Exhibit
10.42


 


Loan No. 105088


 


SECOND
MODIFICATION AGREEMENT


Secured
Loan


 


THIS SECOND MODIFICATION
AGREEMENT (“Agreement”) dated as of March 3, 2009, 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, 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. All capitalized terms used
herein, which are not defined herein, shall have the meanings given to them in
the other Loan Documents.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


 


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1.6                                 Borrower shall have paid to
Administrative Agent (i) for the ratable benefit of Lenders a modification
fee equal to 0.15% of the Credit Limit and (ii) for the sole benefit of
Administrative Agent, certain other fees, each in the amount and at the times
as set forth in a separate letter agreement between Borrower and Administrative
Agent dated February 27, 2009; and


 


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


 


2.                                       REPRESENTATIONS AND
WARRANTIES. Borrower
hereby represents and warrants that no Default, Potential Default, breach or
failure of condition has occurred, or would exist with notice or the lapse of
time or both, under any of the Loan Documents (as modified by this Agreement)
and that all representations and warranties herein and in the other Loan
Documents are true and correct, 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                                 Interest Rate. In order to reflect the agreement of the parties to
modify the definition of “Applicable LIBO Rate” and “Variable Rate,”, such
definitions are amended to read as follows:


 


“Applicable LIBO Rate” is the rate of
interest, rounded upward to the nearest whole multiple of one-hundredth of one
percent (.01%), equal to the  sum  of: (a) prior to May 1,
2009, one and one-half percent (1.50%), and from and after May 1, 2009,
five percent (5.00%) plus (b) the LIBO Rate, which rate is divided
by one (1.00) minus the Reserve Percentage:


 


	
  Applicable LIBO Rate =
  1.50% or 5.00% (as provided above)

  	
  +

  	
  LIBO Rate

  
	
   

  	
   

  	
  (1 - Reserve
  Percentage)

  



 


“Variable Rate” - on any day means a
floating rate of interest per annum equal to the  higher  of
(a) (i) prior to May 1, 2009, the Prime Rate then in effect and (ii) from
and after May 1, 2009, four percent (4.00%) plus the Prime Rate then in
effect or (b) (i) prior to May 1, 2009, the Federal Funds
Rate then in effect as announced by the Federal Reserve Bank of New York plus
one and one-half percent (1.50%) and (ii) from and after May 1, 2009,
the Federal Funds Rate then in effect as announced by the Federal Reserve Bank
of New York plus one and one-half percent (1.50%) plus four percent (4.00%).


 


3.2                                 Recourse. To reflect the agreement of the parties
that any limitation on recourse with respect to the Loan is to be hereby
eliminated, Section 2.17 of the Loan Agreement and the defined term “Recourse
Amount” are deleted in their entirety. The Borrower, the Administrative Agent
and the Lenders confirm and agree that the Loan Documents are amended to
provide no limitation on the Administrative Agent’s and Lenders’ recovery
against Borrower under the Loan Documents.


 


3.3                                 Remargin. Borrower acknowledges that one or more Appraisals are
being prepared for the portion of the Property which remains subject to the
Mortgage (the “Remaining Property”) for the purpose of confirming to the
satisfaction of the Administrative Agent that the Credit Limit (whether
disbursed or not) as a percentage of the as-is value of the Property does not
exceed fifty percent (50%) (“Remargin Loan-to-Value Percentage”), based on the
as-is appraisal value of the Remaining Property. In the event such appraised
value is not adequate to meet the required Remargin Loan-to-Value Percentage,
then Borrower shall pay down the outstanding principal balance of the Loan (to
the extent necessary) and the Credit Limit shall be permanently reduced such
that said Remargin Loan to-Value Percentage may be met. Any required repayment
shall be made by Borrower on May 1, 2009, or such later date as
Administrative Agent may specify in its sole discretion in the event that the
Appraisals have not been finally prepared and reviewed by such date.


 


 


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3.4                                 Financial Covenants.


 


(a)                                  In order to reflect the agreement of the
parties that failure by Borrower to comply with Section 7.12 (a) for
the fiscal quarter ending on or about December 31, 2008, shall not
constitute a Default, the first sentence of Section 7.12 (a) of the
Loan Agreement is modified to read as follows: “Borrower shall, as of the end
of each fiscal quarter of Borrower (except for the fiscal quarter ending on or
about December 31, 2008), maintain a Net Worth of not less than
$85,000,000.00.”


 


(b)                                 In order to reflect the agreement of the
parties that failure by Borrower to comply with Section 7.12 (d) for
the fiscal year ending on or about December 31, 2008, shall not constitute
a Default, Section 7.12 (d) of the Loan Agreement is modified to read
as follows: “Borrower shall not permit the ratio of (i) net income of the
Borrower plus interest expense and taxes of Borrower to (ii) interest
expense of Borrower, in each case calculated in accordance with GAAP as of the
end of each fiscal year for the fiscal year then ending (except for the fiscal
year ending on or about December 31, 2008), to be less than 1.50 to 1.00.”


 


(c)                                  Section 8.2(a) is hereby
modified to provide that, notwithstanding anything to the contrary therein,
Borrower shall deliver any compliance certificate with respect to the fiscal
quarter ending on or about March 31, 2009, not later than April 30,
2009.


 


(d)                                 Notwithstanding the subsequent execution
and effectiveness as a whole of this Amendment, upon satisfaction of the
conditions precedent set forth herein, the modifications contained in Section 3.4
(a) and 3.4 (b) shall be deemed to have become effective as of December 31,
2008.


 


3.5                                 Extension Option. The Borrower hereby acknowledges that (i) the
Maturity Date has not been extended under Section 2.14 of the Loan
Agreement, (ii) Section 2.14 is of no further force and effect and
the Lenders have no further option to extend the Loan, and (iii) the
Maturity Date of the Loan is November 13, 2009 and is not subject to
further extension.


 


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. 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.


 


 


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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

  
	
   

  	
  Name:

  	
  Robert I. Webber

  
	
   

  	
  Title:

  	
  President &
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adele H. Sumida

  
	
   

  	
  Name:

  	
  Adele H. Sumida

  
	
   

  	
  Title:

  	
  Controller &
  Secretary

  






 


 


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LEASEHOLD MORTGAGOR’S CONSENT


 


The undersigned (“Leasehold
Mortgagor”) consents to the foregoing Second 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: March 3,
2009


 




	
   

  	
  “LEASEHOLD
  MORTGAGOR”

  
	
   

  	
   

  
	
   

  	
  KAPALUA LAND COMPANY, LTD.,

  
	
   

  	
  a Hawaii corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert I. Webber

  
	
   

  	
  Name:

  	
  Robert I. Webber

  
	
   

  	
  Title:

  	
  CFO & EVP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adele H. Sumida

  
	
   

  	
  Name:

  	
  Adele H. Sumida

  
	
   

  	
  Title:

  	
  Controller &
  Secretary

  






 


 


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