Exhibit 10.41


 


Loan No. 105088


 


MODIFICATION
AGREEMENT


Secured
Loan


 


THIS MODIFICATION
AGREEMENT (“Agreement”) dated November 7, 2008, is entered into by and
among MAUI LAND & PINEAPPLE COMPANY, INC., a corporation formed under
the laws of the State of Hawaii (“Borrower”), each of the financial
institutions signatory to the Loan Agreement (as defined below) (“Lenders”),
and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”) as
Administrative Agent under the Loan Agreement (in such capacity, the “Administrative
Agent”).


 


R E C I T
A L S


 


A.           Pursuant to the terms of a loan agreement between
Borrower and Lender dated November 13, 2007 (“Loan Agreement”), Lenders
made a loan to Borrower in the principal amount of NINETY MILLION AND NO/100THS
DOLLARS ($90,000.000.00) (“Loan”). The Loan is evidenced by promissory notes
dated as of the date of the Loan Agreement, executed by Borrower in favor of
each Lender, in the aggregate principal amount of the Loan (“Note”), and is
further evidenced by the documents described in the Loan Agreement as “Loan
Documents.” The Note is secured by, among other things, a Fee and Leasehold
Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of November 13, 2007, executed by Borrower and
Leasehold Mortgagor (as defined in the Loan Agreement”), collectively as
Mortgagor, and Administrative Agent, for the benefit of Lenders, as Mortgagee (“Mortgage”).
The Mortgage was recorded on November 15, 2007, as Instrument or Document No. 2007-199589,
in the Bureau of Conveyances of the State of Hawaii.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


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


 


2.                                       REPRESENTATIONS AND
WARRANTIES. Borrower
hereby represents and warrants that no Default, breach or failure of condition
has occurred, or would exist with notice or the lapse of time or both, under
any of the Loan Documents (as modified by this Agreement) and that all
representations and warranties herein and in the other Loan Documents are true
and correct, which representations and warranties shall survive execution of
this Agreement.


 


3.                                       MODIFICATION OF LOAN
DOCUMENTS. The
Loan Documents are hereby supplemented and modified to incorporate the
following, which shall supersede and prevail over any conflicting provisions of
the Loan Documents:


 


3.1                                 Section 2.14 of the Loan Agreement
is modified to provide that the term “Extension Date,” as used therein with reference
to the first extension of the Loan, shall mean February 13, 2009. The term
“Extension Date,” as used in the Loan Agreement with reference to all
subsequent extensions of the Loan, shall mean the date which is one (1) year
prior to the Then Scheduled Maturity Date (as defined in the Loan Agreement).


 


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


 


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


 


6.                                       MISCELLANEOUS. The headings used in this Agreement are
for convenience only and shall be disregarded in interpreting the substantive
provisions of this Agreement. All capitalized terms used herein, which are not
defined herein, shall have the meanings given to them in the other Loan
Documents. Time is of the essence of each term of the Loan Documents, including
this Agreement. If any provision of this Agreement or any of the other Loan
Documents shall be determined by a court of competent jurisdiction to be
invalid, illegal or unenforceable, that portion shall be deemed severed from
this Agreement and the remaining parts shall remain in full force as though the
invalid, illegal, or unenforceable portion had never been a part thereof.


 


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


 


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


 


 


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


 




	
   

  	
  “ADMINISTRATIVE
  AGENT AND LENDER”

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Guy Churchill

  
	
   

  	
  Name:

  	
  Guy Churchill

  
	
   

  	
  Title:

  	
  Vice President

  






 


 


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  “LENDER”

  
	
   

  	
   

  
	
   

  	
  AMERICAN SAVINGS BANK, F.S.B.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William M. Russell

  
	
   

  	
  Name:

  	
  William M. Russell

  
	
   

  	
  Title:

  	
  Vice President

  






 


 


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  “LENDER”

  
	
   

  	
   

  
	
   

  	
  AMERICAN AGCREDIT, PCA

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary Van Schuyver

  
	
   

  	
  Name:

  	
  Gary Van Schuyver

  
	
   

  	
  Title:

  	
  Vice President

  






 


 


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  “BORROWER”

  
	
   

  	
   

  
	
   

  	
  MAUI LAND & PINEAPPLE
  COMPANY, INC., 

  a Hawaii corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert I. Webber

  
	
   

  	
   

  	
  Robert I. Webber, Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Fred W. Rickert

  
	
   

  	
   

  	
  Fred W. Rickert, Vice
  President and Treasurer

  






 


 


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LEASEHOLD MORTGAGOR’S CONSENT


 


The undersigned (“Leasehold
Mortgagor”) consents to the foregoing Modification Agreement and the
transactions contemplated thereby and reaffirms its obligations under the Fee
and Leasehold Mortgage with Absolute Assignment of Leases and Rents, Security
Agreement and Fixture Filing (“Mortgage”) dated as of November 13, 2007,
and its waivers, as set forth in the Mortgage, of each and every one of the
possible defenses to such obligations. Leasehold Mortgagor further reaffirms
that its obligations under the Mortgage are separate and distinct from Borrower’s
obligations.


 


Dated as of: November 7,
2008


 




	
   

  	
  “LEASEHOLD
  MORTGAGOR”

  
	
   

  	
   

  
	
   

  	
  KAPALUA LAND COMPANY, LTD.,

  a Hawaii corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert I. Webber

  
	
   

  	
  Name:

  	
  Robert I. Webber

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Fred W. Rickert

  
	
   

  	
  Name:

  	
  Fred W. Rickert

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  






 


 


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