Exhibit 10.1
Loan No. 0426195000
FIRST AMENDMENT TO
REVOLVING LINE OF CREDIT LOAN
AGREEMENT
This First Amendment to Revolving
Line of Credit Loan Agreement (this “Amendment”) is
entered into by and between American AgCredit, FLCA, successor in
interest to Pacific Coast Farm Credit Services, ACA
(“Lender”) and Maui Land & Pineapple Company, Inc.,
a Hawaii corporation (“Borrower”) to be effective as of
the 4 th day of December, 2006 (the
“Effective Date”).
RECITALS
A.
Borrower and Lender entered in to a
Revolving Line of Credit Loan Agreement dated September 1, 2005
(the “Credit Agreement”) whereby Lender converted a
term loan agreement to a revolving line of credit pursuant to the
terms and conditions set forth in the Credit Agreement and
evidenced by a promissory note dated June 1, 1999 in the amount of
Fifteen Million Dollars ($15,000,000.00) (the
“Note”).
B.
Borrower has requested Lender
increase the total line of credit as evidenced by the Note and
governed by the Credit Agreement to $25,000,000, extend the draw
period and extend the maturity date.
C.
Lender is willing to increase the
total amount available under the line of credit as requested, and
extend the draw period and maturity date of the Note, subject to
and in accordance with the terms, covenants, conditions and
provisions of this Amendment.
Accordingly the parties agree as
follows:
1.
Definitions
. Unless otherwise defined
herein, capitalized terms used herein shall have the same meaning
as in the Credit Agreement.
1.1
The definition of
“Consolidated Indebtedness” is hereby deleted, and all
references in the Credit Agreement to “Consolidated
Indebtedness” are hereby replaced with “Indebtedness
for Borrowed Money”:
“Indebtedness for Borrowed
Money” shall mean any indebtedness or obligation or liability
to repay borrowed monies, whether matured or unmatured, liquidated
or unliquidated, direct or contingent, joint or several, including,
without limitation, all such indebtedness guaranteed, directly or
indirectly, in any manner, or endorsed (other than for collection
or deposit in the ordinary course of business) or discounted with
recourse.
1.2
The definition of “Thirty-Day
Fixed Rate Tranche” is hereby deleted in its entirety and
replaced with the following definition, and all references in the
Credit Agreement to “Thirty-Day Fixed Rate Tranche” are
hereby replaced with “One-Month Fixed Rate
Tranche”:
“One-Month Fixed Rate
Tranche” shall mean a Fixed Rate Tranche utilizing a fixed
rate Interest Period of one month, established pursuant to Section
3.
1.3
The definition of
“Subsidiary” is hereby deleted in its entirety and
replaced with the following definition:
“Subsidiaries” shall
mean any corporation, partnership, limited liability company, joint
venture or any other legal entity that in accordance with GAAP
would be properly consolidated on the books of the
Borrower.
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1.4
The following terms are defined as
follows:
“Draw Period” shall mean
the period of time during which the Borrower may receive Advances
under the Credit Agreement.
“Farm
Credit Discount Note Rate” shall mean, at any time, the
all-in cost paid by U.S. AgBank, FCB (or by its successor or the
then applicable funding source for Lender) on Farm Credit Discount
Notes for the Interest Period selected, determined as of the second
Business Day prior to the end of each calendar month as made
available by the Federal Farm Credit Funding Corporation or its
successor.
“Loan Documents” shall
mean the Note, Credit Agreement, Mortgage, all guaranties of the
Loan and all other documents and instruments that evidence and/or
secure the Loan, all as amended from time to time.
“Mortgage” shall mean
the Mortgage, Assignment of Rents, Security Agreement, Financing
Statement and Fixture Filing ,
dated December 30, 1998, executed by Borrower in favor of
Pacific Coast Farm Credit Services, ACA , as mortgagee, and recorded December 30,
1998 as Document No. 98-196978, Bureau of Conveyances, State of
Hawaii (“Official Records”), as amended by that certain
Confirmation, Modification and Partial Release of Mortgage,
Assignment of Rents, Security Agreement, Financing Statement and
Fixture Filing, dated June 1, 1999 and recorded June 1, 1999 as
Document Nos. 99-087348 through 99-087349 of the Official Records,
as now or hereafter amended from time to time.
2.
Conditions
Precedent. The
release, substitution, waiver, and amendment are hereby granted
provided that the following conditions precedent are satisfied by
no later than December 15, 2006:
2.1
Execution and delivery to Lender of
the following documents and instruments to be executed and, where
applicable, acknowledged by Borrower and Guarantors:
(a)
This First Amendment to Revolving
Line of Credit Loan Agreement
(b)
First Amendment to Promissory
Note
(c)
Notice of Advance under Mortgage and
Amendment to Mortgage*
* Please note, this document must
be acknowledged before a Notary Public.
2.2
Issuance and delivery to Lender of
an additional advance endorsement to Lender’s existing Title
Insurance Policy in the form and amount satisfactory to Lender
insuring the continuing priority of the lien on the real property
described in the Mortgage.
2.3
Payment by Borrower of an amendment
fee in the amount of $62,500.00.
2.4
Payment by Borrower of all title
company fees, appraisal fees, attorney’s fees, recording
fees, and tax service and other similar out-of-pocket expenses
associated with this request.
2.5
Lender’s receipt of the
following documents, each of which must be satisfactory to Lender
in its sole discretion:
(a)
Disclosure Schedule setting forth
any exceptions to Borrower’s representations and warranties
herein, existing loans made by Borrower to third parties, Permitted
Encumbrances, and all subsidiaries owned by Borrower and all
partnerships and joint ventures in which Borrower is
engaged.
(b)
Current Preliminary Title
Reports
(d)
Copies of all public filings and
disclosures made by Borrower since September 1, 2005.
(e)
A certificate, duly executed by the
Secretary or an Assistant Secretary of Borrower confirming the due
authorization of the execution and delivery of this
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Amendment, the First Amendment to
Promissory Note and the Notice of Advance under Mortgage and
Amendment to Mortgage by Borrower and the adoption of all
resolutions necessary or appropriate to establish such
authorization (attaching thereto copies of all such
resolutions).
(f)
A certificate, duly executed by the
Secretary or an Assistant Secretary of each Guarantor confirming
the due authorization of the execution and delivery of this
Amendment by that Guarantor and the adoption of all resolutions
necessary or appropriate to establish such authorization (attaching
thereto copies of all such resolutions).
(g)
Evidence that all governmental
consents, permits, approvals or withholding of objections,
appropriate or necessary to complete the financing contemplated
herein have been obtained.
(h)
The favorable opinion of
Borrower’s and Guarantors’ counsel (who shall be
reasonably acceptable to Lender) as to the due execution,
authorization and enforceability of the Loa
