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.
1
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