Exhibit 10.43
Loan No. 105088
THIRD MODIFICATION
AGREEMENT
Secured Loan
THIS THIRD MODIFICATION AGREEMENT
(“Agreement”) dated as of March 27, 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, Deed of Trust and Loan Agreement have
been previously amended and modified by modification agreements
dated November 7, 2008 and March 3, 2009.
C. 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.”
D. 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
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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:
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Applicable LIBO Rate =
4.25%
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+
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LIBO Rate
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(1 - Reserve Percentage)
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“ Disposition ”
means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated
therewith.
“ Indebtedness ”
means, as to any Person at a particular time, without duplication,
all items of indebtedness which, in accordance with GAAP and
industry practices, would be included in determining liabilities as
shown on the liability side of a balance sheet of such Person as of
the date as of which indebtedness is to be determined, including,
without limitation, all obligations for money borrowed and
capitalized lease obligations, and shall also include all
indebtedness and liabilities of any other Person assumed or
guaranteed by such Person or in respect of which such Person is
secondarily or contingently liable (other than by endorsement of
instruments in the course of collection) whether by reason of any
agreement to acquire such indebtedness or to supply or advance sums
or otherwise.
“ LIBOR Market Index
Rate ” means at any time the rate of interest, rounded up
to the nearest whole multiple of one-hundredth of one percent
(.01%), obtained by dividing (i) the rate of interest, rounded
upward to the nearest whole multiple of one-sixteenth of one
percent (0.0625%), quoted by the Administrative Agent from time to
time as the London Inter-Bank Rate for one-month deposits in U.S.
Dollars at approximately 9:00 a.m. Pacific time for such
day; provided, if such day is not a Business Day, the
immediately preceding Business Day by (ii) a percentage
equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained with
respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”) as specified in Regulation
D of the Board of Governors, of the Federal Reserve System (or
against any other category of liabilities which includes deposits
by reference to which the interest rate on LIBOR loans is
determined or any applicable category of extensions of credit or
other assets which includes loans by
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an office of any Lender outside of the United
States of America). Any change in such maximum rate shall
result in a change in the LIBOR Market Index Rate on the date on
which such change in such maximum rate becomes
effective.
“ Restricted Payment
” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or
other
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