Exhibit 10.5


 


Loan No. 0426195000


 


FOURTH AMENDMENT TO

REVOLVING LINE OF CREDIT LOAN AGREEMENT


 


This Fourth 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, a Second Amendment dated as of September 30,
2008, and a Third Amendment dated as of December 31, 2008 (as it may be
further amended, restated, modified or supplemented from time to time, the “Credit
Agreement”).  (Capitalized
terms used but not otherwise defined in this Amendment shall have the meanings
given to them in the Credit Agreement.)


 


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


 


Accordingly the parties agree as follows:


 


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


 


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


 


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


 


1.3           Borrower shall
have paid to Lender a fee (the “Amendment Fee”) in the amount of $50,000.  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           Change in
Maturity Date.  The
Maturity Date is hereby changed to March 13, 2010.  Any extension beyond such date shall be in
Lender’s sole and absolute discretion.


 


2.2           Liquidity.  Borrower shall maintain, as of the end of
each Fiscal Quarter, Liquidity of not less than $10,000,000.  As used herein, “Liquidity” means the
sum of (i) cash, (ii) cash equivalents, (iii) publicly traded
and publicly quoted marketable securities acceptable to Lender in its reasonable
discretion, (iv) undisbursed commitment under secured lines of credit
available to Borrower including, without limitation, the 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.


 


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2.3           Transfer of
Assets.  Section 12(b) of the
Credit Agreement is hereby amended and restated in its entirety as follows: “Transfer
of Assets.  Sell, transfer, lease or
otherwise dispose of any of its assets, or cause or permit any Subsidiary to
sell, transfer, lease or otherwise dispose of any of its assets, except: (i) inventory
in the ordinary course of Borrower’s or any Subsidiary’s business; (ii) obsolete
or worn out property, whether now owned or hereafter acquired, in the ordinary
course of Borrower’s or any Subsidiary’s business; and (iii) as approved
by Lender in writing prior to the sale, transfer, lease or other disposition of
such assets.”


 


2.4           Restricted
Payments.  Section 12(g) of
the Credit Agreement is hereby amended and restated in its entirety as follows:
“Restricted Payments.  Borrower
shall not, and shall not permit any of its Subsidiaries to, declare or make,
directly or indirectly, any Restricted Payment or incur any obligation
(contingent or otherwise) to do so.”


 


2.5           Minimum Net
Worth Covenant not to Apply During 2009.  The Minimum Net Worth covenant set
forth in Section 12(i)(1) shall not apply to any Fiscal Quarter in
2009, but shall again become applicable on the Fiscal Quarter ending March 31,
2010, if Lender in its sole discretion consents to an extension of the Maturity
Date.


 


2.6           Funded Debt to
Capitalization covenant not to Apply During 2009.  The Funded Debt to Capitalization
covenant set forth in Section 12(i)(2) shall not apply to any Fiscal
Quarter in 2009, but shall again become applicable on the Fiscal Quarter ending
March 31, 2010, if Lender in its sole discretion consents to an extension
of the Maturity Date.


 


2.7           Interest
Coverage Ratio Covenant not to Apply as of December 31, 2009; 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,
2009.  This covenant shall apply for the
Fiscal Year ending on December 31, 2010 and each Fiscal Year thereafter in
the amounts set forth in the Credit Agreement, if Lender in its sole discretion
consents to an extension of the Maturity Date.


 


2.8           Indebtedness.  Section 12(j) of the Credit
Agreement is hereby amended and restated in its entirety as follows:  “Indebtedness for Borrowed Money.  Incur any Indebtedness for Borrowed Money,
except for Indebtedness for Borrowed Money disclosed on the consolidated
balance sheet of Borrower and its Subsidiaries dated as of December 31,
2008, provided, however, that (i) Indebtedness for Borrowed Money incurred
in connection with leases of resort operations equipment (including, without
limitation, golf carts) in an amount not to exceed $750,000 and (ii) an
increase in the amount of Indebtedness attributable to the convertible debt of
Borrower arising solely from the recalculation of the amount of such debt under
GAAP based on a change in the stock price of shares of Borrower (and not as a
result of the issuance of new debt) shall not be considered an incurrence of
Indebtedness for Borrowed Money hereunder.”


 


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.


 


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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.


 


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


 


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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.


 


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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.


 


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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/ Ryan L. Churchill

  	
   

  
	
  Name:

  	
  Ryan L. Churchill

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Adele H. Sumida

  	
   

  
	
  Name:

  	
  Adele H. Sumida

  	
   

  
	
  Title:

  	
  Controller & Secretary

  	
   

  



 


 


LENDER:


 


AMERICAN
AGCREDIT, FLCA


 


	
  By:

  	
  /s/ Gary VanSchuyver

  	
   

  
	
  Name:

  	
  Gary VanSchuyver

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  



 


 


THE SIGNATURES OF GUARANTORS
APPEAR ON THE FOLLOWING PAGE.


 


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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/ Ryan L. Churchill

  	
   

  
	
  Name:

  	
  Ryan L. Churchill

  	
   

  
	
  Title:

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Adele H. Sumida

  	
   

  
	
  Name:

  	
  Adele H. Sumida

  	
   

  
	
  Title:

  	
  Controller & Secretary

  	
   

  



 


 


MAUI PINEAPPLE COMPANY, LTD., a Hawaii corporation


 


 


	
  By:

  	
  /s/ Wesley M. Nohara

  	
   

  
	
  Name:

  	
  Wesley M. Nohara

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Adele H. Sumida

  	
   

  
	
  Name:

  	
  Adele H. Sumida

  	
   

  
	
  Title:

  	
  Controller & Secretary

  	
   

  



 


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