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
1
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;
1.6
BORROWER SHALL HAVE PAID TO ADMINISTRATIVE AGENT (I) FOR THE RATABLE
BENEFIT OF LENDERS A MODIFICATION FEE EQUAL TO 0.20% OF THE CREDIT LIMIT (AFTER
REDUCTION BY THE AMOUNT OF THE PLANTATION GOLF COURSE RELEASE PRICE) 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 MARCH 19, 2009;
1.7
ALL CONDITIONS PRECEDENT TO THE PLANTATION GOLF COURSE RELEASE (AS
DEFINED, AND AS SUCH CONDITIONS ARE SET FORTH, IN SECTION 3.2 BELOW) HAVE BEEN
SATISFIED; AND
1.8
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," "INDEBTEDNESS" AND "VARIABLE
RATE," AND TO ADD DEFINITIONS OF "LIBOR MARKET INDEX RATE," "RESTRICTED
PAYMENTS" AND "DISPOSITION," SUCH DEFINITIONS ARE AMENDED OR ADDED TO READ AS
FOLLOWS, WITH CHANGES IN THE EFFECTIVE RATE APPLICABLE UNDER THE LOAN TO BE
EFFECTIVE AS OF APRIL 1, 2009:
"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) four and one-quarter percent (4.25%) plus (b) the LIBO Rate, which rate is
divided by one (1.00) minus the Reserve Percentage:
Applicable LIBO Rate = 4.25%
+
LIBO Rate
(1 - Reserve Percentage)
"Disposition" means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction) of any