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