Exhibit 10.4


 


Loan
No. 0426195000


 


THIRD AMENDMENT TO

REVOLVING LINE OF CREDIT LOAN AGREEMENT


 


This Third Amendment to Revolving Line of Credit
Loan Agreement (this “Amendment”) is entered into by and between American
AgCredit, FLCA (“Lender”) and Maui Land & Pineapple Company, Inc.,
a Hawaii corporation (“Borrower”) to be effective as of December 31, 2008
(the “Effective Date”).


 


RECITALS


 


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


 


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


 


Accordingly the parties agree as follows:


 


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


 


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


 


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


 


1.3                                 Borrower shall
have paid to Lender a fee (the “Amendment Fee”) in the amount of $37,500.  The Amendment Fee shall be considered fully
earned and non-refundable upon its receipt by Lender and no portion thereof
shall be refundable to Borrower under any circumstances.


 


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


 


2.1                                 Accelerated
Delivery of Financial Statements and Compliance Certificate.  For the Fiscal Quarter ending March 31,
2009, Borrower shall deliver to Lender the financial statements and the
compliance certificate required by Section 11(g)(2) no later than April 30,
2009.  For each subsequent Fiscal
Quarter, Borrower shall deliver such financial statements and compliance
certificate to Lender by the date otherwise set forth in Section 11(g)(2).


 


2.2                                 Minimum Net
Worth Covenant not to Apply as of December 31, 2008.  The Minimum Net Worth covenant set
forth in Section 12(i)(1) shall not apply for the Fiscal Quarter
ending December 31, 2008.  This
covenant shall apply on the Fiscal Quarter ending on March 31, 2009 and
each Fiscal Quarter thereafter in the amounts set forth in the Credit
Agreement.


 


 


1





















 


2.3                                 Funded Debt to
Capitalization covenant not to Apply as of December 31, 2008; Amendment
and Restatement of Covenant.  The Funded Debt to Capitalization
covenant set forth in Section 12(i)(2) is shall not apply as of December 31,
2008.  This section is hereby amended and
restated to read as follows:


 


(1)           Funded Debt to
Capitalization.  Borrower shall not
permit its Consolidated Fund Debt to exceed fifty-five percent (55%) of its
Consolidated Total Capitalization as of the end of any Fiscal Quarter.


 


2.4                                 Interest
Coverage Ratio Covenant not to Apply as of December 31, 2008; Amendment
and Restatement of Covenant.  The Interest Coverage Ratio covenant set
forth in Section 12(i)(3) shall not apply for the Fiscal Year ending December 31,
2008.  This covenant shall apply for the
Fiscal Year ending on December 31, 2009 and each Fiscal Year thereafter in
the amounts set forth in the Credit Agreement.


 


2.5                                 Mandatory
Prepayment or Posting of Additional Collateral.  Borrower acknowledges that Lender is
obtaining an appraisal of the real property securing the Obligations.  If the principal amount of the Obligations
exceeds fifty percent (50%) of the value of such property as set forth in the
appraisal, then Borrower shall immediately make a principal payment to Lender
in such amount as would reduce the principal balance of the obligations to 50%
of such appraised value (such 50% figure being the “New Credit Limit”).  Thereafter, the maximum amount that may be
borrowed by Borrower under the revolving line of credit shall not exceed the
New Credit Limit.  Borrower may, if it so
chooses, propose to Lender that Borrower provide Lender with additional
collateral in lieu of making the mandatory prepayment and request that Lender
consent to no reduction in the maximum amount that may be borrowed.  Any proposed additional collateral shall be
acceptable to Lender in Lender’s sole and absolute discretion.


 


2.6                                 Extension of
Maturity Date Requires Consent of Lender.  Section 3.4 of the Second Amendment to
the Credit Agreement provides for an extension of the Maturity Date from June 1,
2011 to June 1, 2026 so long as no Default or Event of Default exists on June 1,
2011.  Notwithstanding the Second
Amendment, the extension of the Maturity Date shall not occur unless Lender
notifies Borrower in writing before June 1, 2011 that Lender has consented
to such extension.  Lender may consent to
or deny such extension in Lender’s sole and absolute discretion.


 


2.7                                 Amended
Definition of Applicable Spread.  The definition of “Applicable Spread” in the
Credit Agreement is hereby amended and restated to read as follows:


 


“Applicable Spread” shall mean, (i) with
respect to that portion of the Loan bearing interest at the Base Rate, one
hundred eighty-five (185) basis points, and (ii) with respect to any Fixed
Rate Tranche, three hundred fifty (350) basis points; provided that the
Applicable Spread may be adjusted pursuant to Section 4(d)(3).


 


 


2





















 


2.8                                 Amended Section 4(d)(3).  Section 4(d)(3) of the Credit
Agreement, entitled “Adjustment in Applicable Spread,” is hereby amended
and restated to read as follows:


 


(3)           Adjustment in Applicable Spread. Commencing with
the receipt of the quarterly financial statements of Borrower for the period
ended June 30, 2009, the Applicable Spread shall be adjusted in accordance
with the performance pricing grid below based on Borrower’s Consolidated Funded
Debt to Consolidated Net Worth Ratio:


 


	
   

  	
   

  	
   

  	
   

  	
  Applicable Spread

  	
   

  
	
  Tier

  	
   

  	
  Consolidated Funded Debt to Consolidated Net Worth Ratio Level

  	
   

  	
  LIBOR FIXED RATE

  	
   

  	
  BASE RATE

  	
   

  
	
  I

  	
   

  	
  Less than or
  equal to 0.25

  	
   

  	
  200

  	
   

  	
  60

  	
   

  
	
  II

  	
   

  	
  Greater than
  0.25 but less than or equal to 0.50

  	
   

  	
  225

  	
   

  	
  60

  	
   

  
	
  III

  	
   

  	
  Greater than
  0.50 but less than or equal to 0.75

  	
   

  	
  250

  	
   

  	
  60

  	
   

  
	
  IV

  	
   

  	
  Greater than
  0.75 but less than or equal to 1.00

  	
   

  	
  275

  	
   

  	
  85

  	
   

  
	
  V

  	
   

  	
  Greater than
  1.00 but less than or equal to 1.25

  	
   

  	
  300

  	
   

  	
  135

  	
   

  
	
  VI

  	
   

  	
  Greater than
  1.25

  	
   

  	
  350

  	
   

  	
  185

  	
   

  



 


The Applicable Spread shall be adjusted quarterly
on the date (each a “Rate Calculation Date”) that is five Business Days after
the date on which Borrower provides the quarterly compliance certificate in
accordance with the provisions of Section 11(g)(2) (each a “Certificate
Delivery Date”); provided, that if either Borrower fails to provide the
compliance certificate to Lender for any fiscal quarter as required by and
within the time limits set forth in Section 11(g)(2), or a Default or an
Event of Default occurs, then the Applicable Spread from the date of such
failure or Default or Event of Default shall be based on row above entitled “Tier
VI” until five Business Days after the appropriate compliance certificate is
provided or until such Default or Event of Default is cured or waived,
respectively, whereupon the Applicable Spread shall be determined by the then
current ratio of Consolidated Funded Debt to Consolidated Net Worth.  Except to the extent otherwise provided
above, each Applicable Spread shall be effective from one Rate Calculation Date
until the next Rate Calculation Date.


 


 


3





















 


2.9                                 Amended Section 4(e).  Section 4(e) of the Credit
Agreement, entitled “Unused Commitment Fee,” is hereby amended and
restated to read as follows:


 


(e)           Commitment Fee. In consideration of Lender
remaining committed to fund the full amount of the Loan regardless of Borrower’s
actual utilization of the entire commitment, Borrower shall pay to Lender a
quarterly unused commitment fee (the “Unused Commitment Fee”) equal to quantity
obtained by multiplying the average daily balance of the unfunded commitment
during the quarter most recently ended by one half of one percent (0.50%) (the “Unused
Commitment Fee Percentage”). The Unused Commitment Fee shall be paid to Lender
on the first (1st) day of each calendar quarter with respect to the previous
calendar quarter and on the Maturity Date with respect to the period from the
last full calendar quarter through the Maturity Date. Commencing with the
receipt of the quarterly financial statements of Borrower for the period ended June 30,
2009, the Unused Commitment Fee Percentage shall be adjusted in accordance with
the performance pricing grid below based on Borrower’s Consolidated Funded Debt
to Consolidated Net Worth Ratio:


 


	
  Tier

  	
   

  	
  Consolidated Funded Debt to Consolidated Net Worth Ratio Level

  	
   

  	
  Unused Commitment Fee

  	
   

  
	
  I

  	
   

  	
  Less than or
  equal to 0.25

  	
   

  	
  .25

  	
  %

  
	
  II

  	
   

  	
  Greater than
  0.25 but less than or equal to 0.50

  	
   

  	
  .25

  	
  %

  
	
  III

  	
   

  	
  Greater than
  0.50 but less than or equal to 0.75

  	
   

  	
  .30

  	
  %

  
	
  IV

  	
   

  	
  Greater than
  0.75 but less than or equal to 1.00

  	
   

  	
  .35

  	
  %

  
	
  V

  	
   

  	
  Greater than
  1.00 but less than or equal to 1.25

  	
   

  	
  .40

  	
  %

  
	
  VI

  	
   

  	
  Greater than
  1.25

  	
   

  	
  .50

  	
  %

  



 


The Unused Commitment Fee Percentage shall be
adjusted quarterly on the date (each a “Commitment Fee Calculation Date”) that
is five Business Days after the date on which Borrower provides the quarterly
compliance certificate in accordance with the provisions of Section 11(g)(2) (each
a “Certificate Delivery Date”); provided, that if either Borrower fails to provide
the compliance certificate to Lender for any fiscal quarter as required by and
within the time limits set forth in Section 11(g)(2), or a Default or an
Event of Default occurs, then the Unused Commitment Fee Percentage from the
date of such failure or Default or Event of Default shall be based on row above
entitled “Tier VI” until five Business Days after the appropriate compliance
certificate is provided or until such Default or Event of Default is cured or
waived, respectively, whereupon the Unused Commitment Fee Percentage shall be
determined by the then current ratio of Consolidated Funded Debt to
Consolidated Net Worth.  Except to the
extent otherwise provided above, each Unused Commitment Fee Percentage shall be
effective from one Commitment Fee Calculation Date until the next Commitment
Fee Calculation Date.


 


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


 


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


 


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


 


 


4





















 


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


 


3.4                                 Except as disclosed to Lender in draft financial statements provided
for the period ending December 31, 2008, since the date of the last
financial statements delivered by Borrower to Lender, there has been no
material adverse change in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of
Borrower and its Subsidiaries taken as a whole or in the facts and information
regarding such entities as represented to Lender to date.


 


3.5                                 There are no actions, suits, investigations or proceedings pending or
to Borrower’s knowledge, threatened in any court or before any arbitrator or
governmental authority that purport (x) to materially and adversely affect
Borrower or any of its Subsidiaries, or (y) to affect any transaction
contemplated hereby or the ability of Borrower to perform its obligations under
the Loan Documents.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


5





















 


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


 


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


 


6.                                       Release.  Borrower
hereby releases, remises, acquits and forever discharges Lender and its
employees, agents, representatives, consultants, attorneys, fiduciaries,
officers, directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, and related corporate divisions
(collectively, the “Released Parties”), from any and all actions and causes of
action, judgments, executions, suits, debts, claims, demands, liabilities,
obligations, damages and expenses of any and every character, known or unknown,
direct and/or indirect, at law or in equity, of whatsoever kind or nature, for
or because of any matter or things done, omitted or suffered to be done by any
of the Released Parties prior to and including the date of delivery hereof, and
in any way directly or indirectly arising out of or in any way connected to the
Credit Agreement (collectively, the “Released Matters”).  Borrower acknowledges that the agreements in
this Section are intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Released Matters.


 


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


 


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


 


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


 


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


 


 


6





















 


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


 


8.                                       Miscellaneous.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


BORROWER:


 


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


 




	
  By:

  	
  /s/
  Robert I. Webber

  	
   

  	
   

  
	
  Name:

  	
  Robert
  I. Webber

  	
   

  	
   

  
	
  Title:

  	
  President &
  CEO

  	
   

  	
   

  






 




	
  By:

  	
  /s/
  Adele H. Sumida

  	
   

  	
   

  
	
  Name:

  	
  Adele
  H. Sumida

  	
   

  	
   

  
	
  Title:

  	
  Controller &
  Secretary

  	
   

  	
   

  






 


 


7

















 


LENDER:


 


AMERICAN AGCREDIT, FLCA


 




	
  By:

  	
  /s/
  Gary Van Schuyver

  	
   

  	
   

  
	
  Name:

  	
  Gary
  Van Schuyver

  	
   

  	
   

  
	
  Title:

  	
  Vice
  President

  	
   

  	
   

  






 


THE
SIGNATURES OF GUARANTORS APPEAR ON THE FOLLOWING PAGE.


 


 


8

















 


GUARANTORS:


 


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


 


KAPALUA
LAND COMPANY, LTD., a Hawaii corporation


 




	
  By:

  	
  /s/
  Robert I. Webber

  	
   

  	
   

  
	
  Name:

  	
  Robert
  I. Webber

  	
   

  	
   

  
	
  Title:

  	
  Executive
  Vice President

  	
   

  	
   

  






 




	
  By:

  	
  /s/
  Adele H. Sumida

  	
   

  	
   

  
	
  Name:

  	
  Adele
  H. Sumida

  	
   

  	
   

  
	
  Title:

  	
  Controller &
  Secretary

  	
   

  	
   

  






 


 


MAUI
PINEAPPLE COMPANY, LTD., a Hawaii corporation


 




	
  By:

  	
  /s/
  Robert I. Webber

  	
   

  	
   

  
	
  Name:

  	
  Robert
  I. Webber

  	
   

  	
   

  
	
  Title:

  	
  Executive
  Vice President

  	
   

  	
   

  






 




	
  By:

  	
  /s/
  Adele H. Sumida

  	
   

  	
   

  
	
  Name:

  	
  Adele
  H. Sumida

  	
   

  	
   

  
	
  Title:

  	
  Controller &
  Secretary

  	
   

  	
   

  






 


 


9