AMENDMENT NO. 2
TO
LIMITED PARTNERSHIP AGREEMENT
OF
KAAHUMANU CENTER ASSOCIATES
THIS AMENDMENT is made this 30th day of December, 2002,
between MAUI LAND & PINEAPPLE COMPANY,
INC., a Hawaii corporation
("MLP") and the EMPLOYEES' RETIREMENT
SYSTEM OF THE STATE OF
HAWAII, a quasi-governmental agency
("ERS"):
WITNESSETH THAT:
WHEREAS, MLP and ERS entered into that certain LIMITED
PARTNERSHIP AGREEMENT OF KAAHUMANU CENTER
ASSOCIATES (as amended,
the "L. P. Agreement") dated June 23, 1993,
forming a limited
partnership ("KCA") to expand, own and
operate Kaahumanu Shopping
Center ("Center") in Kahului, Maui, Hawaii;
and
WHEREAS, MLP and ERS entered into that certain
AMENDMENT NO. 1 TO LIMITED PARTNERSHIP
AGREEMENT OF KAAHUMANU
CENTER ASSOCIATES dated April 27, 1995, and
have now agreed to
further amend the L. P. Agreement;
NOW, THEREFORE, in consideration of the premises, the
mutual promises, obligations and agreements
contained herein, and
other good and valuable consideration, the
receipt and
sufficiency of which is hereby
acknowledged, MLP and ERS,
intending to be legally bound, do hereby
agree as follows:
The L. P. Agreement shall be and is hereby amended in
the following respects:
A.
Notwithstanding anything to the contrary in the
L. P. Agreement, any sale of the Property
or portion thereof
shall be subject to the provisions of the
L. P. Agreement as
modified by the following:
1.
Marketing of the
Property. ERS and MLP
agree
that the Partnership shall retain a broker
and offer the Property
for sale. As Managing Partner, MLP shall be
responsible for
engaging a broker and soliciting and
negotiating offers to purchase
the Property, provided that the decision to
accept any offer is a
Major Decision requiring approval in
accordance with Section 6.2
of the L. P. Agreement, as amended.
It is understood and
agreed
that initial offers to purchase the
Property will not necessarily
be presented for approval but, instead, MLP
may first negotiate
such offers to the point where it
determines that it has received
the offeror's best and final offer.
In all events, MLP
will
inform ERS of all offers and will give ERS
copies of all written
offers and ERS shall have the right to be
involved in such
negotiations if it chooses to be
involved.
2. ERS Option.
If, the Partnership
receives a bona
fide offer from a qualified third party
purchaser to purchase the
Property for a purchase price of $68.7
million or more with a
closing no later than December 31, 2003,
then the ERS shall have
an option to purchase MLP's partnership
interest as hereinafter
set forth in lieu of a sale to such third
party purchaser.
Upon
the receipt of any such offer, MLP shall
give ERS written notice
of the receipt of such offer and ERS shall
have forty-five (45)
days to exercise its option to purchase
MLP's partnership interest
by written notice to MLP. If ERS exercises its option, then
the
third party offer will not be accepted and
ERS shall be obligated
to purchase MLP's partnership interest;
provided, however that as
a condition of the ERS' purchase of MLP's
partnership interest,
MLP shall be released from its obligations
under the MLP Guaranty
and the purchase price of MLP's partnership
interest shall be
equal to the amount of distribution which
MLP would have received
from the Partnership pursuant to Section 4,
below, if the
Partnership had accepted the third party
offer and had sold the
Property to the third party.
3. Closing of
ERS Purchase. If ERS
exercises its
option pursuant to Section 2, ERS shall
close the purchase of
MLP's partnership interest on a mutually
agreeable date and time
within sixty (60) days from exercise of its
option (or the next
following business day if that date is a
weekend or holiday) or
at ERS' option, within such longer time as
may have been set
forth in the bona fide offer from the third
party. The
purchase
price for MLP's partnership interest shall
be paid in cash at
closing. MLP and ERS shall execute such
documentation and
instruments, act diligently to secure any
and all necessary
consents, and make such deliv
