Period at the rate applicable to such
LIBOR Loan, less (B) the amount of interest that would accrue on the same
LIBOR Loan for the same period if LIBOR were set on the date on which such
LIBOR Loan was repaid, prepaid or Converted or the date on which the Borrower
failed to borrow, Convert or Continue such LIBOR Loan, calculating present
value by using as a discount rate LIBOR quoted on such date.  Upon the Borrower’s request, the
Administrative Agent shall provide the Borrower with a statement setting forth
the basis for requesting such compensation and the method for determining the
amount thereof.  Any such statement shall
be conclusive absent manifest error.


 


Section 4.5.  Treatment of Affected Loans.


 


(a)           If the
obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(c),
Section 4.2., or Section 4.3. then such Lender’s LIBOR Loans shall be
automatically Converted into Base Rate Loans on 


 


38

















 


the last day(s) of the then current Interest Period(s) for
LIBOR Loans (or, in the case of a Conversion required by Section 4.1.(c), Section 4.2.,
or Section 4.3. on such earlier date as such Lender may specify to the
Borrower with a copy to the Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in Section 4.1.,
Section 4.2., or Section 4.3. that gave rise to such Conversion no
longer exist:


 


(i)            to the extent that such
Lender’s LIBOR Loans have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such Lender’s LIBOR Loans shall be
applied instead to its Base Rate Loans; and


 


(ii)           all Loans that would
otherwise be made or Continued by such Lender as LIBOR Loans shall be made or
Continued instead as Base Rate Loans, and all Base Rate Loans of such Lender
that would otherwise be Converted into LIBOR Loans shall remain as Base Rate
Loans.


 


If such Lender gives notice to the Borrower
(with a copy to the Administrative Agent) that the circumstances specified in Section 4.1.(c) or
4.3. that gave rise to the Conversion of such Lender’s LIBOR Loans pursuant to
this Section no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when LIBOR Loans made by other
Lenders are outstanding, then such Lender’s Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding LIBOR Loans, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding LIBOR Loans and by such Lender are held pro rata (as to principal
amounts, Types and Interest Periods) in accordance with their respective
Commitments.


 


Section 4.6.  Change of Lending Office.


 


Each
Lender agrees that it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate an alternate Lending
Office with respect to any of its Loans affected by the matters or
circumstances described in Sections 3.10., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its reasonable discretion, except that such Lender shall have no
obligation to designate a Lending Office located in the United States of
America.


 


Section 4.7.  Assumptions Concerning Funding of LIBOR
Loans.


 


Calculation
of all amounts payable to a Lender under this Article shall be made as
though such Lender had actually funded LIBOR Loans through the purchase of
deposits in the relevant market bearing interest at the rate applicable to such
LIBOR Loans in an amount equal to the amount of the LIBOR Loans and having a
maturity comparable to the relevant Interest Period; provided, however, that
each Lender may fund each of its LIBOR Loans in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts payable
under this Article.


 


ARTICLE
V. CONDITIONS PRECEDENT


 


Section 5.1.  Initial Conditions Precedent.


 


The
obligation of the Lenders to effect or permit the occurrence of the first
Credit Event hereunder, whether as the making of a Loan or the issuance of a
Letter of Credit, is subject to the satisfaction or waiver of the following
conditions precedent:


 


39

















 


(a)                                  The
Administrative Agent shall have received each of the following, in form and substance
satisfactory to the Administrative Agent:


 


(i)            counterparts of this
Agreement executed by each of the parties hereto;


 


(ii)           Revolving Notes executed by
the Borrower payable to the Lenders and complying with the terms of Section 2.11.(a) and
the Swingline Note executed by the Borrower;


 


(iii)          an opinion of Stradling
Yocca Carlson & Rauth, corporate counsel to the Borrower and the other
Loan Parties, and Kiefer & Garneau, LLC, Hawaii counsel to the
Borrower and the other Loan Parties, addressed to the Administrative Agent and
the Lenders;


 


(iv)          the certificate or articles
of incorporation, articles of organization, certificate of limited partnership,
declaration of trust or other comparable organizational instrument (if any) of
each Loan Party certified as of a recent date by the Secretary of State of the
state of formation of such Person;


 


(v)           a certificate
of good standing (or certificate of similar meaning) with respect to each Loan
Party issued as of a recent date by the Secretary of State of the state of
formation of each such Person and certificates of qualification to transact
business or other comparable certificates issued by each Secretary of State
(and any state department of taxation, as applicable) of each state in which
such Person is required to be so qualified and where failure to be so qualified
could reasonably be expected to have a Material Adverse Effect;


 


(vi)          a certificate of incumbency
signed by the Secretary or Assistant Secretary (or other individual performing
similar functions) of each Loan Party with respect to each of the officers of
such Person authorized to execute and deliver the Loan Documents to which such
Person is a party, and in the case of the Borrower, authorized to execute and
deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline
Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of
Continuation;


 


(vii)         copies certified by the
Secretary or Assistant Secretary (or other individual performing similar
functions) of each Loan Party of (A) the by-laws of such Person, if a
corporation, the operating agreement, if a limited liability company, the
partnership agreement, if a limited or general partnership, or other comparable
document in the case of any other form of legal entity and (B) all
corporate, partnership, member or other necessary action taken by such Person
to authorize the execution, delivery and performance of the Loan Documents to
which it is a party;


 


(viii)        a Transfer Authorizer
Designation Form effective as of the Agreement Date;


 


(ix)           copies of all Material
Contracts and Specified Derivatives Contracts in existence on the Agreement
Date;


 


(x)            the Fee Letter;


 


(xi)           evidence that the Fees, if
any, then due and payable under Section 3.5., together with all other fees,
expenses and reimbursement amounts due and payable to the Administrative Agent
and any of the Lenders, including without limitation, the fees and expenses of
counsel to the Administrative Agent, have been paid;


 


40

















 


(xii)         insurance
certificates, or other evidence, providing that the insurance coverage required
under section 7.5. (including, without limitation, both property and
liability insurance) is in full force and effect and stating that the coverage
shall not be cancelable or materially changed without ten (10) days prior
written notice to the Administrative Agent of any cancellation for nonpayment
or premiums, and not less than thirty (30) days prior written notice to the
Administrative Agent of any other cancellation or any modification (including a
reduction in coverage), together with appropriate evidence that the
Administrative Agent, for its benefit and the benefit of the Lenders, the
Issuing Bank, and the Specified Derivatives Providers is named as a lender’s
loss payee and additional insured, as appropriate, on all insurance policies
that the Borrower, any Loan Party or any other Subsidiary actually maintains
with respect to the Property and improvements on the Property;


 


(xiii)        with respect to
the Property


 


(a) an environmental questionnaire and
environmental site assessment with respect to the presence, if any, of
Hazardous Materials on the Property;


 


(b) copies of all agreements which are material
to the occupancy and operation of the Property;


 


(c) copies of all building permits and other
permits required in connection with the development of the Property including,
without limitation, any documentation relating to the entitlement of Kapalua
Mauka;


 


(d) copies of any initial study, negative declaration,
mitigated negative declaration, environmental impact report, notice of
determination or notice of exemption prepared, adopted, certified or filed by
or with any Governmental Authority in connection with the Property;


 


(e)  an Appraisal of the Property;


 


(f) endorsements to the Title Insurance Policy
as Administrative Agent may request insuring the priority of the Lien of the
Mortgage and such other matters as Administrative Agent may require;


 


(g) a duly executed Memorandum of Amended and
Restated Credit Agreement Amending Mortgage amending the Mortgage; and


 


(xiv)        such other
documents, agreements and instruments as the Administrative Agent, or any
Lender through the Administrative Agent, may reasonably request including
without limitation, subordination agreements, estoppels, and other agreements
with third parties relating to use, occupancy, operation, maintenance,
enjoyment or ownership of the Property.


 


(b)                                 In the good
faith judgment of the Administrative Agent:


 


(i)            there shall not have occurred
or become known to the Administrative Agent or any of the Lenders any event,
condition, situation or status since the date of the information contained in
the financial and business projections, budgets, pro forma data and forecasts
concerning the Borrower and its Subsidiaries delivered to the Administrative
Agent and the Lenders prior to the Agreement Date that has had or could
reasonably be expected to result in a Material Adverse Effect;


 


41

















 


(ii)           no litigation, action, suit,
investigation or other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be expected to (A) result in
a Material Adverse Effect or (B) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect, the
ability of any Loan Party to fulfill its obligations under the Loan Documents
to which it is a party;


 


(iii)          the Borrower and the other
Loan Parties shall have received all approvals, consents and waivers, and shall
have made or given all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the occurrence of any
default under, conflict with or violation of (A) any Applicable Law or (B) any
agreement, document or instrument to which any Loan Party is a party or by
which any of them or their respective properties is bound.


 


Section 5.2.  Conditions Precedent to All Loans and Letters
of Credit.


 


The
obligations of (i) Lenders to make any Loans, and (ii) the Issuing
Bank to issue Letters of Credit, are each subject to the further conditions
precedent that: (a) no Default or Event of Default shall exist as of the
date of the making of such Loan or date of issuance of such Letter of Credit or
would exist immediately after giving effect thereto, and no violation of the
limits described in Section 2.14. would occur after giving effect thereto;
(b) the representations and warranties made or deemed made by the Borrower
and each other Loan Party in the Loan Documents to which any of them is a
party, shall be true and correct on and as of the date of the making of such
Loan or date of issuance of such Letter of Credit with the same force and
effect as if made on and as of such date 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
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted hereunder and (c) in
the case of the borrowing of Revolving Loans, the Administrative Agent shall
have received a timely Notice of Borrowing, or in the case of a Swingline Loan,
the Swingline Lender shall have received a timely Notice of Swingline
Borrowing.  Each Credit Event shall
constitute a certification by the Borrower to the effect set forth in the
preceding sentence (both as of the date of the giving of notice relating to
such Credit Event and, unless the Borrower otherwise notifies the
Administrative Agent prior to the date of such Credit Event, as of the date of
the occurrence of such Credit Event).  In
addition, the Borrower shall be deemed to have represented to the Administrative
Agent and the Lenders at the time such Loan is made or such Letter of Credit is
issued that all conditions to the making of such Loan or issuing of such Letter
of Credit contained in this Article V. have been satisfied.


 


Section 5.3.  Conditions as Covenants.


 


If
the Lenders permit the making of any Loans, or the Issuing Bank issues a Letter
of Credit, prior to the satisfaction of all conditions precedent set forth in
Sections 5.1. and 5.2., the Borrower shall nevertheless cause such
condition or conditions to be satisfied within five (5) Business Days
after the date of the making of such Loans or the issuance of such Letter of
Credit.  Unless set forth in writing to
the contrary, the making of its initial Loan by a Lender shall constitute a
confirmation by such Lender to the Administrative Agent and the other Lenders
that insofar as such Lender is concerned the Borrower has satisfied the
conditions precedent for initial Loans set forth in Sections 5.1. and 5.2.


 


42

















 


ARTICLE
VI. REPRESENTATIONS AND WARRANTIES


 


Section 6.1.  Representations and Warranties.


 


In
order to induce the Administrative Agent and each Lender to enter into this
Agreement and to make Loans and, in the case of the Issuing Bank, to issue
Letters of Credit, the Borrower represents and warrants to the Administrative
Agent, the Issuing Bank and each Lender as follows:


 


(a)                                  Organization;
Power; Qualification.  Each of the
Loan Parties and the other Subsidiaries is a corporation, partnership or other
legal entity, duly organized or formed, validly existing and in good standing
under the jurisdiction of its incorporation or formation, has the power and
authority to own or lease its respective properties and to carry on its
respective business as now being and hereafter proposed to be conducted and is
duly qualified and is in good standing as a foreign corporation, partnership or
other legal entity, and authorized to do business, in each jurisdiction in
which the character of its properties or the nature of its business requires
such qualification or authorization and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material
Adverse Effect.


 


(b)                                 Ownership
Structure.  Part I
of Schedule 6.1.(b) is, as of the Agreement Date, a complete and
correct list of all Subsidiaries of the Borrower setting forth for each such
Subsidiary, (i) the jurisdiction of organization of such Person, (ii) each
Person holding any Equity Interest in such Person, (iii) the nature of the
Equity Interests held by each such Person and (iv) the percentage of
ownership of such Person represented by such Equity Interests.  As of the Agreement Date, except as disclosed
in such Schedule (A), each of the Borrower and its Subsidiaries owns, free
and clear of all Liens, and has the unencumbered right to vote, all outstanding
Equity Interests in each Person shown to be held by it on such Schedule, (B) all
of the issued and outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (C) there
are no outstanding subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including, without limitation, any
stockholders’ or voting trust agreements) for the issuance, sale, registration
or voting of, or outstanding securities convertible into, any additional shares
of capital stock of any class, or partnership or other ownership interests of
any type in, any such Person.  As of the
Agreement Date, Part II of Schedule 6.1.(b) correctly sets forth
all Unconsolidated Affiliates of the Borrower, including the correct legal name
of such Person, the type of legal entity which each such Person is, and all
Equity Interests in such Person held directly or indirectly by the Borrower.


 


(c)                                  Authorization
of Agreement, Notes, Loan Documents and Borrowings.  The Borrower has the right and power, and has
taken all necessary action to authorize it, to borrow and obtain other
extensions of credit hereunder.  The
Borrower and each other Loan Party has the right and power, and has taken all
necessary action to authorize it, to execute, deliver and perform each of the
Loan Documents and the Fee Letter to which it is a party in accordance with
their respective terms and to consummate the transactions contemplated hereby
and thereby.  The Loan Documents and the
Fee Letter to which the Borrower or any other Loan Party is a party have been
duly executed and delivered by the duly authorized officers of such Person and
each is a legal, valid and binding obligation of such Person enforceable
against such Person in accordance with its respective terms, except as the same
may be limited by bankruptcy, insolvency, and other similar laws affecting the
rights of creditors generally and the availability of equitable remedies for
the enforcement of certain obligations contained herein or therein and as may
be limited by equitable principles generally.


 


(d)                                 Compliance of
Agreement, Etc. with Laws.  The
execution, delivery and performance of this Agreement, the other Loan Documents
to which any Loan Party is a party and the Fee Letter in accordance with their
respective terms and the borrowings and other extensions of credit hereunder do
not and will not, by the passage of time, the giving of notice, or both:  (i) require any Governmental Approval


 


43

















 


or
violate any Applicable Law (including all Hazardous Materials Laws) relating to
any Loan Party; (ii) conflict with, result in a breach of or constitute a
default under the organizational documents of the Borrower or any other Loan
Party, or any indenture, agreement or other instrument to which any other Loan
Party is a party or by which it or any of its respective properties may be
bound; or (iii) result in or require the creation or imposition of any
Lien upon or with respect to the Property now owned or hereafter acquired by
any Loan Party other than in favor of the Administrative Agent for its benefit
and the benefit of the Lenders and the Issuing Bank.


 


(e)                                  Compliance with
Law; Governmental Approvals.  Each Loan Party and each other Subsidiary is
in compliance with each Governmental Approval and all other Applicable Laws
relating to it (and shall require such compliance from its lessees or
licensees) except for noncompliances which, and Governmental Approvals the
failure to possess which, could not, individually or in the aggregate,
reasonably be expected to cause a Default or Event of Default or have a
Material Adverse Effect.  Without
limiting the foregoing, the Property is a legal parcel lawfully created in full
compliance with all subdivision laws and ordinances, and is properly zoned for
the stated use of the Property as disclosed to Lenders at the time of execution
hereof.  Borrower shall not initiate or
acquiesce to a zoning change of the Property without prior notice to, and prior
written consent from Requisite Lenders. 
Furthermore, Borrower shall not allow changes in the stated use of the
Property from that disclosed to Lenders at the time of execution hereof without
prior notice to, and prior written consent from, Requisite Lenders.


 


(f)                                    Title to the
Property; Liens.  Schedule
6.1.(f) is, as of the Agreement Date, a complete and correct listing of
all real estate assets of the Loan Parties and the other Subsidiaries.  None of the Collateral is subject to any Lien
other than Permitted Liens.


 


(g)                                 Existing
Indebtedness; Total Liabilities.  Schedule 6.1.(g) is, as of the
Agreement Date, a complete and correct listing of all Indebtedness (including
all Guarantees) of each of the Loan Parties and the other Subsidiaries, and if
such Indebtedness is secured by any Lien, a description of all of the property
subject to such Lien. As of the Agreement Date, the Loan Parties and the other
Subsidiaries have performed and are in compliance with all of the terms of such
Indebtedness and all instruments and agreements relating thereto, and no
default or event of default, or event or condition which with the giving of
notice, the lapse of time, or both, would constitute a default or event of
default, exists with respect to any such Indebtedness.


 


(h)                                 Material
Contracts. 
Schedule 6.1.(h) is, as of the Agreement Date, a true, correct
and complete listing of all Material Contracts. 
Except with respect to the Spa Agreement, each of the Loan Parties and
the other Subsidiaries that are parties to any Material Contract has performed
and is in compliance with all of the terms of such Material Contract, and no
default or event of default, or event or condition which with the giving of
notice, the lapse of time, or both, would constitute such a default or event of
default, exists with respect to any such Material Contract.


 


(i)                                     Litigation.  Except as set forth on Schedule 6.1.(i),
there are no actions, suits or proceedings pending (nor, to the knowledge of
any Loan Party, are there any actions, suits or proceedings threatened, nor is
there any basis therefor) against or in any other way relating adversely to or
affecting, any Loan Party, any other Subsidiary or any of their respective
property in any court or before any arbitrator of any kind or before or by any
other Governmental Authority which, (i) if adversely determined, could
reasonably be expected to have a Material Adverse Effect or (ii) in any
manner draws into question the validity or enforceability of any Loan Documents
or the Fee Letter.  There are no strikes,
slow downs, work stoppages or walkouts or other labor disputes in progress
or threatened relating to, any Loan Party or any other Subsidiary.


 


44

















 


(j)                                     Taxes.  All federal, state and other tax returns of,
each Loan Party and each other Subsidiary required by Applicable Law to be
filed have been duly filed, and all federal, state and other taxes, assessments
and other governmental charges or levies upon, each Loan Party and each other
Subsidiary and their respective properties, income, profits and assets which
are due and payable have been paid, except any such nonpayment or non-filing
which is at the time permitted under Section 7.6.  As of the Agreement Date, none of the United
States income tax returns of, any Loan Party or any other Subsidiary is under
audit.  All charges, accruals and
reserves on the books of the Borrower and each of its Subsidiaries in respect
of any taxes or other governmental charges are in accordance with GAAP.


 


(k)                                  Financial
Statements.  The
Borrower has furnished to each Lender copies of (i) the audited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries
for the fiscal years ended December 31, 2007 and December 31, 2008,
and the related consolidated statements of operations, shareholders’ equity and
cash flow for the fiscal years ended on such dates, with the opinion thereon of
Deloitte & Touche LLP, and (ii) the unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries for the fiscal quarter
ended June 30, 2009, and the related consolidated statements of
operations, shareholders’ equity and cash flow of the Borrower and its
consolidated Subsidiaries for the first fiscal quarter period ended on such
date.  Such balance sheets and statements
(including in each case related schedules and notes) are complete and correct
in all material respects and present fairly, in accordance with GAAP
consistently applied throughout the periods involved, the consolidated
financial position of the Borrower and its consolidated Subsidiaries as at
their respective dates and the results of operations and the cash flow for such
periods (subject, as to interim statements, to changes resulting from normal
year-end audit adjustments).  Neither the
Borrower nor any of its Subsidiaries has on the Agreement Date any material
contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said financial statements.


 


(l)                                     No Material
Adverse Change.  Since June 30,
2009, there has been no event, change, circumstance or occurrence that could
reasonably be expected to have a Material Adverse Effect.  Each of the Borrower, the other Loan Parties
and the other Subsidiaries is Solvent except for MPC.


 


(m)                               ERISA.  Each member of the ERISA Group has fulfilled
its obligations under the contribution requirements of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan. 
No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect
of any Plan, (ii) failed to make any contribution or payment to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Internal Revenue Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.


 


(n)                                 Absence of
Default.  None of the Loan Parties or
the other Subsidiaries is in default under its articles of incorporation,
bylaws, partnership agreement or other similar organizational documents, and no
event has occurred, which has not been remedied, cured or waived:  (i) which constitutes a Default or an
Event of Default; or (ii) which constitutes, or which with the passage of
time, the giving of notice, or both, would constitute, a default or event of
default by, any Loan Party or any other Subsidiary under any agreement (other
than this Agreement) or judgment, decree or order to which any such Person is a
party or by which any such Person or any of its respective properties may be
bound where such default or event of default could, individually or in the
aggregate, have a Material Adverse Effect.


 


45

















 


(o)           Hazardous
Materials.  Without in
any way limiting the other representations and warranties set forth in this
Agreement, and after reasonable investigation and inquiry, Borrower hereby
specially represents and warrants to the best of Borrower’s knowledge as of the
date of this Agreement as follows:


 


(i)            Except as set
forth in those certain reports listed on Schedule 6.1(o) attached hereto
(the “Site Assessment”), the Property is not and has not been a site for the
use, generation, manufacture, storage, treatment, release, threatened release,
discharge, disposal, transportation or presence of any oil, flammable
explosives, asbestos, urea formaldehyde insulation, radioactive materials,
hazardous wastes, toxic or contaminated substances or similar materials,
including, without limitation, any substances which are “hazardous substances,”
“hazardous wastes,” “hazardous materials,” “toxic substances,” “wastes,” “regulated
substances,” “industrial solid wastes,” or “pollutants” under the Hazardous
Materials Laws, as described below, and/or other applicable environmental laws,
ordinances and regulations (collectively, the “Hazardous Materials”).  “Hazardous Materials” shall not include
commercially reasonable amounts of such materials used in the ordinary course
of operation and maintenance of the Property which are used and stored in accordance
with all applicable environmental laws, ordinances and regulations.


 


(ii)           The Property is
in compliance with all laws, ordinances and regulations relating to Hazardous
Materials (“Hazardous Materials Laws”), including, without limitation:  the Clean Air Act, as amended, 42 U.S.C. Section 7401
et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251
et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42
U.S.C. Section 6901 et seq.; the Comprehensive Environment Response,
Compensation and Liability Act of 1980, as amended (including the Superfund
Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601
et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601
et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651,
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001
et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section 801
et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f
et seq.; the Hawaii Occupational Safety and Health Law, Haw. Rev. Stat. Chapter
392, as amended; Haw. Rev. Stat. Chapters 128D (Environmental Response), 149A
(Pesticides), 195D (Conservation), 340A (Solid Waste), 340E (Safe Drinking
Water), 342B (Air Pollution Control), 342D (Water Pollution), 342F (Noise
Pollution), 342H (Solid Waste Pollution), 342J (Hazardous Waste), 342L
(Underground Storage Tanks), and 342P (Asbestos), all as amended; and all
comparable state and local laws, laws of other jurisdictions or orders and
regulations.


 


(iii)          There are no
claims or actions (“Hazardous Materials Claims”) pending or threatened against
Borrower, the Property by any governmental entity or agency or by any other
person or entity relating to Hazardous Materials or pursuant to the Hazardous
Materials Laws.


 


(p)           Investment
Company.  No Loan Party, nor any other
Subsidiary is (i) an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
or (ii) subject to any other Applicable Law which purports to regulate or
restrict its ability to borrow money or obtain other extensions of credit or to
consummate the transactions contemplated by this Agreement or to perform its
obligations under any Loan Document to which it is a party.


 


46

















 


(q)                                 Margin Stock.  No Loan Party nor any other Subsidiary is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying “margin stock” within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System.


 


(r)                                    Affiliate
Transactions.  Except as
permitted by Section 9.9. or as otherwise set forth on Schedule 6.1.(r),
no Loan Party nor any other Subsidiary is a party to or bound by any agreement
or arrangement (whether oral or written) with any Affiliate.


 


(s)                                  Intellectual
Property.  Each of the
Loan Parties and each other Subsidiary owns or has the right to use, under
valid license agreements or otherwise, all patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights, trade secrets and
copyrights (collectively, “Intellectual Property”) necessary to the conduct of
its businesses, without known conflict with any patent, license, franchise,
trademark, trade secret, trade name, copyright, or other proprietary right of
any other Person.  All such Intellectual
Property is fully protected and/or duly and properly registered, filed or
issued in the appropriate office and jurisdictions for such registrations,
filing or issuances.  No material claim
has been asserted by any Person with respect to the use of any such
Intellectual Property, or challenging or questioning the validity or
effectiveness of any such Intellectual Property.


 


(t)                                    Business.  As of the Agreement Date, the Loan Parties
and the other Subsidiaries are engaged in the business of agriculture, real
estate development and property management.


 


(u)                                 Broker’s Fees.  No broker’s or finder’s fee, commission or
similar compensation will be payable with respect to the transactions
contemplated hereby.  No other similar
fees or commissions will be payable by any Loan Party for any other services
rendered to any Loan Party or any other Subsidiaries ancillary to the
transactions contemplated hereby.


 


(v)                                 Accuracy and
Completeness of Information.  All written information, reports and other
papers and data furnished to the Administrative Agent or any Lender by, on
behalf of, or at the direction of, any Loan Party or any other Subsidiary were,
at the time the same were so furnished, complete and correct in all material
respects, to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter, or, in the case of financial statements,
present fairly, in accordance with GAAP consistently applied throughout the
periods involved, the financial position of the Persons involved as at the date
thereof and the results of operations for such periods.  No fact is known to any Loan Party which has
had, or may in the future have (so far as any Loan Party can reasonably
foresee), a Material Adverse Effect which has not been set forth in the
financial statements referred to in Section 6.1.(k) or in such
information, reports or other papers or data or otherwise disclosed in writing
to the Administrative Agent and the Lenders prior to the Effective Date.  No document furnished or written statement
made to the Administrative Agent or any Lender in connection with the
negotiation, preparation or execution of, or pursuant to, this Agreement or any
of the other Loan Documents contains or will contain any untrue statement of a
fact material to the creditworthiness of any Loan Party or any other Subsidiary
or omits or will omit to state a material fact necessary in order to make the
statements contained therein not misleading.


 


(w)                               Not Plan
Assets; No Prohibited Transactions.  For purposes of ERISA and the Internal
Revenue Code, none of the assets of any Loan Party or any other Subsidiary
constitutes “plan assets”, within the meaning of ERISA and the regulations
promulgated thereunder, of any Plan.  The
execution, delivery and performance of the Loan Documents and the Fee Letter by
the Loan Parties, and the borrowing, other credit extensions and repayment of
amounts thereunder, do not and will not constitute “prohibited transactions”
under ERISA or the Internal Revenue Code.


 


47
















 


(x)            OFAC.  None of the Borrower, any of the other Loan
Parties, any of the other Subsidiaries, or any other Affiliate of the Borrower:
(i) is a person named on the list of Specially Designated Nationals or
Blocked Persons maintained by the U.S. Department of the Treasury’s Office of
Foreign Assets Control (“OFAC”) available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise
published from time to time; (ii) is (A) an agency of the government
of a country, (B) an organization controlled by a country, or (C) a
person resident in a country that is subject to a sanctions program identified
on the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise
published from time to time, as such program may be applicable to such agency,
organization or person; or (iii) derives any of its assets or operating
income from investments in or transactions with any such country, agency,
organization or person; and none of the proceeds from the Loan will be used to
finance any operations, investments or activities in, or make any payments to,
any such country, agency, organization, or person


 


(y)           Security Interests.  Each of the Security Documents creates, as
security for the Obligations and the Specified Derivatives Obligations, a valid
and enforceable Lien on all of the Collateral, superior to and prior to the
rights of all third persons and subject to no other Liens (except for Permitted
Liens), in favor of the Administrative Agent for its benefit and the benefit of
the Lenders, the Issuing Bank and each Specified Derivatives Provider.


 


Section 6.2.  Survival of Representations and Warranties,
Etc.


 


All
statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of any Loan Party or any other Subsidiary
to the Administrative Agent or any Lender pursuant to or in connection with
this Agreement or any of the other Loan Documents (including, but not limited
to, any such statement made in or in connection with any amendment thereto or
any statement contained in any certificate, financial statement or other
instrument delivered by or on behalf of any Loan Party prior to the Agreement
Date and delivered to the Administrative Agent or any Lender in connection with
the underwriting or closing the transactions contemplated hereby) shall
constitute representations and warranties made by the Borrower under this
Agreement.  All representations and
warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date and at
and as of the date of the occurrence of each Credit Event, 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 accurate on and as of such earlier date) and except for changes in factual
circumstances expressly and specifically permitted hereunder.  All representations and warranties made or, pursuant
to the first sentence of this Section, deemed made) under this Agreement and
the other Loan Documents, shall survive the effectiveness of this Agreement,
the execution and delivery of the Loan Documents and the making of the Loans
and the issuance of the Letters of Credit.


 


ARTICLE
VII. AFFIRMATIVE COVENANTS


 


For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.7., all of the Lenders) shall otherwise
consent in the manner provided for in Section 12.7., the Borrower shall
comply with the following covenants:


 


Section 7.1.  Preservation of Existence and Similar
Matters.


 


Except
as otherwise permitted under Section 9.4., the Borrower shall, and shall
cause each other Loan Party and each other Subsidiary to, preserve and maintain
its respective existence, rights, franchises, licenses and privileges in the
jurisdiction of its incorporation or formation and qualify and remain qualified
and authorized to do business in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification and
authorization and where the failure to be so authorized and qualified could
reasonably be expected to have a Material Adverse Effect.


 


48

















 


Section 7.2.  Compliance with Applicable Law.


 


The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, comply with all Applicable Law, including the obtaining of all
Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect.


 


Section 7.3.  Maintenance of Property.


 


In
addition to the requirements of any of the other Loan Documents, the Borrower
shall, and shall cause each other Loan Party and each other Subsidiary to, (a) protect
and preserve all of its material properties, including, but not limited to, all
Intellectual Property necessary to the conduct of its respective business, and
maintain in good repair, working order and condition all tangible properties,
ordinary wear and tear excepted, and (b) from time to time make or cause
to be made all needed and appropriate repairs, renewals, replacements and
additions to such properties, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.


 


Section 7.4.  Conduct of Business.


 


The
Borrower shall, and shall cause the other Loan Parties and each other
Subsidiary to, carry on its respective businesses as described in Section 6.1.(t) and
not enter into any line of business not otherwise engaged in by such Person as
of the Agreement Date.


 


Section 7.5.  Insurance.


 


The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, maintain insurance with insurance companies having Bests Ratings of at
least A-VII against such risks and in such amounts as is customarily maintained
by similar businesses or as may be required by Applicable Law. The Borrower
shall from time to time deliver to the Administrative Agent upon request a
detailed list, together with copies of all policies of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby and/or insurance certificates, in form reasonably acceptable to
the Administrative Agent, providing that the insurance coverage required under
this Section 7.5. (including without limitation, both property and
liability insurance) is in full force and effect and stating that coverage
shall not be cancelable or materially changed without ten (10) days prior
written notice to the Administrative Agent of any cancelation for nonpayment or
premiums, and not less than thirty (30) days prior written notice to the
Administrative Agent of any other cancellation or any modification (including a
reduction in coverage), together with appropriate evidence that the
Administrative Agent, for the benefit of the Lenders, the Issuing Bank and the
Specified Derivatives Providers, is named as lender’s loss payee and additional
insured, as appropriate, on all insurance policies that the Borrower, any Loan
Party or any other Subsidiary actually maintains with respect to the Property
and Improvements on the Property.  Such
insurance shall, in any event, include terrorism coverage and all of the
following:


 


(a)           Insurance against loss to the
Property on an “all risk” policy form, covering insurance risks no less broad
than those covered under a Special Multi Peril (SMP) policy form, which
contains a Commercial ISO “Causes of Loss-Special Form,” in the then current
form, and such other risks as Administrative Agent may reasonably require, in
amounts equal to the full replacement cost of the Property including fixtures
and equipment, Borrower’s interest in leasehold improvements, and the cost of
debris removal, with, if required by the Administrative Agent, an agreed amount
endorsement, and with deductibles of not more than $25,000.00, except that any
deductibles for any insurance covering damage by windstorm may be in amounts up
to 5% of the value of the property insured;


 


49

















 


(b)           Business income insurance in amounts
sufficient to pay during any period in which a Property may be damaged or
destroyed, for a period of twelve (12) months; (i) at least 100% of all
rents and (ii) all amounts (including, but not limited to, all taxes,
assessments, utility charges and insurance premiums) required to be paid by
tenants of the Property;


 


(c)           During the making of any alterations
or improvements to a Property, carry or cause to be carried builder’s completed
value risk insurance against “all risks of physical loss” for the full
replacement cost of the Property;


 


(d)           Insurance against loss or damage by
flood or mud slide in compliance with the Flood Disaster Protection Act of
1973, as amended from time to time, if the Property is now, or at any time
while the Obligations or any portion thereof remains unpaid shall be, situated
in any area which an appropriate Governmental Authority designates as a special
flood hazard area, in amounts equal to the full replacement value of all above
grade structures on the Property, or as such lesser amounts as may be available
under federal flood insurance programs;


 


(e)           Commercial general public liability
insurance, with the location of the Property designated thereon, against death,
bodily injury and property damage arising on, about or in connection with the
Property, with Borrower or the Applicable Subsidiary listed as the named
insured, with such limits as Borrower or the Applicable Subsidiary may
reasonably require (but in no event less than $5,000,000.00; and


 


(f)            Such other insurance, including,
without limitation, earthquake and environmental coverages, relating to the
Property and the uses and operation thereof as Administrative Agent may, from
time to time, reasonably require.


 


Section 7.6.  Payment of Taxes and Claims.


 


The
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, pay and discharge when due (a) all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or upon any
properties belonging to it, and (b) all lawful claims of materialmen,
mechanics, carriers, warehousemen and landlords for labor, materials, supplies
and rentals which, if unpaid, might become a Lien on any properties of such
Person; provided, however, that this Section shall not require the payment
or discharge of any such tax, assessment, charge, levy or claim which is being
contested in good faith by appropriate proceedings which operate to suspend the
collection thereof and for which adequate reserves have been established on the
books of such Person in accordance with GAAP.


 


Section 7.7.  Books and Records; Inspections.


 


The Borrower will, and will cause each other Loan Party and
each other Subsidiary to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions
in relation to its business and activities. 
The Borrower will, and will cause each other Loan Party and each other
Subsidiary to, permit representatives of the Administrative Agent or any
Lender to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants (in the Borrower’s presence if an
Event of Default does not then exist), all at such reasonable times during
business hours and as often as may reasonably be requested and so long as no
Event of Default exists, with reasonable prior notice.  The


 


50

















 


Borrower
shall be obligated to reimburse the Administrative Agent and the Lenders for
their costs and expenses incurred in connection with the exercise of their
rights under this Section only if such exercise occurs while a Default or
Event of Default exists.


 


Section 7.8.  Use of Proceeds.


 


The
Borrower will only use the proceeds of Loans only (a) for the payment of
short-term capital requirements related to real estate activities such as
pre-development and development costs, capital improvements and working capital
and (b) to provide for the general working capital needs of the Borrower
and its Subsidiaries and for other general corporate purposes of the Borrower
and its Subsidiaries.  The Borrower shall
only use Letters of Credit for the same purposes for which it may use the
proceeds of Loans.  The Borrower shall
not, and shall not permit any other Loan Party or any other Subsidiary to, use
any part of such proceeds to purchase or carry, or to reduce or retire or
refinance any credit incurred to purchase or carry, any margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System) or to extend credit to others for the purpose of purchasing or carrying
any such margin stock.


 


Section 7.9.  Environmental Matters.


 


(a)           Borrower shall not cause or permit
the Property to be used as a site for the use, generation, manufacture,
storage, treatment, release, discharge, disposal, transportation or presence of
any Hazardous Materials.


 


(b)           Borrower shall comply and cause the
Property to comply in all material respects with all Hazardous Materials Laws.


 


(c)           Borrower shall immediately notify
Administrative Agent in writing of:  (i) the
discovery of any Hazardous Materials on, under or about the Property; (ii) any
knowledge by Borrower that the Property does not comply with any Hazardous
Materials Laws; and (iii) any Hazardous Materials Claims.


 


(d)           In response to the presence of any
Hazardous Materials on, under or about the Property, Borrower shall immediately
take, at Borrower’s sole expense, all remedial action required by any Hazardous
Materials Laws or any judgment, consent decree, settlement or compromise in
respect to any Hazardous Materials Claims, not later than fifteen (15) days
after written notice from Administrative Agent that it is in default of any
such obligation.


 


(e)           Upon reasonable prior notice to
Borrower and subject to the rights of tenants, Administrative Agent, its
employees and agents, may from time to time (whether before or after the
commencement of a nonjudicial or judicial foreclosure proceeding) enter and
inspect the Property for the purpose of determining the existence, location,
nature and magnitude of any past or present release or threatened release of
any Hazardous Materials into, onto, beneath or from the Property.


 


(f)            BORROWER HEREBY AGREES TO DEFEND,
INDEMNIFY AND HOLD HARMLESS ADMINISTRATIVE AGENT AND EACH LENDER, AND THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FROM
AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS,
COURT COSTS AND LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS’ FEES AND EXPENSES) WHICH ADMINISTRATIVE AGENT AND/OR ANY LENDER MAY INCUR
AS A DIRECT OR INDIRECT CONSEQUENCE OF THE USE, GENERATION, MANUFACTURE,
STORAGE, DISPOSAL, THREATENED DISPOSAL, TRANSPORTATION OR PRESENCE OF HAZARDOUS
MATERIALS IN, ON, UNDER OR ABOUT 


 


51

















 


THE
PROPERTY OR IMPROVEMENTS.  BORROWER SHALL
IMMEDIATELY PAY TO ADMINISTRATIVE AGENT AND/OR ANY LENDER, UPON DEMAND, ANY
AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE
INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE
PRINCIPAL BALANCE OF THE LOAN.  BORROWER’S
DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS ADMINISTRATIVE
AGENT AND EACH LENDER SHALL SURVIVE THE CANCELLATION OF THE NOTES AND THE
RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF THE MORTGAGE.  NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, BORROWER SHALL NOT BE LIABLE FOR ANY HAZARDOUS MATERIALS
PLACED IN, UNDER, OVER, FROM OR AFFECTING THE PROPERTY AFTER THE LATER OF SUCH
TIME AS BORROWER IS NO LONGER EITHER THE OWNER OF THE PROPERTY OR IN POSSESSION
OF THE PROPERTY; PROVIDED, HOWEVER, THAT (I) THE MIGRATION OF ANY HAZARDOUS
MATERIALS PLACED IN, UNDER, OVER, FROM OR AFFECTING THE PROPERTY, WHICH
MATERIALS WERE PRESENT PRIOR TO THE LATER OF SUCH TIME WHEN BORROWER IS NO
LONGER EITHER THE OWNER OF THE PROPERTY OR IN POSSESSION OF THE PROPERTY SHALL
REMAIN THE LIABILITY OF BORROWER; AND (II) BORROWER SHALL HAVE THE BURDEN
OF PROVING THAT SUCH ENVIRONMENTAL CONDITION OCCURRED SUBSEQUENT TO BORROWER’S
OWNERSHIP OR POSSESSION OF THE PROPERTY, AS THE CASE MAY BE.  IT IS EXPRESSLY UNDERSTOOD THAT BORROWER’S
DUTY TO INDEMNIFY ADMINISTRATIVE AGENT AND LENDERS HEREUNDER SHALL
SURVIVE:  (I) ANY JUDICIAL OR
NON-JUDICIAL FORECLOSURE UNDER THE MORTGAGE, OR TRANSFER OF THE PROPERTY IN
LIEU THEREOF; (II) THE RELEASE AND RECONVEYANCE OR CANCELLATION OF THE
MORTGAGE; AND (III) THE SATISFACTION OF ALL OF BORROWER’S OBLIGATIONS
UNDER THE LOAN DOCUMENTS.


 


Section 7.10.  Further Assurances.


 


At
the Borrower’s cost and expense and upon request of the Administrative Agent,
the Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, duly execute and deliver or cause to be duly executed and
delivered, to the Administrative Agent such further instruments, documents and
certificates, and do and cause to be done such further acts that may be
reasonably necessary or advisable in the reasonable opinion of the
Administrative Agent to carry out more effectively the provisions and purposes
of this Agreement and the other Loan Documents.


 


Section 7.11.  Material Contracts.


 


Except
with respect to the Spa Agreement, the Borrower shall, and shall cause each
other Loan Party and each other Subsidiary to, duly and punctually perform and
comply with any and all material representations, warranties, covenants and
agreements expressed as binding upon any such Person under any Material
Contract.  The Borrower shall not, and
shall not permit any other Loan Party or any other Subsidiary to, do or
knowingly permit to be done anything to impair materially the value of any of
the Material Contracts.


 


Section 7.12.  Exchange Listing.


 


The
Borrower shall maintain at least one class of common shares of the Borrower
having trading privileges on the New York Stock Exchange or the American Stock
Exchange or which is subject to price quotations on The NASDAQ Stock Market’s
National Market System, provided, however, that Borrower shall not be in
default of this covenant until it shall not have had such trading privileges
for thirty consecutive days and, during such thirty day period, Requisite
Lenders in their sole discretion shall not have waived compliance with this
covenant.


 


52

















 


Section 7.13.  Subdivision Maps.


 


Prior
to recording any final map, plat, parcel map, lot line adjustment or other
subdivision map of any kind covering any portion of the Property (collectively,
“Subdivision Map”), Borrower shall submit such Subdivision Map to
Administrative Agent for Administrative Agent’s review and approval, which
approval shall not be unreasonably withheld. 
Within ten (10) Business Days after Administrative Agent’s receipt
of such Subdivision Map, Administrative Agent shall provide Borrower written
notice if Administrative Agent disapproves of said Subdivision Map.  Within five (5) Business Days after
Administrative Agent’s request, Borrower shall execute, acknowledge and deliver
to Administrative Agent such amendments to the Loan Documents as Administrative
Agent may reasonably require to reflect the change in the legal description of
the Property resulting from the recordation of any Subdivision Map.  In connection with and promptly after the
recordation of any amendment or other modification to the Mortgage recorded in
connection with such amendments, Borrower shall deliver to Administrative
Agent, for the benefit of Lenders, at Borrower’s sole expense, a title endorsement
to the title policy insuring the Mortgage in form and substance reasonably
satisfactory to Administrative Agent insuring the continued first priority lien
of the Mortgage.  Subject to the
execution and delivery by Borrower of any documents required under this
Section, Administrative Agent, on behalf of Lenders, shall, if required by
applicable law, sign any Subdivision Map approved by Administrative Agent
pursuant to this Section.


 


Section 7.14.  Liens.


 


If
a claim of Lien, other than a Permitted Lien, is recorded which affects the
Property, Borrower shall, within twenty (20) calendar days of such recording or
service or within five (5) calendar days of Administrative Agent’s demand,
whichever occurs first:  (a) pay and
discharge the claim of Lien; (b) effect the release thereof by recording
or delivering to Administrative Agent a surety bond in sufficient form and
amount; or (c) provide Administrative Agent with other assurances which
Administrative Agent deems, in its reasonable discretion, to be satisfactory
for the payment of such claim of Lien and for the full and continuous
protection of Administrative Agent and Lenders from the effect of such Lien.


 


Section 7.15.  Water Delivery Agreement.


 


Borrower
shall, and shall cause, Leasehold Mortgagor, MPC, and each of Borrower’s
Affiliates, as necessary, to fully comply with the terms and provisions of, and
to fully perform any and all obligations under and as required by, the Water
Delivery Agreement and the Collateral Assignment of Water Delivery Agreement.   Without limitation of any other provision of
the Loan Documents, this agreement shall survive any judicial or non-judicial
foreclosure under the Mortgage, or transfer of the Property in lieu thereof or
the release and reconveyance or cancellation of the Mortgage.


 


Section 7.16.  Kahului Prepayment.


 


Not
later than ten (10) days after the sale or other disposition of all or any
portion of the Kahului Property, Borrower shall prepay principal of the
Obligations in an amount equal to the Kahului Prepayment.  The Kahului Prepayment (i) shall
be applied in accordance with Sections 3.2. and 10.5, (ii) shall
permanently reduce the Commitment of each Lender in an amount equal to such
Lender’s Pro Rata Share of the Kahului Prepayment and (iii) may not be
reborrowed .  In the event that the
Kahului Property is subdivided, the Kahului Prepayment shall be made upon each
sale or other disposition of all or any portion of the Kahului Property.  Borrower shall not amend or modify the terms
of the Kahului Mortgage, the Kahului Note or the Transaction Documents (as
defined in the Kahului SPA) in such a manner as to alter the provisions
relating to the Kahului Property or the terms of its release (including the
Kahului Release Price) without the prior written consent of the Administrative
Agent.


 


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ARTICLE
VIII.  INFORMATION


 


For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.7., the Borrower shall
furnish to the Administrative Agent for distribution to each of the Lenders:


 


Section 8.1.  Quarterly Financial Statements.


 


As
soon as available and in any event within sixty (60) days after the close of
each of the first, second and third fiscal quarters of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such period and the related unaudited consolidated statements of operations,
stockholders’ equity and cash flows of the Borrower and its Subsidiaries for
such period, setting forth in each case in comparative form the figures as of
the end of and for the corresponding periods of the previous fiscal year, all
of which shall be certified by the chief financial officer of the Borrower, in
his or her opinion, to present fairly, in accordance with GAAP, the
consolidated financial position of the Borrower and its Subsidiaries as at the
date thereof and the results of operations for such period (subject to normal
year-end audit adjustments).


 


Section 8.2.  Year-End Statements.


 


As
soon as available and in any event within ninety (90) days after the end of
each fiscal year of the Borrower, the audited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the related
audited consolidated statements of operations, stockholders’ equity and cash
flows of the Borrower and its Subsidiaries for such fiscal year, setting forth
in comparative form the figures as at the end of and for the previous fiscal
year, all of which shall be certified by (a) the chief financial officer
of the Borrower, in his or her opinion, to present fairly, in accordance with
GAAP, the financial position of the Borrower and its Subsidiaries as at the
date thereof and the result of operations for such period and (b) Deloitte &
Touche LLP or any other independent certified public accountants of recognized
national standing acceptable to the Requisite Lenders, whose certificate shall
be unqualified and in scope and substance satisfactory to the Requisite Lenders
and who shall have authorized the Borrower to deliver such financial statements
and certification thereof to the Administrative Agent and the Lenders pursuant
to this Agreement.


 


Section 8.3.  Compliance Certificate.


 


At
the time the financial statements are furnished pursuant to the immediately
preceding Sections 8.1. and 8.2., a certificate substantially in the form
of Exhibit I (a “Compliance Certificate”) executed on behalf of the
Borrower by the chief financial officer of the Borrower (a) setting forth
as of the end of such quarterly accounting period or fiscal year, as the case
may be, the calculations required to establish whether the Borrower was in
compliance with the covenants contained in Section 9.1.; and (b) stating
that no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred
and the steps being taken by the Borrower with respect to such event, condition
or failure.


 


54
















 


Section 8.4.  Other Information.


 


(a)           Promptly upon receipt thereof, copies
of all reports, if any, submitted to the Borrower or its Board of Directors by
its independent public accountants including, without limitation, any
management report;


 


(b)           Within five (5) Business Days of
the filing thereof, copies of all registration statements (excluding the
exhibits thereto and any registration statements on Form S-8 or its
equivalent), reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which any Loan Party or any other Subsidiary shall file
with the SEC (or any Governmental Authority substituted therefor) or any
national securities exchange;


 


(c)           Promptly upon the mailing thereof to
the shareholders of the Borrower generally, copies of all financial statements,
reports and proxy statements so mailed and promptly upon the issuance thereof
copies of all press releases issued by the Borrower, any Subsidiary or any
other Loan Party;


 


(d)           Within twenty-five (25) days after
the end of each fiscal quarter of the Borrower, an operating summary with
respect to the Commercial Property, including without limitation, a quarterly
and year-to-date statement of net operating income and a leasing/occupancy
status report together with a current rent roll for the Commercial Property.


 


(e)           No later than sixty (60) days before
the end of each fiscal year of the Borrower ending prior to the Maturity Date,
projected balance sheets, operating statements, profit and loss projections and
cash flow budgets of the Borrower and its Subsidiaries on a consolidated basis
for each quarter  of the next succeeding fiscal
year, all itemized in reasonable detail. The foregoing shall be accompanied by
pro forma calculations, together with detailed assumptions, required to
establish whether or not the Borrower, and when appropriate its consolidated
Subsidiaries, will be in compliance with the covenants contained in
Sections 9.1. and at the end of each fiscal quarter of the next succeeding
fiscal year.


 


(f)            No later than thirty (30) days
before the end of each fiscal year of the Borrower ending prior to the Maturity
Date, a property budget for the Property for the coming fiscal year of the
Borrower, together with applicable investment memorandums.


 


(g)           Within ten (10) Business Days of
the Administrative Agent’s request therefor, a report in form and content
satisfactory to the Administrative Agent detailing the Borrower’s, together
with its Subsidiaries’, projected sources and uses of cash for the period of
four consecutive fiscal quarters immediately following the date of the
Administrative Agent’s request.  Such
sources shall include but not be limited to excess operating cash flow,
availability under this Agreement, unused availability under committed
development loans, unfunded committed equity and any other committed sources of
funds.  Such uses shall include but not
be limited to cash obligations for binding acquisitions, unfunded development
costs, capital expenditures, debt service, overhead, dividends, maturing Property
loans, hedge settlements and other anticipated uses of cash.


 


(h)           If and when any member of the ERISA
Group (i) gives or is required to give notice to the PBGC of any “reportable
event” (as defined in Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the notice of
such reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under


 


55

















 


Section 4007
of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice; or (vii) fails to make any payment or contribution to
any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the controller of the Borrower setting forth details
as to such occurrence and action, if any, which the Borrower or applicable
member of the ERISA Group is required or proposes to take;


 


(i)            To the extent any Loan Party or any
other Subsidiary is aware of the same, prompt notice of the commencement of any
proceeding or investigation by or before any Governmental Authority and any
action or proceeding in any court or other tribunal or before any arbitrator
against or in any other way relating adversely to, or adversely affecting, the
any Loan Party or any other Subsidiary or any of their respective properties,
assets or businesses which, if determined or resolved adversely to such Person,
could reasonably be expected to have a Material Adverse Effect, and prompt
notice of the receipt of notice that any United States income tax returns of
any Loan Party or any other Subsidiary are being audited;


 


(j)            A copy of any amendment to the
articles of incorporation, bylaws, partnership agreement or other similar
organizational documents of the Borrower, any other Loan Party or any other
Subsidiary within five (5) Business Days after the effectiveness thereof;


 


(k)           Prompt notice of any change in the
senior management of the Borrower, any Subsidiary or any other Loan Party and
any change in the business, assets, liabilities, financial condition, results
of operations or business prospects of any Loan Party or any other Subsidiary
which has had or could have Material Adverse Effect;


 


(l)            Prompt notice of the occurrence of
any Default or Event of Default or any event which constitutes or which with
the passage of time, the giving of notice, or otherwise, would constitute a
default or event of default by any Loan Party or any other Subsidiary under any
Material Contract to which any such Person is a party or by which any such
Person or any of its respective properties may be bound;


 


(m)          Promptly upon entering into any
Material Contract or Specified Derivatives Contract after the Agreement Date, a
copy of such contract;


 


(n)           Prompt notice of any order, judgment
or decree in excess of $100,000 having been entered against any Loan Party or
any other Subsidiary or any of their respective properties or assets;


 


(o)           Any notification of a material
violation of any law or regulation or any inquiry shall have been received by any
Loan Party or any other Subsidiary from any Governmental Authority;


 


(p)           Prompt notice of the acquisition,
incorporation or other creation of any Subsidiary, the purpose for such
Subsidiary, the nature of the assets and liabilities thereof and whether such
Subsidiary is a Wholly Owned Subsidiary of the Borrower;


 


(q)           Promptly upon the request of the
Administrative Agent, evidence of the Borrower’s calculation of the Ownership
Share with respect to a Subsidiary or an Unconsolidated Affiliate, such evidence
to be in form and detail satisfactory to the Administrative Agent;


 


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(r)            Reserved;


 


(s)           Promptly, upon each request,
information identifying the Borrower as a Lender may request in order to comply
with the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001));


 


(t)            Promptly, and in any event within
three (3) business days after the Borrower obtains knowledge thereof, the
Borrower shall provide the Administrative Agent with written notice of the
occurrence of any of the following:  (i) the
Borrower, any Loan Party or any other Subsidiary shall receive notice that any
violation of or noncompliance with any Hazardous Materials Law has or may have
been committed or is threatened; (ii) the Borrower, any Loan Party or any
other Subsidiary shall receive notice that any administrative or judicial
complaint, order or petition has been filed or other proceeding has been
initiated, or is about to be filed or initiated against any such Person
alleging any violation of or noncompliance with any Hazardous Materials Law or
requiring any such Person to take any action in connection with the release or
threatened release of Hazardous Materials; (iii) the Borrower, any Loan
Party or any other Subsidiary shall receive any notice from a Governmental
Authority or private party alleging that any such Person may be liable or
responsible for any costs associated with a response to, or remediation or
cleanup of, a release or threatened release of Hazardous Materials or any
damages caused thereby; or (iv) the Borrower, any Loan Party or any other
Subsidiary shall receive notice of any other fact, circumstance or condition
that could reasonably be expected to form the basis of an environmental claim,
and  such notice(s), whether individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect; .


 


(u)           Promptly upon the request of the
Administrative Agent, the Derivatives Termination Value in respect of any
Specified Derivatives Contract from time to time outstanding; and


 


(v)           From time to time and promptly upon
each request, such data, certificates, reports, statements, opinions of
counsel, documents or further information regarding the Property or the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower, any of its Subsidiaries, or any other Loan
Party as the Administrative Agent or any Lender may reasonably request.


 


Section 8.5.  Electronic Delivery of Certain Information.


 


(a)           Documents required to be delivered
pursuant to the Loan Documents shall be delivered by electronic communication
and delivery, including, the Internet, e-mail or intranet websites to which the
Administrative Agent and each Lender have access (including a commercial,
third-party website such as www.Edgar.com <http://www.Edgar.com> or a
website sponsored or hosted by the Administrative Agent or the Borrower)
provided that (A) the foregoing shall not apply to notices to any Lender
(or the Issuing Bank) pursuant to Article II. and (B) the Lender has
not notified the Administrative Agent or Borrower that it cannot or does not
want to receive electronic communications. 
The Administrative Agent or the Borrower may, in its discretion, agree
to accept notices and other communications to it hereunder by electronic
delivery pursuant to procedures approved by it for all or particular notices or
communications.  Documents or notices
delivered electronically shall be deemed to have been delivered twenty-four
(24) hours after the date and time on which the Administrative Agent or
Borrower posts such documents or the documents become available on a commercial
website and the Administrative Agent or Borrower notifies each Lender of said
posting and provides a link thereto provided if such notice or other
communication is not sent or posted during the normal business hours of the
recipient, said posting date and time shall be deemed to have commenced as
of  9:00 a.m. on the opening of
business on the next business day for the recipient.  Notwithstanding anything contained herein, in
every instance the


 


57

















 


Borrower
shall be required to provide paper copies of the certificate required by Section 8.3.
to the Administrative Agent and shall deliver paper copies of any documents to
the Administrative Agent or to any Lender that requests such paper copies until
a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender. 
Except for the certificates required by Section 8.3., the
Administrative Agent shall have no obligation to request the delivery of or to
maintain paper copies of the documents delivered electronically, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery.  Each
Lender shall be solely responsible for requesting delivery to it of paper
copies and maintaining its paper or electronic documents.


 


(b)           Documents required to be delivered
pursuant to Article II. may be delivered electronically to a website
provided for such purpose by the Administrative Agent pursuant to the
procedures provided to the Borrower by the Administrative Agent.


 


Section 8.6.  Public/Private Information.


 


The
Borrower shall cooperate with the Administrative Agent in connection with the
publication of certain materials and/or information provided by or on behalf of
the Borrower.  Documents required to be
delivered pursuant to the Loan Documents shall be delivered by or on behalf of
the Borrower to the Administrative Agent and the Lenders (collectively, “Information
Materials”) pursuant to this Article and shall designate Information
Materials (a) that are either available to the public or not material with
respect to the Borrower and its Subsidiaries or any of their respective
securities for purposes of United States federal and state securities laws, as “Public
Information” and (b) that are not Public Information as “Private
Information”.


 


Section 8.7.  USA Patriot Act Notice; Compliance.


 


The
USA Patriot Act of 2001 (Public Law 107-56) and federal regulations issued with
respect thereto require all financial institutions to obtain, verify and record
certain information that identifies individuals or business entities which open
an “account” with such financial institution. 
Consequently, a Lender (for itself and/or as Administrative Agent for
all Lenders hereunder) may from time-to-time request, and the Borrower shall,
and shall cause the other Loan Parties, to provide to such Lender, such Loan Party’s
name, address, tax identification number and/or such other identification
information as shall be necessary for such Lender to comply with federal
law.  An “account” for this purpose may
include, without limitation, a deposit account, cash management service, a
transaction or asset account, a credit account, a loan or other extension of
credit, and/or other financial services product.


 


ARTICLE
IX. NEGATIVE COVENANTS


 


For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.7., the Borrower shall
comply with the following covenants:


 


Section 9.1.  Financial Covenants.


 


(a)           Liquidity.  The Borrower shall maintain, as of the end of
each calendar quarter, Liquidity of not 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 Administrative Agent in
its reasonable discretion, (iv) undisbursed commitment under secured lines
of credit available to Borrower including, without limitation, under this Loan,
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.


 


58

















 


(b)           Total Liabilities.  The Borrower shall not permit its Total
Liabilities to exceed $240,000,000 at any time, as calculated at the end of
each fiscal quarter.


 


(c)           Dividends and Other Restricted
Payments.  The Borrower shall not
declare or make, or incur any liability to make, any Restricted Payments at any
time.  If a Default or an Event of
Default shall exist, no Subsidiary (other than Wholly Owned Subsidiaries) shall
directly or indirectly declare or make, or incur any liability to make, any
Restricted Payments without the written consent of the Administrative Agent.


 


(d)           Indebtedness of Certain
Subsidiaries.  Without the prior
written consent of the Administrative Agent, the Borrower shall not permit any
Subsidiary (other than a Wholly Owned Subsidiary) to create, assume, incur,
permit or suffer to exist any Liabilities, except for Liabilities in existence
on the Effective Date and disclosed in the financial statements delivered to
the Administrative Agent by the Borrower prior to the Effective Date.


 


Section 9.2.  Negative Pledge.


 


The
Borrower shall not, and shall not permit any other Loan Party or Subsidiary to,
(a) create, assume, incur, permit or suffer to exist any Lien on the
Property or any direct or indirect ownership interest of the Borrower in any
Person owning the Property, now owned or hereafter acquired, except for
Permitted Liens, (b) permit the Property or any direct or indirect
ownership interest of the Borrower or in any Person owning a Property, to be
subject to a Negative Pledge or (c) create, assume, incur, permit or
suffer to exist any Lien on other Collateral, or any direct or indirect
ownership interest of the Borrower in any Person owning any Collateral, except
for Permitted Liens.


 


Section 9.3.  Restrictions on Intercompany Transfers.


 


The
Borrower shall not, and shall not permit any other Loan Party or any other
Subsidiary to, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to: (a) pay dividends or make any other distribution on any of
such Subsidiary’s capital stock or other equity interests owned by the Borrower
or any other Subsidiary; (b) pay any Indebtedness owed to the Borrower or
any other Subsidiary; (c) make loans or advances to the Borrower or any
other Subsidiary; or (d) transfer any of its property or assets to the
Borrower or any other Subsidiary; other than (i) with respect to clauses (a) –
(d) those encumbrances or restrictions contained in  any Loan Document or, (ii) with respect
to clause (d), customary provisions restricting assignment of any agreement
entered into by the Borrower, any other Loan Party or any Subsidiary in the
ordinary course of business.


 


Section 9.4.  Merger, Consolidation, Sales of Assets and
Other Arrangements.


 


The Borrower shall not, and shall not permit
any other Loan Party or any other Subsidiary to, (a) enter into any
transaction of merger or consolidation; (b) liquidate, windup or dissolve
itself (or suffer any liquidation or dissolution); (c) convey, sell, lease,
sublease, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any substantial part of its business or assets, or the
capital stock of or other Equity Interests in any of its Subsidiaries, whether
now owned or hereafter acquired; or (d) acquire all or any material portion of
the assets of, or make an Investment in, any other Person; provided, however,
that, so long as, in each case immediately prior to the consummation of any of
the following, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence:


 


59

















 


(i)            any Subsidiary may
merge with a the Borrower or any Wholly Owned Subsidiary so long as the
Borrower or such Wholly Owned Subsidiary, as applicable, is the survivor;


 


(ii)           any Subsidiary may
sell, transfer or dispose of its assets to the Borrower or a Wholly Owned
Subsidiary;


 


(iii)          with the prior
written consent of Administrative Agent, any Loan Party (other than the
Borrower or the Leasehold Mortgagor) may convey, sell, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any
substantial part of its business or assets, or the capital stock of or other
Equity Interests in any of its Subsidiaries, and immediately thereafter
liquidate, provided that immediately prior to any such conveyance, sale,
transfer, disposition or liquidation and immediately thereafter and after
giving effect thereto, no Default or Event of Default is or would be in
existence;


 


(iv)          with
the prior written consent of the Administrative Agent, any Loan Party and any
other Subsidiary may, directly or indirectly, (A) acquire (whether by
purchase, acquisition of Equity Interests of a Person, or as a result of a
merger or consolidation) the assets of, or make an Investment in, any other
Person and (B) sell, lease or otherwise transfer, whether by one or a
series of transactions, assets (including capital stock or other securities of
Subsidiaries) to any other Person, so long as, in each case;


 


(v)           the Loan Parties and the other Subsidiaries may lease and
sublease their respective assets, as lessor or sublessor (as the case may be),
in the ordinary course of their business or as otherwise permitted in Section 9.11.;


 


(vi)          the Borrower may (A) convey, sell, transfer, lease or
otherwise dispose of, in one transaction or a series of transactions (1) all
or any portion of  the assets of MPC, or (2) all
or any portion of the Equity Interests it holds in MPC, or (B) liquidate,
windup, dissolve or cease the operations of MPC; and


 


(vii)         Permitted Investments.


 


Section 9.5.  Plans.


 


The
Borrower shall not, and shall not permit any Subsidiary to, permit any of its
respective assets to become or be deemed to be “plan assets” within the meaning
of ERISA and the regulations promulgated thereunder for purposes of ERISA and
the Internal Revenue Code.


 


Section 9.6.  Fiscal Year.


 


The
Borrower shall not, and shall not permit any other Loan Party or other
Subsidiary to, change its fiscal year from that in effect as of the Agreement
Date.


 


Section 9.7.  Modifications of Organizational Documents and
Material Contracts.


 


The
Borrower shall not, and shall not permit any other Loan Party or other
Subsidiary to, amend, supplement, restate or otherwise modify its articles of
incorporation or by-laws  without the
prior written


 


60

















 


consent
of the Administrative Agent and the Requisite Lenders unless such amendment,
supplement, restatement or other modification is (a) in the case of the
Borrower, to increase the amount of shares
of beneficial interests authorized to be issued by the Borrower, or to
authorize the issuance of a class of Preferred Stock by the Borrower, or (b) required
under or as a result of the Internal Revenue Code or other Applicable Law.  The Borrower shall not enter into, and shall
not permit any Subsidiary or other Loan Party to enter into, any amendment or
modification to any Material Contract which could reasonably be expected to
have a Material Adverse Effect or default in the performance of any obligations
of any Loan Party or other Subsidiary in any Material Contract or permit any
Material Contract to be canceled or terminated prior to its stated maturity.


 


Section 9.8.  Subordinated Debt Prepayments; Amendments.


 


The
Borrower shall not, and shall not permit any other Loan Party or other
Subsidiary to, prepay any principal of, or accrued interest on, any
Subordinated Debt or otherwise make any voluntary or optional payment with
respect to any principal of, or accrued interest on, any Subordinated Debt
prior to the originally scheduled maturity date thereof or otherwise redeem or
acquire for value any Subordinated Debt. 
Further, the Borrower shall not, and shall not permit any other Loan
Party or other Subsidiary to, amend or modify, or permit the amendment or
modification of, any agreement or instrument evidencing any Subordinated Debt
where such amendment or modification provides for the following or which has
any of the following effects:


 


(a)           increases the rate of interest
accruing on such Subordinated Debt;


 


(b)           increases the amount of any scheduled
installment of principal or interest, or shortens the date on which any such
installment or principal or interest becomes due;


 


(c)           shortens the final maturity date of
such Subordinated Debt;


 


(d)           increases the principal amount of
such Subordinated Debt;


 


(e)           amends any financial or other
covenant contained in any document or instrument evidencing any Subordinated
Debt in a manner which is more onerous to the Borrower or such Subsidiary or
which requires the Borrower or such Subsidiary to improve its financial
performance;


 


(f)            provides for the payment of
additional fees or the increase in existing fees; and/or


 


(g)           otherwise could reasonably be
expected to be adverse to the interests of the Administrative Agent or the
Lenders.


 


Section 9.9.  Transactions with Affiliates.


 


The
Borrower shall not permit to exist or enter into, and will not permit any Loan
Party or other Subsidiary to permit to exist or enter into, any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate of any Loan Party or any
Subsidiary, except (a) as set forth on Schedule 6.1.(r) or (b) transactions
in the ordinary course of and pursuant to the reasonable requirements of the
business of the Borrower, any of its Subsidiaries, or any Loan Party and upon
fair and reasonable terms which are no less favorable to the Borrower, such
Subsidiary, or any Loan Party than would be obtained in a comparable arm’s
length transaction with a Person that is not an Affiliate.  Notwithstanding the forgoing, no payments may
be made with respect to any items set forth on such Schedule 6.1.(r) if a
Default or Event of Default exists or would result therefrom.


 


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Section 9.10.  Environmental Matters.


 


The
Borrower shall not, and shall not permit any other Loan Party or other
Subsidiary or any other Person to, use, generate, discharge, emit, manufacture,
handle, process, store, release, transport, remove, dispose of or clean up any
Hazardous Materials on, under or from the Property in material violation of any
Hazardous Materials Law or in a manner that could reasonably be expected to
lead to any Hazardous Materials Claim. 
Nothing in this Section shall impose any obligation or liability
whatsoever on the Administrative Agent or any Lender.


 


Section 9.11.  Leases.


 


Borrower
shall use its commercially reasonable efforts to maintain all leasable
commercial space on the Property leased at no less than fair market rental
rates, except for space utilized by the Borrower and its Affiliates; provided,
however, that Borrower shall have fifteen (15) days after written notice from
Administrative Agent to cure any default under this section (i.e., to commence
commercially reasonable efforts to lease space and/or unwind or amend the terms
of any lease to provide for fair market rental rates).  All leases (and lease terminations, modifications
or amendments) of all or any material portion of the Property (each, a “Major
Lease”) shall:  (a) be for not less
than fair market rental rates; and (b) include estoppel, subordination,
attornment and mortgagee protection provisions satisfactory to Administrative
Agent (any such Major Lease which complies with the foregoing clauses (a) and
(b), and each other lease (and lease termination, modification or amendment) of
the Property which is not a Major Lease, is herein referred to as a “Permitted
Lease”; provided, however, that Borrower shall have fifteen (15) days after
written notice from Administrative Agent to cure any default under this section
(i.e., to unwind or amend the terms of any Major Lease to provide for fair
market rental rates and/or estoppel, subordination, attornment and mortgagee
protection provisions satisfactory to Administrative Agent).


 


Section 9.12.  Derivatives Contracts.


 


The
Borrower shall not, and shall not permit any other Loan Party or other
Subsidiary to enter into or become obligated in respect of, Derivatives
Contracts, other than (a) Specified Derivatives Contracts and (b) Derivatives
Contracts entered into by the Borrower, Loan Party or such Subsidiary in the
ordinary course of business and which establish an effective hedge in respect
of liabilities, commitments or assets held or reasonably anticipated by the
Borrower, a Loan Party or other Subsidiary.


 


ARTICLE
X. DEFAULT


 


Section 10.1.  Events of Default.


 


Each
of the following shall constitute an Event of Default, whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of Applicable Law or pursuant to any judgment or order of any
Governmental Authority:


 


(a)           Default in Payment.  The Borrower shall fail to pay when due under
this Agreement or any other Loan Document (whether upon demand, at maturity, by
reason of acceleration or otherwise) the principal of, or any interest on, any
of the Loans, or shall fail to pay any of the other payment Obligations owing by
the Borrower under this Agreement, any other Loan Document or the Fee Letter,
or any other Loan Party shall fail to pay when due any payment obligation owing
by such Loan Party under any Loan Document to which it is a party.


 


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(b)           Default in Performance.


 


(i)            Any Loan Party
shall fail to perform or observe any term, covenant, condition or agreement on
its part to be performed or observed and contained in Article VIII. or Article IX.;
or


 


(ii)           Any Loan Party
shall fail to perform or observe any term, covenant, condition or agreement
contained in this Agreement or any other Loan Document to which it is a party
and not otherwise mentioned in this Section and such failure shall
continue for a period of thirty (30)  calendar days
after the earlier of (x) the date upon which any Loan Party obtains
knowledge of such failure or (y) the date upon which the Borrower has
received written notice of such failure from the Administrative Agent.


 


(c)           Misrepresentations.  Any written statement, representation or
warranty made or deemed made by or on behalf of any Loan Party under this
Agreement or under any other Loan Document, or any amendment hereto or thereto,
or in any other writing or statement at any time furnished by any Loan Party to
the Administrative Agent, the Issuing Bank or any Lender, shall at any time
prove to have been incorrect or misleading in any material respect when
furnished or made or deemed made.


 


(d)           Indebtedness Cross- Default.


 


(i)            The Borrower,
any other Loan Party or any other Subsidiary of the Borrower shall fail to make
any payment when due and payable in respect of any Indebtedness (other than the
Loans) having an aggregate outstanding principal amount (or, in the case of any
Derivatives Contract, having, without regard to the effect of any close-out
netting provision, a Derivatives Termination Value) of $5,000,000 or more (“Material
Indebtedness”); or


 


(ii)           (x) The
maturity of any Material Indebtedness shall have been accelerated in accordance
with the provisions of any indenture, contract or instrument evidencing,
providing for the creation of or otherwise concerning such Material
Indebtedness or (y) any Material Indebtedness shall have been required to
be prepaid or repurchased prior to the stated maturity thereof; or


 


(iii)          Any other event
shall have occurred and be continuing which, with or without the passage of
time, the giving of notice, or otherwise, would permit any holder or holders of
any Material Indebtedness, any trustee or agent acting on behalf of such holder
or holders or any other Person, to accelerate the maturity of any Material
Indebtedness or require any Material Indebtedness to be prepaid or repurchased
prior to its stated maturity; or


 


(iv)          There occurs an
“Event of Default” under and as defined in any Specified Derivatives Contract
as to which the Borrower, any Loan Party or any other Subsidiary of Borrower is
a “Defaulting Party” (as defined therein), or there occurs an “Early
Termination Date” (as defined therein) in respect of any Specified Derivatives
Contract as a result of a “Termination Event” (as defined therein) as to which
the Borrower or any of its Subsidiaries is an “Affected Party” (as defined
therein).


 


(e)           Voluntary Bankruptcy
Proceeding.  Except as
permitted by Section 9.4(vi), the Borrower, any other Loan Party or any
other Subsidiary of Borrower shall:  (i) commence
a voluntary case under the Bankruptcy Code or other federal bankruptcy laws (as
now or hereafter in effect); (ii) file a petition seeking to take
advantage of any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts; (iii) consent to, or fail to contest in a timely and
appropriate manner, any petition filed against it in an involuntary case under
such


 


63

















 


bankruptcy
laws or other Applicable Laws or consent to any proceeding or action described
in the immediately following subsection (f); (iv) apply for or consent to,
or fail to contest in a timely and appropriate manner, the appointment of, or
the taking of possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or foreign; (v) admit
in writing its inability to pay its debts as they become due; (vi) make a
general assignment for the benefit of creditors; (vii) make a conveyance
fraudulent as to creditors under any Applicable Law; or (viii) take any
corporate or partnership action for the purpose of effecting any of the
foregoing.


 


(f)            Involuntary Bankruptcy
Proceeding.  Except as
permitted by Section 9.4(vi), a case or other proceeding shall be
commenced against the Borrower, any other Loan Party or any other Subsidiary of
Borrower in any court of competent jurisdiction seeking:  (i) relief under the Bankruptcy Code or
other federal bankruptcy laws (as now or hereafter in effect) or under any
other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of such
Person, or of all or any substantial part of the assets, domestic or foreign,
of such Person, and in the case of either clause (i) or (ii) such
case or proceeding shall continue undismissed or unstayed for a period of sixty
(60) consecutive calendar days, or an order granting the relief requested in
such case or proceeding (including, but not limited to, an order for relief
under such Bankruptcy Code or such other federal bankruptcy laws) shall be
entered.


 


(g)           Revocation of Loan Documents.  Any Loan Party shall (or shall attempt to)
disavow, revoke or terminate any Loan Document to which it is a party or the
Fee Letter or shall otherwise challenge or contest in any action, suit or
proceeding in any court or before any Governmental Authority the validity or
enforceability of any Loan Document or the Fee Letter.


 


(h)           Judgment.   A judgment or order for the payment of money
shall be entered against the Borrower, any other Loan Party, or any other
Subsidiary of Borrower by any court or other tribunal and (i) such
judgment or order shall continue for a period of twenty (20) days without being
paid, stayed or dismissed through appropriate appellate proceedings and (ii) either
(A) the amount for which insurance has not been acknowledged in writing by
the applicable insurance carrier (or the amount as to which the insurer has
denied liability) exceeds, individually or together with all other such
judgments or orders entered against the Borrower, Loan Parties and the other
Subsidiaries of Borrower, $100,000 or (B) such judgment or order could
reasonably be expected to have a Material Adverse Effect.


 


(i)            Attachment.  A warrant, writ of attachment, execution or
similar process shall be issued against any property of the Borrower, any other
Loan Party or any other Subsidiary of Borrower, which exceeds, individually or
together with all other such warrants, writs, executions and processes,
$100,000 in amount and such warrant, writ, execution or process shall not be
paid, discharged, vacated, stayed or bonded for a period of twenty (20) days;
provided, however, that if a bond has been issued in favor of the claimant or
other Person obtaining such warrant, writ, execution or process, the issuer of
such bond shall execute a waiver or subordination agreement in form and
substance satisfactory to the Administrative Agent pursuant to which the issuer
of such bond subordinates its right of reimbursement, contribution or subrogation
to the Obligations and waives or subordinates any Lien it may have on the
assets of the Borrower or any Subsidiary.


 


(j)            ERISA.  Any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess of $500,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing;
or the PBGC shall institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer


 


64

















 


any
Material Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with
respect to, one or more Multiemployer Plans which could cause one or more
members of the ERISA Group to incur withdrawal liability or a current payment
obligation in excess of $500,000.


 


(k)           Loan Documents.  An Event of Default (as defined therein)
shall occur under any of the other Loan Documents;


 


(l)            Change of Control/Change in Management.


 


(i)            Any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), is or becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a Person will be deemed to have “beneficial
ownership” of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the total voting power of the then
outstanding voting stock of the Borrower; provided, however, that the foregoing
shall not apply to (A) the ownership of Borrower’s outstanding voting
stock by Steve Case regardless of the amount of his beneficial ownership (or
the beneficial ownership of any of his affiliates) from and after the Effective
Date, and (B) the acquisition of securities that occurs as a result of a
public offering of the Borrower’s securities or any financing transaction or
series of financing transactions;


 


(ii)           During any
period of 12 consecutive months ending after the Agreement Date, individuals
who at the beginning of any such 12-month period constituted the Board of Directors
of the Borrower (together with any new directors whose election by such Board
or whose nomination for election by the shareholders of the Borrower was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Borrower then in office;
or


 


(iii)          If Warren
Haruki or John Durkin cease for any reason to be principally involved in the
senior management of the Borrower, and the Borrower shall have failed to
replace the resulting vacancies in senior management with individuals
reasonably acceptable to the Requisite Lenders  within
a period of 90 days.


 


(m)          Damage; Strike; Casualty.  Any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike, lockout,
labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than thirty (30) consecutive days beyond the
coverage period of any applicable business interruption insurance, the
cessation or substantial curtailment of revenue producing activities of the
Borrower, any other Loan Party, or any other Subsidiary of Borrower taken as a
whole and only if any such event or circumstance could reasonably be expected
to have a Material Adverse Effect.


 


(n)           Subordinated Debt Documents.  The failure of any Loan Party to comply with
the terms of any intercreditor agreement or any subordination provisions of any
note or other document running to the benefit of the Administrative Agent or
Lenders, or if any such document becomes null and void or unenforceable against
any lender holding the Subordinated Debt.


 


(o)           Security Documents.  Any provision of any Security Document shall
for any reason cease to be valid and binding on, enforceable against, any Loan
Party or any Lien created under any Security Document ceases to be a valid,
perfected first priority Lien in any of the Collateral purported to be covered
thereby.


 


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(p)           Hazardous
Materials. 
The discovery of any significant Hazardous Materials in, on or about the
Property subsequent to the Effective Date. 
Any such Hazardous Materials shall be “significant” for this purpose if
said Hazardous Materials, in Administrative Agent’s reasonable discretion,
constitute a Materially Adverse Effect.


 


(q)           Property
-  Liens; Condemnation; Attachment.   (i) The recording of any claim of Lien
(other than a Permitted Lien) against the Property and the continuance of such
claim of Lien for twenty (20) days without discharge, satisfaction or provision
for payment being made by Borrower in a manner satisfactory to Administrative
Agent; or (ii) the condemnation, seizure or appropriation of, or
occurrence of an uninsured casualty with respect to any material portion of the
Property; or (iii) the sequestration or attachment of, or any levy or
execution upon any of the Property, any other collateral provided by Borrower
under any of the Loan Documents or any substantial portion of the other assets
of Borrower, which sequestration, attachment, levy or execution is not
released, expunged or dismissed prior to the earlier of thirty (30) days or the
sale of the assets affected thereby; or


 


Section 10.2.  Remedies Upon Event of Default.


 


Upon the occurrence of an Event of Default the
following provisions shall apply:


 


(a)           Acceleration; Termination of Facilities.


 


(i)            Automatic.  Upon the occurrence of an Event of Default
specified in Sections 10.1.(e) or 10.1.(f), (1)(A) the principal of,
and all accrued interest on, the Loans and the Notes at the time outstanding, (B) an
amount equal to the Stated Amount of all Letters of Credit outstanding as of the
date of the occurrence of such Event of Default and (C) all of the other
Obligations of the Borrower, including, but not limited to, the other amounts
owed to the Lenders and the Administrative Agent under this Agreement, the
Notes or any of the other Loan Documents shall become immediately and
automatically due and payable by the Borrower without presentment, demand,
protest, or other notice of any kind, all of which are expressly waived by the
Borrower, and (2) the Commitments and the Swingline Commitment, the
obligation of the Lenders to make Loans hereunder, and the obligation of the
Issuing Bank to issue Letters of Credit hereunder, shall all immediately and
automatically terminate.


 


(ii)           Optional.  If any other Event of Default shall exist,
the Administrative Agent may, and at the direction of the Requisite Lenders
shall:  (1) declare (A) the
principal of, and accrued interest on, the Loans and the Notes at the time
outstanding, (B) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of such Event of Default
and (C) all of the other Obligations, including, but not limited to, the
other amounts owed to the Lenders and the Administrative Agent under this
Agreement, the Notes or any of the other Loan Documents to be forthwith due and
payable, whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower, and (2) terminate the Commitments and
the obligation of the Lenders to make Loans hereunder and the obligation of the
Issuing Bank to issue Letters of Credit hereunder.  If the Administrative Agent has exercised any
of the rights provided under the preceding sentence, the Swingline Lender shall:  (x) declare the principal of, and
accrued interest on, the Swingline Loans and the Swingline Notes at the time
outstanding, and all of the other Obligations owing to the Swingline Lender, to
be forthwith due and payable, whereupon the same shall immediately become due
and payable without presentment, demand,


 


66

















 


protest
or other notice of any kind, all of which are expressly waived by the Borrower
and (y) terminate the Swingline Commitment and the obligation of the
Swingline Lender to make Swingline Loans.


 


(b)           Loan Documents.  The Requisite Lenders may direct the
Administrative Agent to, and the Administrative Agent if so directed shall,
exercise any and all of its rights under any and all of the other Loan
Documents.


 


(c)           Applicable Law.  The Requisite Lenders may direct the
Administrative Agent to, and the Administrative Agent if so directed shall,
exercise all other rights and remedies it may have under any Applicable Law.


 


(d)           Appointment of Receiver.  To the extent permitted by Applicable Law,
the Administrative Agent and the Lenders shall be entitled to the appointment
of a receiver for the assets and properties of the Borrower and its
Subsidiaries, without notice of any kind whatsoever and without regard to the
adequacy of any security for the Obligations or the solvency of any party bound
for its payment, to take possession of all or any portion of the Collateral, the
property and/or the business operations of the Borrower and its Subsidiaries
and to exercise such power as the court shall confer upon such receiver.


 


(e)           Specified Derivatives
Contract Remedies. 
Notwithstanding any other provision of this Agreement or other Loan
Document, each Specified Derivatives Provider shall have the right, with the
prompt notice to the Administrative Agent, but without the approval or consent
of or other action by the Administrative Agent or the Lenders, and without
limitation of other remedies available to such Specified Derivatives Provider
under contract or Applicable Law, to undertake any of the following:  (a) to declare an event of default,
termination event or other similar event under any Specified Derivatives
Contract and to create an “Early Termination Date” (as defined therein) in
respect thereof, (b) to determine net termination amounts in respect of
any and all Specified Derivatives Contracts in accordance with the terms
thereof, and to set off amounts among such contracts, (c) to set off or
proceed against deposit account balances, securities account balances and other
property and amounts held by such Specified Derivatives Provider pursuant to
any Derivatives Support Document, including any “Posted Collateral” (as defined
in any credit support annex including in any such Derivatives Support Document to
which such Specified Derivatives Provider may be a party), and (d) to
prosecute any legal action against the Borrower, any Loan Party or other
Subsidiary to enforce or collect net amounts owing to such Specified
Derivatives Provider pursuant to any Specified Derivatives Contract.


 


Section 10.3.  Remedies Upon Default.


 


Upon
the occurrence of a Default specified in Section 10.1.(f), the Commitments
shall immediately and automatically terminate.


 


Section 10.4.  Marshaling; Payments Set Aside.


 


None
of the Administrative Agent, the Issuing Bank, any Lender or any Specified
Derivatives Provider shall be under any obligation to marshal any assets in
favor of any Loan Party or any other party or against or in payment of any or
all of the Obligations or the Specified Derivatives Obligations.  To the extent that any Loan Party makes a
payment or payments to the Administrative Agent and/or the Issuing Bank and/or
any Lender and/or any Specified Derivatives Provider, or the Administrative
Agent and/or the Issuing Bank and/or any Lender and/or any Specified
Derivatives Provider enforce their security interests or exercise their rights
of setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any


 


67

















 


bankruptcy
law, state or federal law, common law or equitable cause, then to the extent of
such recovery, the Obligations or Specified Derivatives Obligations, or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.


 


Section 10.5.  Allocation of Proceeds.


 


If
an Event of Default exists and maturity of any of the Obligations has been
accelerated or the Maturity Date has occurred, all payments received by the
Administrative Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the
Borrower hereunder or thereunder, shall be applied in the following order and
priority:


 


(a)           amounts due to
the Administrative Agent, the Issuing Bank and the Lenders in respect of
expenses due under Section 12.2. until paid in full, and then Fees;


 


(b)           amounts due to
the Administrative Agent and the Lenders in respect of Protective Advances;


 


(c)           payments of
interest on Swingline Loans;


 


(d)           payments of
interest (i) on all other Loans and (ii) in respect of any Specified
Derivatives Contract, in each case, to be applied for the ratable benefit of
the Lenders or the applicable Specified Derivatives Providers, in such order as
the Lenders or Specified Derivatives Providers, as the case may be, may
determine in their sole discretion;


 


(e)           payments of
principal on Swingline Loans;


 


(f)            payments of
principal of all other Loans and payments of the Derivatives Termination Value
in respect of any and all Specified Derivatives Contracts, to be applied for
the ratable benefit of the Lenders or Specified Derivatives Providers, as the
case may be, in such order as the Lenders or Specified Derivatives Providers,
as the case may be, may determine in their sole discretion;


 


(g)           amounts to be
deposited into the Letter of Credit Collateral Account in respect of Letters of
Credit;


 


(h)           amounts due to
the Administrative Agent and the Lenders pursuant to Sections 11.8. and
12.10.;


 


(i)            payments of all
other amounts due under any of the Loan Documents and Specified Derivatives
Contracts, if any, to be applied for the ratable benefit of the Lenders and the
applicable Specified Derivatives Providers; and


 


(j)            any amount remaining
after application as provided above, shall be paid to the Borrower or whomever
else may be legally entitled thereto.


 


Section 10.6.  Letter of Credit Collateral Account.


 


(a)           As collateral security for
the prompt payment in full when due of all Letter of Credit Liabilities, the
Borrower hereby pledges and grants to the Administrative Agent, for the benefit
of the Administrative Agent, the Issuing Bank and the Lenders as provided
herein, a security interest in all of its


 


68

















 


right,
title and interest in and to the Letter of Credit Collateral Account
established pursuant to the requirements of Section 2.13. and the balances
from time to time in the Letter of Credit Collateral Account (including the investments
and reinvestments therein provided for below). 
The balances from time to time in the Letter of Credit Collateral
Account shall not constitute payment of any Letter of Credit Liabilities until
applied by the Administrative Agent as provided herein.  Anything in this Agreement to the contrary
notwithstanding, funds held in the Letter of Credit Collateral Account shall be
subject to withdrawal only as provided in this Section and in Section 2.13.


 


(b)           Amounts on deposit in the
Letter of Credit Collateral Account shall be invested and reinvested by the
Administrative Agent in such Cash Equivalents as the Administrative Agent shall
determine in its sole discretion.  All
such investments and reinvestments shall be under the sole dominion and control
of the Administrative Agent, provided, that all earnings on such
investments will be credited to and retained in the Letter of Credit Collateral
Account.  The Administrative Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Letter of Credit Collateral Account and shall be deemed to have exercised
such care if such funds are accorded treatment substantially equivalent to that
which the Administrative Agent accords other funds deposited with the
Administrative Agent, it being understood that the Administrative Agent shall
not have any responsibility for taking any necessary steps to preserve rights
against any parties with respect to any funds held in the Letter of Credit
Collateral Account.


 


(c)           If an Event of Default exists,
the Administrative Agent may (and, if instructed by the Requisite Lenders,
shall) in its (or their) discretion at any time and from time to time elect to
liquidate any such investments and reinvestments and credit the proceeds
thereof to the Letter of Credit Collateral Account and apply or cause to be
applied such proceeds and any other balances in the Letter of Credit Collateral
Account to the payment of any of the Letter of Credit Liabilities due and
payable.


 


(d)           So long as no Default or
Event of Default exists, the Administrative Agent shall, from time to time, at
the request of the Borrower, deliver to the Borrower, against receipt but
without any recourse, warranty or representation whatsoever, such of the
balances in the Letter of Credit Collateral Account as exceed the aggregate
amount of Letter of Credit Liabilities at such time.  When all of the Obligations shall have been
indefeasibly paid in full and no Letters of Credit remain outstanding, the
Administrative Agent shall deliver to the Borrower, against receipt but without
any recourse, warranty or representation whatsoever, the balances remaining in
the Letter of Credit Collateral Account.


 


(e)           The Borrower shall pay to
the Administrative Agent from time to time such fees as the Administrative
Agent normally charges for similar services in connection with the
Administrative Agent’s administration of the Letter of Credit Collateral
Account and investments and reinvestments of funds therein.


 


Section 10.7.  Rescission
of Acceleration by Requisite Lenders.


 


If
at any time after acceleration of the maturity of the Loans and the other
Obligations, the Borrower shall pay all arrears of interest and all payments on
account of principal of the Obligations which shall have become due otherwise
than by acceleration (with interest on principal and, to the extent permitted
by Applicable Law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Defaults (other than nonpayment of
principal of and accrued interest on the Obligations due and payable solely by
virtue of acceleration) shall become remedied or waived to the satisfaction of
the Requisite Lenders, then by written notice to the Borrower, the Requisite
Lenders may elect, in the sole discretion of such Requisite Lenders, to rescind
and annul the acceleration and its consequences.  The provisions of the preceding sentence are
intended merely to bind all of the Lenders to a decision which may be made at
the election of the Requisite Lenders, and are not intended to benefit the
Borrower and do not give the Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are satisfied.


 


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Section 10.8.  Performance by Administrative Agent.


 


If
the Borrower shall fail to perform any covenant, duty or agreement contained in
any of the Loan Documents, the Administrative Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein.  In such event, the Borrower shall, at the
request of the Administrative Agent, promptly pay any amount reasonably expended
by the Administrative Agent in such performance or attempted performance to the
Administrative Agent, together with interest thereon at the applicable
Post-Default Rate from the date of such expenditure until paid.  Notwithstanding the foregoing, neither the
Administrative Agent nor any Lender shall have any liability or responsibility
whatsoever for the performance of any obligation of the Borrower under this
Agreement or any other Loan Document.


 


Section 10.9.  Rights Cumulative.


 


The
rights and remedies of the Administrative Agent, the Issuing Bank, the Lenders
and the Specified Derivatives Providers under this Agreement, each of the other
Loan Documents, the Fee Letter and Specified Derivatives Contracts shall be
cumulative and not exclusive of any rights or remedies which any of them may otherwise
have under Applicable Law.  In exercising
their respective rights and remedies the Administrative Agent, the Issuing
Bank, the Lenders and the Specified Derivatives Providers may be selective and
no failure or delay by the Administrative Agent, the Issuing Bank, any of the
Lenders or any of the Specified Derivatives Providers in exercising any right
shall operate as a waiver of it, nor shall any single or partial exercise of
any power or right preclude its other or further exercise or the exercise of
any other power or right.


 


ARTICLE
XI. THE ADMINISTRATIVE AGENT


 


Section 11.1.  Appointment and Authorization.


 


Each
Lender hereby irrevocably appoints and authorizes the Administrative Agent to
take such action as contractual representative on such Lender’s behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. Not in
limitation of the foregoing, each Lender authorizes and directs the
Administrative Agent to enter into the Loan Documents for the benefit of the
Lenders.  Each Lender hereby agrees that,
except as otherwise set forth herein, any action taken by the Requisite Lenders
in accordance with the provisions of this Agreement or the Loan Documents, and
the exercise by the Requisite Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all of the Lenders.  Nothing herein shall be construed to deem the
Administrative Agent a trustee or fiduciary for any Lender or to impose on the
Administrative Agent duties or obligations other than those expressly provided
for herein.  Without limiting the
generality of the foregoing, the use of the terms “Agent”, “Administrative
Agent”, “agent” and similar terms in the Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any Applicable
Law.  Instead, use of such terms is
merely a matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.  The Administrative Agent shall deliver to
each Lender, promptly upon receipt thereof by the Administrative Agent, copies
of each of the financial statements, certificates, notices and other documents
delivered to the Administrative Agent pursuant to Article VIII. that the
Borrower is not otherwise required to deliver directly to the Lenders.  The Administrative Agent will


 


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furnish
to any Lender, upon the request of such Lender, a copy (or, where appropriate,
an original) of any document, instrument, agreement, certificate or notice
furnished to the Administrative Agent by the Borrower, any Loan Party or any
other Affiliate of the Borrower, pursuant to this Agreement or any other Loan
Document not already delivered to such Lender pursuant to the terms of this
Agreement or any such other Loan Document. 
As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of any of the
Obligations), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Requisite Lenders (or all of the Lenders if
explicitly required under any other provision of this Agreement), and such
instructions shall be binding upon all Lenders and all holders of any of the
Obligations; provided, however, that, notwithstanding anything in this Agreement
to the contrary, the Administrative Agent shall not be required to take any
action which exposes the Administrative Agent to personal liability or which is
contrary to this Agreement or any other Loan Document or Applicable Law.  Not in limitation of the foregoing, the
Administrative Agent may exercise any right or remedy it or the Lenders may
have under any Loan Document upon the occurrence of a Default or an Event of
Default unless the Requisite Lenders have directed the Administrative Agent otherwise.  Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the
instructions of the Requisite Lenders, or where applicable, all the Lenders.


 


Section 11.2.  Wells Fargo as Lender.


 


Wells
Fargo, as a Lender or as a Specified Derivatives Provider, as the case may be,
shall have the same rights and powers under this Agreement and any other Loan
Document and under any Specified Derivatives Contract, as the case may be, as
any other Lender or Specified Derivatives Provider and may exercise the same as
though it were not the Administrative Agent; and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated, include Wells Fargo in each case
in its individual capacity.  Wells Fargo
and its affiliates may each accept deposits from, maintain deposits or credit
balances for, invest in, lend money to, act as trustee under indentures of,
serve as financial advisor to, and generally engage in any kind of business
with the Borrower, any other Loan Party or any other affiliate thereof as if it
were any other bank and without any duty to account therefor to the Issuing
Bank, other Lenders, or any other Specified Derivatives Providers.  Further, the Administrative Agent and any
affiliate may accept fees and other consideration from the Borrower for
services in connection with this Agreement or any Specified Derivatives
Contract, or otherwise without having to account for the same to the Issuing
Bank, the other Lenders or any other Specified Derivatives Providers.  The Issuing Bank and the Lenders acknowledge
that, pursuant to such activities, Wells Fargo or its affiliates may receive
information regarding the Borrower, other Loan Parties, other Subsidiaries and
other Affiliates (including information that may be subject to confidentiality
obligations in favor of such Person) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them.


 


Section 11.3.  Collateral Matters; Protective Advances.


 


(a)           Each Lender hereby authorizes the
Administrative Agent, without the necessity of any notice to or further consent
from any Lender, from time to time prior to an Event of Default, to take any action
with respect to any Collateral or Loan Documents which may be necessary to
perfect and maintain perfected the Liens upon the Collateral granted pursuant
to any of the Loan Documents.


 


(b)           The Lenders hereby authorize the
Administrative Agent, at its option and in its discretion, to release any Lien
granted to or held by the Administrative Agent upon any Collateral (i) upon
termination of the Commitments and indefeasible payment and satisfaction in
full of all of the Obligations


 


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and
Specified Derivatives Obligations; or (ii) as expressly permitted by, but
only in accordance with, the terms of the applicable Loan Document.  Upon request by the Administrative Agent at
any time, the Lenders will confirm in writing the Administrative Agent’s
authority to release particular types or items of Collateral pursuant to this
Section.


 


(c)           Upon any sale and transfer of
Collateral which is expressly permitted pursuant to the terms of this
Agreement, and upon at least five (5) Business Days’ prior written request
by the Borrower, the Administrative Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be necessary to
evidence the release of the Liens granted to the Administrative Agent for its
benefit and the benefit of the Lenders, the Issuing Bank and the Specified
Derivatives Providers herein or pursuant hereto upon the Collateral that was sold
or transferred; provided, however, that (i) the
Administrative Agent shall not be required to execute any such document on
terms which, in the Administrative Agent’s opinion, would expose the
Administrative Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without recourse or warranty
and (ii) such release shall not in any manner discharge, affect or impair
the Obligations or Specified Derivatives Obligations or any Liens upon (or
obligations of the Borrower or any other Loan Party in respect of) all
interests retained by the Borrower or any other Loan Party, including (without
limitation) the proceeds of such sale or transfer, all of which shall continue
to constitute part of the Collateral.  In
the event of any sale or transfer of Collateral, or any foreclosure with
respect to any of the Collateral, the Administrative Agent shall be authorized
to deduct all of the expenses reasonably incurred by the Administrative Agent
from the proceeds of any such sale, transfer or foreclosure.


 


(d)           The Administrative Agent shall have
no obligation whatsoever to the Lenders, the Issuing Bank or the Specified
Derivatives Providers or to any other Person to assure that the Collateral
exists or is owned by the Borrower, any other Loan Party or any other
Subsidiary or is cared for, protected or insured or that the Liens granted to
the Administrative Agent herein or pursuant hereto have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to continue exercising
at all or in any manner or under any duty of care, disclosure or fidelity any
of the rights, authorities and powers granted or available to the
Administrative Agent in this Section or in any of the Loan Documents, it
being understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, the Administrative Agent may act in any
manner it may deem appropriate, in its sole discretion, and that the
Administrative Agent shall have no duty or liability whatsoever to the Lenders,
even if resulting from the negligence of Administrative Agent (but except to
the extent resulting from its gross negligence or willful misconduct).


 


(e)           The Administrative Agent may make,
and shall be reimbursed by the Lenders (in accordance with their Pro Rata
Shares) to the extent not reimbursed by the Borrower for, Protective Advances
during any one calendar year with respect to the Property up to the sum of (i) amounts
expended to pay real estate taxes, assessments and governmental charges or
levies imposed upon the Property; (ii) amounts expended to pay insurance
premiums for policies of insurance related to the Property; and (iii) $250,000.   Protective Advances in excess of said sum
during any calendar year for the Property that is Collateral shall require the
consent of the Requisite Lenders.  The
Borrower agrees to pay on demand all Protective Advances.


 


(f)            By their acceptance of the benefits
of the Security Documents, each Lender that is at any time itself a Specified
Derivatives Provider, or having an Affiliate that is a Specified Derivatives
Provider, hereby, for itself, and on behalf of any such Affiliate, in its
capacity as a Specified Derivatives Provider, irrevocably appoints and
authorizes the Administrative Agent as its collateral agent, to take such
action as contractual representative on such Specified Derivative’s Provider’s
behalf and to exercise such powers under the Security Documents as are specifically
delegated to the Administrative Agent by the terms of this Section 11.3., Section 11.4.
and any Security Document, together with such powers as are


 


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reasonably
incidental thereto; provided, that this subsection (f) shall not affect
any of the terms of a Specified Derivatives Contract or restrict a Specified
Derivatives Provider from taking any action permitted by a Specified
Derivatives Contract.  For the avoidance
of doubt, all references in this Section 11.3. to “Lender” or “Lenders”
shall be deemed to include each Lender (and Affiliate thereof) in its capacity
as a Specified Derivatives Provider.


 


Section 11.4.  Post-Foreclosure Plans.


 


If
all or any portion of the Collateral is acquired by the Administrative Agent as
a result of a foreclosure or the acceptance of a deed or assignment in lieu of
foreclosure, or is retained in satisfaction of all or any part of the
Obligations and/or Specified Derivatives Obligations, the title to any such
Collateral, or any portion thereof, shall be held in the name of the
Administrative Agent or a nominee or Subsidiary of the Administrative Agent, as
administrative agent, for the ratable benefit of all Lenders, the Issuing Bank
and the Specified Derivatives Providers. 
The Administrative Agent shall prepare a recommended course of action
for such Collateral (a “Post-Foreclosure Plan”), which shall be subject to the
approval of the Requisite Lenders.  In
accordance with the approved Post-Foreclosure Plan, the Administrative Agent
shall manage, operate, repair, administer, complete, construct, restore or
otherwise deal with the Collateral acquired, and shall administer all
transactions relating thereto, including, without limitation, employing a
management agent, leasing agent and other agents, contractors and employees,
including agents for the sale of such Collateral, and the collecting of rents
and other sums from such Collateral and paying the expenses of such
Collateral.  Actions taken by the
Administrative Agent with respect to the Collateral, which are not specifically
provided for in the approved Post-Foreclosure Plan or reasonably incidental
thereto, shall require the written consent of the Requisite Lenders by way of
supplement to such Post-Foreclosure Plan. 
Upon demand therefor from time to time, each Lender will contribute its
share (based on its Pro Rata Share) of all reasonable costs and expenses
incurred by the Administrative Agent pursuant to the approved Post-Foreclosure
Plan in connection with the construction, operation, management, maintenance,
leasing and sale of such Collateral.  In
addition, the Administrative Agent shall render or cause to be rendered to each
Lender, the Issuing Bank and each Specified Derivatives Provider, on a monthly
basis, an income and expense statement for such Collateral, and each Lender
shall promptly contribute its Pro Rata Share of any operating loss for such
Collateral, and such other expenses and operating reserves as the
Administrative Agent shall deem reasonably necessary pursuant to and in
accordance with the approved Post-Foreclosure Plan.  To the extent there is net operating income
from such Collateral, the Administrative Agent shall, in accordance with the
approved Post-Foreclosure Plan, determine the amount and timing of
distributions to the Lenders, the Issuing Bank and the Specified Derivatives
Providers.  All such distributions shall
be made to the Lenders in accordance with their respective Pro Rata Shares.  The Lenders, the Issuing Bank and the
Specified Derivatives Providers acknowledge and agree that if title to any
Collateral is obtained by the Administrative Agent or its nominee, such
Collateral will not be held as a permanent investment but will be liquidated
and the proceeds of such liquidation will be distributed in accordance with Section
10.5. as soon as practicable.  The
Administrative Agent shall undertake to sell such Collateral, at such price and
upon such terms and conditions as the Requisite Lenders reasonably shall
determine to be most advantageous to the Lenders, the Issuing Bank and the
Specified Derivatives Providers.  Any
purchase money mortgage or deed of trust taken in connection with the
disposition of such Collateral in accordance with the immediately preceding
sentence shall name the Administrative Agent, as agent for the Lenders, as the
beneficiary or mortgagee.  In such case,
the Administrative Agent and the Lenders shall enter into an agreement with
respect to such purchase money mortgage or deed of trust defining the rights of
the Lenders in the same Pro Rata Shares as provided hereunder, which agreement
shall be in all material respects similar to this Article insofar as the
same is appropriate or applicable.


 


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Section 11.5.  Approvals of Lenders.


 


All
communications from the Administrative Agent to any Lender requesting such
Lender’s determination, consent, approval or disapproval (a) shall be
given in the form of a written notice to such Lender, (b) shall be
accompanied by a description of the matter or issue as to which such
determination, approval, consent or disapproval is requested, or shall advise
such Lender where information, if any, regarding such matter or issue may be
inspected, or shall otherwise describe the matter or issue to be resolved, (c) shall
include, if reasonably requested by such Lender and to the extent not
previously provided to such Lender, written materials and a summary of all oral
information provided to the Administrative Agent by the Borrower in respect of
the matter or issue to be resolved, and (d) shall include the
Administrative Agent’s recommended course of action or determination in respect
thereof.  Unless a Lender shall give
written notice to the Administrative Agent that it specifically objects to the
recommendation or determination of the Administrative Agent (together with a
reasonable written explanation of the reasons behind such objection) within ten
(10) Business Days (or such lesser or greater period as may be
specifically required under the express terms of the Loan Documents) of receipt
of such communication, such Lender shall be deemed to have conclusively
approved of or consented to such recommendation or determination.


 


Section 11.6.  Notice of Events of Default.


 


The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Administrative Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing with reasonable specificity such Default or Event of Default and
stating that such notice is a “notice of default.”  If any Lender (excluding the Lender which is
also serving as the Administrative Agent) becomes aware of any Default or Event
of Default, it shall promptly send to the Administrative Agent such a “notice
of default”.  Further, if the
Administrative Agent receives such a “notice of default,” the Administrative
Agent shall give prompt notice thereof to the Lenders.


 


Section 11.7.  Administrative Agent’s Reliance.


 


Notwithstanding any other provisions of this Agreement
or any other Loan Documents, neither the Administrative Agent nor any of its
directors, officers, agents, employees or counsel shall be liable for any
action taken or not taken by it under or in connection with this Agreement or
any other Loan Document, even if arising from its or their own negligence (but
except for its or their own gross negligence or willful misconduct), in
connection with its duties expressly set forth herein or therein.  Without limiting the generality of the
foregoing, the Administrative Agent: may consult with legal counsel (including
its own counsel or counsel for the Borrower or any other Loan Party),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts.  Neither the Administrative Agent nor any of
its directors, officers, agents, employees or counsel: (a) makes any
warranty or representation to any Lender, the Issuing Bank or any other Person
and shall be responsible to any Lender, the Issuing Bank or any other Person
for any statement, warranty or representation made or deemed made by the
Borrower, any other Loan Party or any other Person in or in connection with
this Agreement or any other Loan Document; (b) shall have any duty to
ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement or any other Loan Document or
the satisfaction of any conditions precedent under this Agreement or any Loan
Document on the part of the Borrower or other Persons or inspect the property,
books or records of the Borrower or any other Person; (c) shall be
responsible to any Lender or the Issuing Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other Loan Document, any other instrument or document furnished pursuant


 


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thereto or any Collateral covered thereby or the perfection
or priority of any Lien in favor of the Administrative Agent on behalf of the
Lenders, the Issuing Bank and the Specified Derivatives Providers in any such
Collateral; (d) shall have any liability in respect of any recitals,
statements, certifications, representations or warranties contained in any of
the Loan Documents or any other document, instrument, agreement, certificate or
statement delivered in connection therewith; and (e) shall incur any liability
under or in respect of this Agreement or any other Loan Document by acting upon
any notice, consent, certificate or other instrument or writing (which may be
by telephone, telecopy or electronic mail) believed by it to be genuine and
signed, sent or given by the proper party or parties.  The Administrative Agent may execute any of
its duties under the Loan Documents by or through agents, employees or
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.


 


Section 11.8.  Indemnification of Administrative Agent.


 


Regardless
of whether the transactions contemplated by this Agreement and the other Loan
Documents are consummated, each Lender agrees to indemnify the Administrative
Agent (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) pro rata in accordance with such Lender’s
respective Pro Rata Share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any
time be imposed on, incurred by, or asserted against the Administrative Agent
(in its capacity as Administrative Agent but not as a “Lender”) in any way
relating to or arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Administrative Agent
under the Loan Documents including to the extent arising from the negligence of
the Administrative Agent (collectively, “Indemnifiable Amounts”); provided,
however, that no Lender shall be liable for any portion of such Indemnifiable
Amounts to the extent resulting from the Administrative Agent’s gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment; provided, however,
that no action taken in accordance with the directions of the Requisite Lenders
(or all of the Lenders, if expressly required hereunder) shall be deemed to
constitute gross negligence or willful misconduct for purposes of this
Section.  Without limiting the generality
of the foregoing, each Lender agrees to reimburse the Administrative Agent (to
the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so) promptly upon demand for its ratable share of any
out-of-pocket expenses (including the reasonable fees and expenses of the
counsel to the Administrative Agent) incurred by the Administrative Agent in
connection with the preparation, negotiation, execution, administration, or
enforcement (whether through negotiations, legal proceedings, or otherwise) of,
or legal advice with respect to the rights or responsibilities of the parties
under, the Loan Documents, any suit or action brought by the Administrative
Agent to enforce the terms of the Loan Documents and/or collect any
Obligations, any “lender liability” suit or claim brought against the
Administrative Agent and/or the Lenders, and any claim or suit brought against
the Administrative Agent and/or the Lenders arising under any Hazardous
Materials Laws.  Such out-of-pocket
expenses (including counsel fees) shall be advanced by the Lenders on the request
of the Administrative Agent notwithstanding any claim or assertion that the
Administrative Agent is not entitled to indemnification hereunder upon receipt
of an undertaking by the Administrative Agent that the Administrative Agent
will reimburse the Lenders if it is actually and finally determined by a court
of competent jurisdiction that the Administrative Agent is not so entitled to
indemnification.  The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder or
under the other Loan Documents and the termination of this Agreement.  If the Borrower shall reimburse the
Administrative Agent for any Indemnifiable Amount following payment by any
Lender to the Administrative Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Administrative Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.


 


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Section 11.9.  Lender Credit Decision, Etc.


 


Each
of the Lenders and the Issuing Bank expressly acknowledges and agrees that
neither the Administrative Agent nor any of its officers, directors, employees,
agents, counsel, attorneys-in-fact or other affiliates has made any
representations or warranties to the Issuing Bank or such Lender and that no
act by the Administrative Agent hereafter taken, including any review of the
affairs of the Borrower, any other Loan Party or any other Subsidiary or
Affiliate, shall be deemed to constitute any such representation or warranty by
the Administrative Agent to the Issuing Bank or any Lender.  Each of the Lenders and the Issuing Bank
acknowledges that it has, independently and without reliance upon the
Administrative Agent, any other Lender or counsel to the Administrative Agent,
or any of their respective officers, directors, employees, agents or counsel,
and based on the financial statements of the Borrower, the other Loan Parties,
the other Subsidiaries and other Affiliates, and inquiries of such Persons, its
independent due diligence of the business and affairs of the Borrower, the
other Loan Parties, the other Subsidiaries and other Persons, its review of the
Loan Documents, the legal opinions required to be delivered to it hereunder,
the advice of its own counsel and such other documents and information as it
has deemed appropriate, made its own credit and legal analysis and decision to
enter into this Agreement and the transactions contemplated hereby.  Each of the Lenders and the Issuing Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, any other Lender or counsel to the Administrative Agent
or any of their respective officers, directors, employees and agents, and based
on such review, advice, documents and information as it shall deem appropriate
at the time, continue to make its own decisions in taking or not taking action
under the Loan Documents.  The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Borrower or any other Loan Party of the Loan
Documents or any other document referred to or provided for therein or to
inspect the properties or books of, or make any other investigation of, the
Borrower, any other Loan Party or any other Subsidiary.  Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders and
the Issuing Bank by the Administrative Agent under this Agreement or any of the
other Loan Documents, the Administrative Agent shall have no duty or
responsibility to provide any Lender or the Issuing Bank with any credit or
other information concerning the business, operations, property, financial and
other condition or creditworthiness of the Borrower, any other Loan Party or
any other Affiliate thereof which may come into possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or other Affiliates. 
Each of the Lenders and the Issuing Bank acknowledges that the
Administrative Agent’s legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the Administrative
Agent and is not acting as counsel to any Lender or the Issuing Bank.


 


Section 11.10.  Successor Administrative Agent.


 


The
Administrative Agent may resign at any time as Administrative Agent under the
Loan Documents by giving written notice thereof to the Lenders and the
Borrower.  Upon any such resignation, the
Requisite Lenders shall have the right to appoint a successor Administrative
Agent which appointment shall, provided no Default or Event of Default exists,
be subject to the Borrower’s approval, which approval shall not be unreasonably
withheld or delayed (except that the Borrower shall, in all events, be deemed
to have approved each Lender and any of its affiliates as a successor
Administrative Agent).  If no successor
Administrative Agent shall have been so appointed in accordance with the
immediately preceding sentence, and shall have accepted such appointment,
within thirty (30) days after the current Administrative Agent’s giving of
notice of resignation, then the current Administrative Agent may, on behalf of
the Lenders and the Issuing Bank, appoint a successor Administrative Agent,
which shall be a Lender, if any Lender shall be willing to serve, and otherwise
shall be an Eligible Assignee.  Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights,


 


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powers,
privileges and duties of the current Administrative Agent, and the current
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents.  After any
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article XI. shall continue to inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under the Loan Documents. 
Notwithstanding anything contained herein to the contrary, the
Administrative Agent may assign its rights and duties under the Loan Documents
to any of its affiliates by giving the Borrower and each Lender prior written
notice.


 


ARTICLE
XII. MISCELLANEOUS


 


Section 12.1.  Notices.


 


Unless
otherwise provided herein (including without limitation as provided in Section 8.5.),
communications provided for hereunder shall be in writing and shall be mailed,
telecopied, or delivered as follows:


 


If to the Borrower:


 


Maui Land &
Pineapple Company, Inc.


P.O. Box 187


Kahului, Hawaii  96733


Attention:  John Durkin


 


If to the Administrative Agent:


 


Wells Fargo Bank,


National Association


11601 Wilshire Boulevard


17th Floor


Los Angeles, California  90025


Attention: Jon Carrick


 


If to the Issuing Bank:


 


Wells Fargo Bank,


National Association


11601 Wilshire Boulevard


17th Floor


Los Angeles, California  90025


Attention: Jon Carrick


 


If to any other Lender:


 


To such Lender’s address or telecopy number as set
forth on Schedule 12.1 attached hereto


 


or,
as to each party at such other address as shall be designated by such party in
a written notice to the other parties delivered in compliance with this
Section; provided, a Lender or the Issuing Bank shall only be required to give
notice of any such other address to the Administrative Agent and the
Borrower.  All such notices and other
communications shall be effective (i) if mailed, upon the first to occur
of receipt or


 


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the
expiration of three (3) days after the deposit in the United States Postal
Service mail, postage prepaid and addressed to the address of the Borrower or
the Administrative Agent, the Issuing Bank and Lenders at the addresses
specified; (ii) if telecopied, when transmitted; (iii) if hand
delivered, when delivered; or (iv) if delivered in accordance with Section 8.5.
to the extent applicable; provided, however, that, in the case of the
immediately preceding clauses (i), (ii) and (iii), non-receipt of any
communication as of the result of any change of address of which the sending
party was not notified or as the result of a refusal to accept delivery shall
be deemed receipt of such communication. 
Notwithstanding the immediately preceding sentence, all notices or
communications to the Administrative Agent, the Issuing Bank or any Lender
under Article II. shall be effective only when actually received.  None of the Administrative Agent, the Issuing
Bank or any Lender shall incur any liability to the Borrower (nor shall the
Administrative Agent incur any liability to the Lenders) for acting upon any
telephonic notice referred to in this Agreement which the Administrative Agent,
the Issuing Bank or such Lender, as the case may be, believes in good faith to
have been given by a Person authorized to deliver such notice or for otherwise
acting in good faith hereunder.


 


Section 12.2.  Expenses.


 


The
Borrower agrees (a) to pay or reimburse the Administrative Agent for all
of its reasonable out-of-pocket costs and reasonable expenses incurred in
connection with the preparation, negotiation and execution of, and any
amendment, supplement or modification to, any of the Loan Documents (including
due diligence expense and reasonable travel expenses related to closing), and
the consummation of the transactions contemplated thereby, including the
reasonable fees and disbursements of counsel to the Administrative Agent and
all costs and expenses of the Administrative Agent in connection with the
Administrative Agent’s activities under this Agreement, including the cost of
all Appraisals and the reasonable fees and disbursements of counsel to the
Administrative Agent relating to all such activities, (b) to pay to the
Issuing Bank all reasonable out-of-pocket costs and expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder, (c) to pay
or reimburse the Administrative Agent, the Issuing Bank and the Lenders for all
their costs and expenses incurred in connection with the enforcement or
preservation of any rights under the Loan Documents and the Fee Letter,
including the reasonable fees and disbursements of their respective counsel
(including the allocated fees and expenses of in-house counsel) and any
payments in indemnification or otherwise payable by the Lenders to the
Administrative Agent pursuant to the Loan Documents, (d) to pay, and
indemnify and hold harmless the Administrative Agent, the Issuing Bank and the
Lenders from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any failure to pay or delay in paying,
documentary, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of any of the Loan Documents, or consummation of any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
any Loan Document and (e) to the extent not already covered by any of the
preceding subsections, to pay the fees and disbursements of counsel to the
Administrative Agent, the Issuing Bank and any Lender incurred in connection
with the representation of the Administrative Agent, the Issuing Bank or such
Lender in any matter relating to or arising out of any bankruptcy or other
proceeding of the type described in Sections 10.1.(e) or 10.1.(f),
including, without limitation (i) any motion for relief from any stay or
similar order, (ii) the negotiation, preparation, execution and delivery
of any document relating to the Obligations and (iii) the negotiation and
preparation of any debtor-in-possession financing or any plan of reorganization
of the Borrower or any other Loan Party, whether proposed by the Borrower, such
Loan Party, the Lenders or any other Person, and whether such fees and expenses
are incurred prior to, during or after the commencement of such proceeding or
the confirmation or conclusion of any such proceeding.


 


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Section 12.3.  Stamp, Intangible and Recording Taxes.


 


The
Borrower will pay any and all stamp, excise, intangible, registration,
recordation and similar taxes, fees or charges and shall indemnify the
Administrative Agent and each Lender against any and all liabilities with
respect to or resulting from any delay in the payment or omission to pay any
such taxes, fees or charges, which may be payable or determined to be payable
in connection with the execution, delivery, recording, performance or enforcement
of this Agreement, the Notes and any of the other Loan Documents, the
amendment, supplement, modification or waiver of or consent under this
Agreement, the Notes or any of the other Loan Documents or the perfection of
any rights or Liens under this Agreement, the Notes or any of the other Loan
Documents.


 


Section 12.4.  Setoff.


 


Subject
to Section 3.3. and in addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, the
Administrative Agent, each Lender, the Issuing Bank and each Participant is
hereby authorized by the Borrower, at any time or from time to time while an
Event of Default exists, without notice to the Borrower or to any other Person,
any such notice being hereby expressly waived, but in the case of a Lender, the
Issuing Bank or a Participant subject to receipt of the prior written consent
of the Administrative Agent and the Requisite Lenders exercised in their sole
discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Administrative Agent, the Issuing
Bank, such Lender, such Participant or any affiliate of the Administrative
Agent, the Issuing Bank or such Lender, to or for the credit or the account of
the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by Section 10.2.,
and although such Obligations shall be contingent or unmatured.


 


Section 12.5.  Litigation; Jurisdiction; Other Matters;
Waivers.


 


(a)           EACH PARTY HERETO
ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE BORROWER, THE
ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES.  ACCORDINGLY, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE
AGENT, THE ISSUING BANK AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL
IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING
OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR THE FEE LETTER OR
IN CONNECTION WITH ANY COLLATERAL OR ANY LIEN OR BY REASON OF ANY OTHER SUIT,
CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE ADMINISTRATIVE
AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE.


 


(b)           EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE ISSUING BANK AND EACH LENDER HEREBY AGREES THAT THE
FEDERAL DISTRICT COURT OF THE DISTRICT OF HAWAII OR, AT THE OPTION OF THE
ADMINISTRATIVE AGENT, ANY STATE COURT LOCATED IN HONOLULU, HAWAII, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWER, THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY OF THE LENDERS,
PERTAINING


 


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DIRECTLY
OR INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR
ANY OTHER LOAN DOCUMENT OR THE FEE LETTER OR TO ANY MATTER ARISING HEREFROM OR
THEREFROM OR THE COLLATERAL.  THE
BORROWER, THE ISSUING BANK AND EACH OF THE LENDERS EXPRESSLY SUBMIT AND CONSENT
IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH
COURTS.  THE BORROWER HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS
ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER
PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
THE BORROWER AT ITS ADDRESS FOR NOTICES PROVIDED FOR HEREIN.  SHOULD THE BORROWER FAIL TO APPEAR OR ANSWER
ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THIRTY (30) DAYS
AFTER THE MAILING THEREOF, THE BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR IN
SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. 
EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH
AGREES NOT TO PLEAD OR CLAIM THE SAME. 
THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED
TO PRECLUDE THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE AGENT, THE ISSUING
BANK OR ANY LENDER OR THE ENFORCEMENT BY THE ADMINISTRATIVE AGENT OR ANY LENDER
OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


(c)           THE PROVISIONS OF THIS SECTION HAVE
BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING
OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS
AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE
TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS
AGREEMENT.


 


Section 12.6.  Successors and Assigns.


 


(a)           Generally.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
otherwise transfer any of is rights under this Agreement without the prior
written consent of all the Lenders (and any such assignment or transfer to
which all of the Lenders have not consented shall be void).


 


(b)           Participations.  Any Lender may at any time grant to an
affiliate of such Lender, or one or more banks or other financial institutions
(each a “Participant”) participating interests in its Commitments or the
Obligations owing to such Lender.  Except
as otherwise provided in Section 12.4. or as otherwise expressly stated
herein, no Participant shall have any rights or benefits under this Agreement
or any other Loan Document.  In the event
of any such grant by a Lender of a participating interest to a Participant,
such Lender shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. 
Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided, however, such Lender
may agree with the Participant that it will not, without the consent of the


 


80

















 


Participant,
agree to (i) increase such Lender’s Commitment, (ii) extend the date
fixed for the payment of principal on the Loans or portions thereof owing to
such Lender, or (iii) reduce the rate at which interest is payable
thereon.  An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).


 


(c)           Assignments.  Any Lender may with the prior written consent
of the Administrative Agent at any time assign to one or more Eligible
Assignees (each an “Assignee”) all or a portion of its rights and obligations
under this Agreement and the Notes; provided, however, (i) any partial
assignment shall be in an amount at least equal to $5,000,000 and after giving
effect to such assignment the assigning Lender retains a Commitment, or if the
Commitments have been terminated, holds Notes having an aggregate outstanding
principal balance, of at least $5,000,000, (ii) if the assigning Lender (or
its Affiliate) is a Specified Derivatives Provider and if after giving effect
to such assignment such Lender will hold no further Loans or Commitments under
this Agreement, such Lender shall undertake such assignment only
contemporaneously with an assignment by such Lender (or its Affiliate, as the
case may be) of all of its Specified Derivatives Contracts to the Assignee or
another Lender (or Affiliate thereof) and (iii) each such assignment shall
be effected by means of an Assignment and Assumption Agreement.  Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and such
Assignee, such Assignee shall be deemed to be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender with a Revolving
Commitment and/or Loans, as the case may be, as set forth in such Assignment
and Assumption Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. 
Upon the consummation of any assignment pursuant to this subsection (c),
the transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so the new Notes are issued to the Assignee and such
transferor Lender, as appropriate, and shall update Schedule I attached
hereto.  In connection with any such
assignment, the transferor Lender shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of
$4,500.00.  Anything in this Section to
the contrary notwithstanding, no Lender may assign or participate any interest
in any Loan held by it hereunder to the Borrower, or any of its respective
affiliates or Subsidiaries.


 


(d)           Federal Reserve Bank
Assignments.  In addition
to the assignments and participations permitted under the foregoing provisions
of the Section, and without the need to comply with any of the formal or
procedural requirements of this Section, any Lender may at any time and from
time to time, pledge and assign all or any portion of its rights under all or
any of the Loan Documents to a Federal Reserve Bank; provided that no such
pledge of assignment shall release such Lender from its obligations
thereunder.  No such pledge or assignment
shall release the assigning Lender from its obligations hereunder.


 


(e)           Information to Assignee, Etc.  A Lender may furnish any information
concerning the Borrower, any Subsidiary or any other Loan Party in the
possession of such Lender from time to time to Assignees and Participants
(including prospective Assignees and Participants).


 


Section 12.7.  Amendments and Waivers.


 


(a)           Generally.  Except as otherwise expressly provided in this
Agreement, (i) any consent or approval required or permitted by this
Agreement or in any Loan Document to be given by the Lenders may be given, (ii) any
term of this Agreement or of any other Loan Document may be amended, (iii) the
performance or observance by the Borrower or any other Loan Party of any terms
of this Agreement or such other Loan Document may be waived, and (iv) the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with,


 


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but only with, the written consent of the Requisite Lenders
(or the Administrative Agent at the written direction of the Requisite
Lenders), and, in the case of an amendment to any Loan Document, the written
consent of each Loan Party which is party thereto.  Notwithstanding the previous sentence, the
Administrative Agent, shall be authorized on behalf of all the Lenders, without
the necessity of any notice to, or further consent from, any Lender, to waive
the imposition of the late fees provided in Section 2.8., up to a maximum of 3 times per calendar year.


 


(b)           Unanimous
Consent. 
Notwithstanding the foregoing, no amendment, waiver or consent shall,
unless in writing, and signed by all of the Lenders directly affected thereby
(or the Administrative Agent at the written direction of the Lenders), do any
of the following:


 


(i)            increase the
Commitments of the Lenders (excluding any increase as a result of an assignment
of Commitments permitted under Section 12.6.)  or subject the Lenders to any additional obligations.


 


(ii)           reduce the
principal of, or interest rates that have accrued or that will be charged on
the outstanding principal amount of, any Loans or other Obligations;


 


(iii)          reduce the
amount of any Fees payable to the Lenders hereunder;


 


(iv)          postpone any
date fixed for any payment of principal of, or interest on, any Loans or for
the payment of Fees or any other Obligations, or extend the expiration date of
any Letter of Credit beyond the Maturity Date;


 


(v)           change the
definitions of Revolving Commitment Percentage or Pro Rata Share;


 


(vi)          amend this Section or
amend the definitions of the terms used in this Agreement or the other Loan
Documents insofar as such definitions affect the substance of this Section;


 


(vii)         modify the
definition of the term “Requisite Lenders” or modify in any other manner the
number or percentage of the Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof;


 


(viii)        release any
Guarantor from its obligations under any Guaranty;


 


(ix)           waive a Default
or Event of Default under Section 10.1.(a);


 


(x)            amend, or waive
the Borrower’s compliance with, Section 2.14; or


 


(xi)           release or
dispose of any collateral unless released or disposed of as permitted by, and
in accordance with, Section 11.3.


 


(c)           Amendment of Administrative
Agent’s Duties, Etc.  No
amendment, waiver or consent unless in writing and signed by the Administrative
Agent, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Administrative Agent under this
Agreement or any of the other Loan Documents. 
Any amendment, waiver or consent relating to Section 2.3. or the
obligations of the Swingline Lender under this Agreement or any other Loan
Document shall, in addition to the Lenders required hereinabove to take such
action, require the written consent of the Swingline Lender.  Any amendment, waiver or consent relating to Section 2.2.
or the obligations of the Issuing Bank under this Agreement or any other Loan
Document shall, in addition to the Lenders required hereinabove to take such
action, require the written consent of the Issuing Bank.  Any amendment, waiver or consent


 


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with
respect to any Loan Document that (i) diminishes the rights of a Specified
Derivatives Provider in a manner or to an extent dissimilar to that affecting
the Lenders or (ii) increases the liabilities or obligations of a
Specified Derivatives Provider shall, in addition to the Lenders required
hereinabove to take such action, require the consent of the Lender that is (or
having an Affiliate that is) such Specified Derivatives Provider.  No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon and any
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose set forth therein. 
No course of dealing or delay or omission on the part of the
Administrative Agent or any Lender in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto.  Any Event
of Default occurring hereunder shall continue to exist until such time as such
Event of Default is waived in writing in accordance with the terms of this
Section, notwithstanding any attempted cure or other action by the Borrower,
any other Loan Party or any other Person subsequent to the occurrence of such
Event of Default.  Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to or
demand upon the Borrower shall entitle the Borrower to other or further notice
or demand in similar or other circumstances.


 


Section 12.8.  Nonliability of Administrative Agent and
Lenders.


 


The
relationship between the Borrower, on the one hand, and the Lenders and the
Administrative Agent, on the other hand, shall be solely that of borrower and
lender.  Neither the Administrative Agent
nor any Lender shall have any fiduciary responsibilities to the Borrower and no
provision in this Agreement or in any of the other Loan Documents, and no
course of dealing between or among any of the parties hereto, shall be deemed
to create any fiduciary duty owing by the Administrative Agent or any Lender to
any Lender, the Borrower, any Subsidiary or any other Loan Party.  Neither the Administrative Agent nor any
Lender undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower’s business
or operations.


 


Section 12.9.  Confidentiality.


 


Except
as otherwise provided by Applicable Law, the Administrative Agent, the Issuing
Bank and each Lender shall utilize all non-public information obtained pursuant
to the requirements of this Agreement which has been identified as confidential
or proprietary by the Borrower in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe
and sound banking practices but in any event may make disclosure: (a) to
any of their respective affiliates (provided any such affiliate shall agree to
keep such information confidential in accordance with the terms of this
Section); (b) as reasonably requested by any bona fide Assignee, Participant
or other transferee in connection with the contemplated transfer of any
Commitment or participations therein as permitted hereunder (provided they
shall agree to keep such information confidential in accordance with the terms
of this Section); (c) as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process or in
connection with any legal proceedings; (d) to the Administrative Agent’s,
Issuing Bank’s or such Lender’s independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) if an Event of Default exists, to any other Person, in
connection with the exercise by the Administrative Agent, the Issuing Bank or
the Lenders of rights hereunder or under any of the other Loan Documents; and (f) to
the extent such information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
from a source other than the Borrower or any Affiliate.


 


Section 12.10.  Indemnification.


 


(a)           The Borrower shall and
hereby agrees to indemnify, defend and hold harmless the Administrative Agent,
any affiliate of the Administrative Agent, each of the Lenders and the Issuing
Bank


 


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and
their respective directors, officers, shareholders, agents, employees and
counsel (each referred to herein as an “Indemnified Party”) from and against
any and all losses, costs, claims, damages, liabilities, deficiencies,
judgments or expenses of every kind and nature (including, without limitation,
amounts paid in settlement, court costs and the fees and disbursements of
counsel incurred in connection with any litigation, investigation, claim or
proceeding or any advice rendered in connection therewith, but excluding
losses, costs, claims, damages, liabilities, deficiencies, judgments or
expenses indemnification in respect of which is specifically covered by Section 3.10.
or 4.1. or expressly excluded from the coverage of such Sections) incurred by
an Indemnified Party in connection with, arising out of, or by reason of, any
suit, cause of action, claim, arbitration, investigation or settlement, consent
decree or other proceeding (the foregoing referred to herein as an “Indemnity
Proceeding”) which is in any way related directly or indirectly to: (i) this
Agreement or any other Loan Document or the transactions contemplated thereby; (ii) the
making of any Loans or issuance of Letters of Credit hereunder; (iii) any
actual or proposed use by the Borrower of the proceeds of the Loans or Letters
of Credit; (iv) the Administrative Agent’s, the Issuing Bank’s  or any Lender’s entering into this Agreement;
(v) the fact that the Administrative Agent, the Issuing Bank and the
Lenders have established the credit facility evidenced hereby in favor of the
Borrower; (vi) the fact that the Administrative Agent, the Issuing Bank
and the Lenders are creditors of the Borrower and have or are alleged to have
information regarding the financial condition, strategic plans or business
operations of the Borrower and the Subsidiaries; (vii) the fact that the
Administrative Agent, the Issuing Bank and the Lenders are material creditors
of the Borrower and are alleged to influence directly or indirectly the
business decisions or affairs of the Borrower and the Subsidiaries or their
financial condition; (viii) the exercise of any right or remedy the
Administrative Agent, the Issuing Bank or the Lenders may have under this
Agreement or the other Loan Documents including, but not limited to, the
foreclosure upon, or seizure of, any Collateral or the exercise of any other
rights of a secured party, including any Indemnity Proceeding arising from the
negligence of any Indemnified Party; provided, however, that the Borrower shall
not be obligated to indemnify any Indemnified Party for any acts or omissions
of such Indemnified Party in connection with matters described in this clause (viii) that
constitute gross negligence or willful misconduct; or (ix) any violation
or non-compliance by the Borrower or any Subsidiary of any Applicable Law
including, but not limited to, any Indemnity Proceeding commenced by (A) the
Internal Revenue Service or state taxing authority or (B) any Governmental
Authority or other Person under any Hazardous Materials Law, including any
Indemnity Proceeding commenced by a Governmental Authority or other Person
seeking remedial or other action to cause the Borrower or its Subsidiaries (or
its respective properties) (or the Administrative Agent and/or the Lenders
and/or the Issuing Bank as successors to the Borrower) to be in compliance with
such Hazardous Materials Laws.


 


(b)           The Borrower’s
indemnification obligations under this Section shall apply to all
Indemnity Proceedings arising out of, or related to, the foregoing whether or
not an Indemnified Party is a named party in such Indemnity Proceeding.  In this connection, this indemnification
shall cover all costs and expenses of any Indemnified Party in connection with
any deposition of any Indemnified Party or compliance with any subpoena
(including any subpoena requesting the production of documents).  This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in
their individual capacity or derivatively on behalf of the Borrower), any
account debtor of the Borrower or any Subsidiary or by any Governmental
Authority.


 


(c)           This indemnification shall
apply to any Indemnity Proceeding arising during the pendency of any bankruptcy
proceeding filed by or against the Borrower and/or any Subsidiary.


 


(d)           All out-of-pocket fees and
expenses of, and all amounts paid to third-persons by, an Indemnified Party
shall be advanced by the Borrower at the request of such Indemnified Party


 


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notwithstanding
any claim or assertion by the Borrower that such Indemnified Party is not
entitled to indemnification hereunder upon receipt of an undertaking by such
Indemnified Party that such Indemnified Party will reimburse the Borrower if it
is actually and finally determined by a court of competent jurisdiction that
such Indemnified Party is not so entitled to indemnification hereunder.


 


(e)           An Indemnified Party may
conduct its own investigation and defense of, and may formulate its own
strategy with respect to, any Indemnity Proceeding covered by this Section and,
as provided above, all costs and expenses incurred by such Indemnified Party
shall be reimbursed by the Borrower.  No
action taken by legal counsel chosen by an Indemnified Party in investigating
or defending against any such Indemnity Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that (i) if
the Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii) the
Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to reimburse such
Indemnified Party for any amount paid by such Indemnified Party with respect to
such Indemnity Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnity Proceeding without the prior written consent of
the Borrower (which consent shall not be unreasonably withheld or delayed).


 


(f)            If and to the extent that
the obligations of the Borrower hereunder are unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under Applicable Law.


 


(g)           The Borrower’s obligations
hereunder shall survive any termination of this Agreement and the other Loan
Documents and the payment in full in cash of the Obligations, and are in
addition to, and not in substitution of, any of the other obligations set forth
in this Agreement or any other Loan Document to which it is a party.


 


References
in this Section 12.10. to “Lender” or “Lenders” shall be deemed to include
such Persons (and their Affiliates) in their capacity as Specified Derivatives
Providers.


 


Section 12.11.  Termination; Survival.


 


At
such time as (a) all of the Commitments have been terminated, (b) none
of the Lenders is obligated any longer under this Agreement to make any Loans
and (c) all Obligations (other than obligations which survive as provided
in the following sentence) have been paid and satisfied in full, this Agreement
shall terminate. The indemnities to which the Administrative Agent, the Issuing
Bank and the Lenders are entitled under the provisions of Sections 4.1.,
4.4., 11.8., 12.2. and 12.10. and any other provision of this Agreement and the
other Loan Documents, and the provisions of Section 12.5., shall continue
in full force and effect and shall protect the Administrative Agent, the
Issuing Bank and the Lenders (i) notwithstanding any termination of this
Agreement, or of the other Loan Documents, against events arising after such
termination as well as before and (ii) at all times after any such party
ceases to be a party to this Agreement with respect to all matters and events
existing on or prior to the date such party ceased to be a party to this
Agreement.


 


Section 12.12.  Severability of Provisions.


 


If
any provision under this Agreement or the other Loan Documents shall be
determined by a court of competent jurisdiction to be invalid or unenforceable,
that provision shall be deemed severed from the Loan Documents, and the
validity, legality and enforceability of the remaining provisions shall remain
in full force as thought the invalid, illegal, or unenforceable provision had
never been part of the Loan Documents.


 


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Section 12.13.  GOVERNING LAW.


 


THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF HAWAII APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.


 


Section 12.14.  Counterparts.


 


To
facilitate execution, this Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts as may be convenient
or required.  It shall not be necessary
that the signature of, or on behalf of, each 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.


 


Section 12.15.  Obligations with Respect to Loan Parties.


 


The
obligations of the Borrower to direct or prohibit the taking of certain actions
by the other Loan Parties as specified herein shall be absolute and not subject
to any defense the Borrower may have that the Borrower does not control such
Loan Parties.


 


Section 12.16.  Independence of Covenants.


 


All
covenants hereunder shall be given in any jurisdiction independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.


 


Section 12.17.  Limitation of Liability.


 


None
of the Administrative Agent, the Issuing Bank or any Lender, or any affiliate,
officer, director, employee, attorney, or agent of the Administrative Agent,
the Issuing Bank or any Lender shall have any liability with respect to, and
the Borrower hereby waives, releases, and agrees not to sue any of them upon,
any claim for any special, indirect, incidental, or consequential damages
suffered or incurred by the Borrower in connection with, arising out of, or in
any way related to, this Agreement, any of the other Loan Documents or the Fee
Letter, or any of the transactions contemplated by this Agreement or any of the
other Loan Documents.  The Borrower
hereby waives, releases, and agrees not to sue the Administrative Agent, the Issuing
Bank or any Lender or any of the Administrative Agent’s, the Issuing Bank’s or
any Lender’s affiliates, officers, directors, employees, attorneys, or agents
for punitive damages in respect of any claim in connection with, arising out
of, or in any way related to, this Agreement, any of the other Loan Documents,
the Fee Letter, or any of the transactions contemplated by this Agreement or
financed hereby.


 


Section 12.18.  Entire Agreement.


 


This
Agreement, the Notes, the other Loan Documents and the Fee Letter embody the
final, entire agreement among the parties hereto and supersede any and all
prior commitments, agreements, representations, and understandings, whether
written or oral, relating to the subject matter hereof and thereof and may not
be contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto.  There are no oral agreements among the
parties hereto.


 


86

















 


Section 12.19.  Construction.


 


The
Administrative Agent, the Issuing Bank, the Borrower and each Lender
acknowledge that each of them has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review this Agreement and the
other Loan Documents with its legal counsel and that this Agreement and the
other Loan Documents shall be construed as if jointly drafted by the
Administrative Agent, the Issuing Bank, the Borrower and each Lender.


 


Section 12.20.  Headings.


 


The
paragraph and section headings in this Agreement are provided for convenience
of reference only and shall not affect its construction or interpretation.


 


[Signatures on Following Pages]


 


87
















 


IN
WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be
executed by their authorized officers all as of the day and year first above
written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  MAUI LAND & PINEAPPLE COMPANY, INC.,

  
	
   

  	
  a
  Hawaii corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /S/
  JOHN P. DURKIN

  
	
   

  	
   

  	
  Name:

  	
  John
  P. Durkin

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /S/
  ADELE H. SUMIDA

  
	
   

  	
   

  	
  Name:

  	
  Adele
  H. Sumida

  
	
   

  	
   

  	
  Title:

  	
  Controller &
  Secretary

  



 


 


[Signatures Continued on Next Page]


 


88

















 


Signature Page to Credit Agreement dated as of


October 9, 2009 with Maui Land & Pineapple Company, Inc.


 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, as Administrative Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /S/
  GUY C. CHURCHILL

  
	
   

  	
   

  	
  Name:

  	
  Guy
  C. Churchill

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


 


[Signatures Continued on Next Page]


 


89

















 


Signature Page to Credit Agreement dated as of


October 9, 2009 with Maui Land & Pineapple Company, Inc.


 


	
   

  	
  AMERICAN
  AGCREDIT, PCA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /S/
  GARY VANSCHUYVER

  
	
   

  	
   

  	
  Name:

  	
  Gary
  VanSchuyver

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


90

















 


Signature Page to Credit Agreement dated as of


October 9, 2009 with Maui Land & Pineapple Company, Inc.


 


	
   

  	
  AMERICAN
  SAVINGS BANK, F.S.B.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /S/
  W. RUSSELL

  
	
   

  	
   

  	
  Name:

  	
  W.
  Russell

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  



 


91