10-K 1 kaana-2013k.htm KAANAPALI LAND, LLC - FORM 10-K - 12/31/13

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

 

Washington, D.C. 20549

 

 

FORM 10-K

 

[  X  ]   Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
     
[       ]   Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the transition period from _____ to _____

 

For the fiscal year ended December 31, 2013 Commission file #0-50273

 

 

Kaanapali Land, LLC

(Exact name of registrant as specified in its charter)

 

 

Delaware

(State or other jurisdiction

of organization or organization)

01-0731997

(I.R.S. Employer Identification No.)

   

900 N. Michigan Ave., Chicago, Illinois

(Address of principal executive office)

60611

(Zip Code)

 

Registrant's telephone number, including area code 312-915-1987

 

Securities to be registered pursuant to Section 12(b) of the Act:

 

Title of each class

Name of each exchange on

which registered

N/A N/A

 

 

Securities registered pursuant to Section 12(g) of the Act:

 

Limited Liability Company Interests (Class A Shares)

(Title of Class)

 

 

Indicate by check mark whether the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [   ] No [ X ]

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes [   ] No [ X ]

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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [   ]   No [ X ]

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T) '232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes [   ]   No [   ]

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K ('229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K [ X ]

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of "large accelerated filer", "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

 

 

  Large accelerated filer [     ]      Accelerated filer [     ]  
 

Non-accelerated filer

(Do not check if a smaller

reporting company)

[     ]   Smaller reporting company [ X ]  

 

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).

Yes [   ] No [ X ]

 

State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant's most recently completed second fiscal quarter. Not applicable.

 

As of November 1, 2015, the registrant had approximately 1,792,613 Common Shares and 52,000 Class C Shares outstanding.

 

Documents incorporated by reference: None

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Table of Contents

 

Part I     Page      
         
Item 1.   Business 4  
         
Item 1A.   Risk Factors 13  
         
Item 1B.   Unresolved Staff Comments 16  
         
Item 2.   Properties 16  
         
Item 3.   Legal Proceedings 17  
         
Item 4.   Mine Safety Disclosures 22  
         
Part II        
         
Item 5.  

Market for the Registrant’s Common Equity, Related Security Holder Matters and Issuer Purchases of Equity Securities

23  
         
Item 6.   Selected Financial Data 24  
         
Item 7.   Management’s Discussion and Analysis of Financial Condition and Results of Operations 25  
         
Item 7A.   Quantitative and Qualitative Disclosures About Market Risk 29  
         
Item 8.   Financial Statements and Supplementary Data 30  
         
Item 9.  

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

63  
         
Item 9A.   Controls and Procedures 63  
         
Item 9B.   Other Information 63  
         
Part III        
         
Item 10.   Directors and Executive Officers of the Registrant 64  
         
Item 11.   Executive Compensation 66  
         
Item 12.   Security Ownership of Certain Beneficial Owners and Management and Related Security Holder Matters 67  
         
Item 13.   Certain Relationships and Related Transactions 67  
         
Item 14.   Principal Accountant Fees and Services 68  
         
Part IV        
         
Item 15.   Exhibits, Financial Statement Schedules, and Reports on Form 8-K 69  
       
Signatures 70  

 

 

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Part I

 

Item 1. Business

 

Kaanapali Land, LLC ("Kaanapali Land"), a Delaware limited liability company, is the reorganized entity resulting from the Joint Plan of Reorganization of Amfac Hawaii, LLC (now known as KLC Land Company, LLC ("KLC Land")), certain of its subsidiaries (together with KLC Land, the "KLC Debtors") and FHT Corporation ("FHTC" and, together with the KLC Debtors, the "Debtors") under Chapter 11 of the Bankruptcy Code, dated June 11, 2002 (as amended, the "Plan"). As indicated in the Plan, Kaanapali Land has elected to be taxable as a corporation.

 

The Plan was confirmed by the Bankruptcy Court by orders dated July 29, 2002 and October 30, 2002 (collectively, the "Order") and became effective November 13, 2002 (the "Plan Effective Date"). During August 2005, pursuant to a motion for entry of final decree, the bankruptcy cases were closed. References in this Form 10-K to Kaanapali Land or the Company for dates on or after the Plan Effective Date are to the entity surviving the Plan Effective Date under the Plan and for dates before the Plan Effective Date are to predecessor entities, unless otherwise specified.

 

KLC Land (formerly known as Amfac Hawaii, LLC and, previously, Amfac/JMB Hawaii, LLC) is a Hawaii limited liability company that is a wholly-owned subsidiary of Kaanapali Land. KLC Land and Kaanapali Land have continued the businesses formerly conducted by KLC Land and Northbrook Corporation, a Delaware corporation ("Northbrook") and their subsidiaries prior to the bankruptcy, although some of such businesses have been discontinued or reduced in scope as described herein.

 

Northbrook was formed in 1978 as a holding company to facilitate the purchase of a number of businesses, generally relating to short line railroads, rail car leasing and light manufacturing. Over 90% of the stock of Northbrook was purchased by persons and entities affiliated with JMB Realty Corporation, through a series of stock purchases in 1987 and 1988. One of Northbrook's subsidiaries (later merged into Northbrook) purchased the stock of Amfac, Inc. ("Amfac"), in 1988, pursuant to a public tender offer, and thus Amfac became an indirect subsidiary of Northbrook at such time. As a consequence of the merger of Amfac into Northbrook in 1995, KLC Land, FHTC and Amfac's other direct subsidiaries became direct subsidiaries of Northbrook. All existing shareholders of Northbrook contributed their shares to Pacific Trail Holdings, LLC ("Pacific Trail") in 2000. Pursuant to the Plan, Northbrook was merged into FHTC and FHTC was thereafter merged into Kaanapali Land in November 2002.

 

Kaanapali Land's subsidiaries include the Debtors as reorganized under the Plan, certain subsidiaries of KLC Land that were not debtors (the "Non-Debtor KLC Subsidiaries") and other former subsidiaries of Northbrook (collectively with Kaanapali Land, all the Reorganized Debtors, the Non-Debtor KLC Subsidiaries and such other subsidiaries are referred to herein as the "Company").

 

The Company operates in two primary business segments: (i) Property and (ii) Agriculture. The Company operates through a number of subsidiaries, each of which is owned directly or indirectly by Kaanapali Land, LLC.

 

Material aspects of the history and business of the Company, the Plan, the procedures for consummating the Plan and the risks attendant thereto were set forth in a Second Amended Disclosure Statement With Respect to Joint Plan of Reorganization of Amfac Hawaii, LLC, Certain of Its Subsidiaries and FHT Corporation Under Chapter 11 of the Bankruptcy Code, dated June 11, 2002 (the "Disclosure Statement"). The Disclosure Statement and the Plan are each filed as Exhibits to Kaanapali Land's Form 10 filed on May 1, 2003 and incorporated herein by reference.

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All claims against the Debtors were deemed discharged as of the Plan Effective Date.

 

The Limited Liability Company Agreement of Kaanapali Land (the "LLC Agreement") provided for two classes of membership interests, "Class A Shares" and "Class B Shares", which had substantially identical rights and economic value under the LLC Agreement; except that holders of Class A Shares were represented by a "Class A Representative" who was required to approve certain transactions proposed by Kaanapali Land before they could be undertaken. The Class A Representative was further entitled to receive certain reports from the Company and meet with Company officials on a periodic basis. Reference is made to the LLC Agreement for a more detailed discussion of these provisions. Class B Shares were held by Pacific Trail and various entities and individuals that are affiliated or otherwise associated with Pacific Trail. Class A Shares were issued under the Plan to claimants who had no such affiliation. Reference is made to Item 10 below for a further explanation of the LLC Agreement.

 

Kaanapali Land distributed in the aggregate, approximately $1.8 million in cash and approximately 161,100 Class A Shares on account of the claims that were made under the Plan and has no further obligations to make any further distributions under the Plan.

 

Kaanapali Land issued all Class B Shares required to be issued under the Plan to Pacific Trail and those entities and individuals that were entitled to Class B Shares. As a consequence, Kaanapali Land had approximately 1,631,513 Class B Shares outstanding.

 

Pursuant to the LLC Agreement, the Class A Shares and Class B Shares were automatically redesignated as Common Shares on November 15, 2007. Accordingly, the Company's Class A Shares and Class B Shares ceased to exist separately on November 15, 2007. On April 15, 2008, the Company entered into an agreement with Stephen Lovelette ("Lovelette"), an executive vice president of the Company in charge of the Company's development activities, whereby the Company agreed to issue up to 52,000 shares of a new class of common shares (the "Class C Shares") in consideration for his services to the Company. The Class C Shares have the same rights as the Shares except that the Class C Shares will not participate in any distributions until the holders of the Shares have received aggregate distributions equal to $19 per Share, subject to customary antidilution adjustments. As of December 31, 2013, the Company had approximately 1,792,613 Common shares and 52,000 Class C Shares Outstanding.

 

KLC Land is the direct subsidiary of Kaanapali Land through which the Company conducts substantially all of its remaining operations. KLC Land conducts substantially all of its business through various subsidiaries. Those with remaining assets of significant net value include KLC Holding Corp. ("KLC"), Pioneer Mill Company, LLC ("PMCo"), Kaanapali Land Management Corp. ("KLM" fka Kaanapali Development Corp.), PM Land Company, LLC. and KCF-1, LLC. In 2013, the Kaanapali Coffee Farms Lot Owners’ Association was consolidated with the interests of third party owners reflected as non controlling interests.

 

All dollar amounts are in thousands of dollars unless otherwise noted.

5 

 

Property

 

Project Planning and Development. The Company's real estate development approach, for land that it holds for development rather than investment, is designed to enhance the value of its properties in phases. In most instances, the process begins with the preparation of market and feasibility studies that consider potential uses for the property, as well as costs associated with those uses. The studies consider factors such as location, physical characteristics, demographic patterns, anticipated absorption rates, transportation, infrastructure costs, both on site and offsite, and regulatory and environmental requirements.

 

For any property targeted for development, the Company will generally prepare a land plan that is consistent with the findings of the studies and then commence the process of applying for the entitlements necessary to permit the use of the property in accordance with the land plan. The length and difficulty of obtaining the requisite entitlements by government agencies, as well as the cost of complying with any conditions attached to the entitlements, are significant factors in determining the viability of the Company's projects. Applications for entitlements may include, among other things, applications for state land use reclassification, county community plan amendments and changes in zoning.

 

Kaanapali 2020. The Company's developable lands are located on the west side of the Island of Maui in the State of Hawaii. The majority of the developable lands are located near to the Kaanapali resort area. The Kaanapali development lands have been the subject of a community-based planning process that commenced in 1999 for the Kaanapali 2020 Development Plan. The Kaanapali 2020 Development Plan includes a mix of resort recreation, residential units and some commercial and recreational development sites, as well as affordable housing. While the oceanfront resort properties have been sold, most of the other Kaanapali 2020 lands continue to be owned by the Company. Any development plan for any of the Company's land, including the Kaanapali 2020 Development Plan and the Wainee development, will be subject to approval and regulation by various state and county agencies and governing entities, especially insofar as the nature and extent of zoning, and improvements necessary for site infrastructure, building, transportation, water management, environmental and health are concerned. In Hawaii, the governmental entities have the right to impose limits or controls on growth in their communities through restrictive zoning, density reduction, impact fees and development requirements, which may materially affect utilization of the land and the costs associated with developing the land. In addition, Maui County currently requires certain percentages and levels of affordability to be included in proposed residential developments or subdivisions of land, thereby affecting the feasibility of these projects. There can be no assurance that the Company will be successful in obtaining the necessary zoning and related entitlements for development of any currently unentitled Maui lands. At this time, the only Kaanapali 2020 lands that have sufficient entitlements to commence development are those in Phase I of the Kaanapali Coffee Farms development and the Puukolii Village development, as described below.

6 

 

The current regulatory approval process for a development project takes a number of years or more and involves substantial expense. The applications generally require the submission of comprehensive plans that involve the use of consultants and other professionals. A substantial portion of the Company's Kaanapali 2020 land will require state district boundary amendments and county general plan and community plan amendments, as well as rezoning approvals. There is no assurance that all necessary approvals and permits will be obtained with respect to the current projects or future projects of the Company. Generally, entitlements are extremely difficult to obtain in Hawaii. There is often significant opposition to proposed developments from numerous local groups, environmental organizations, various community and civic groups, condominium associations and politicians advocating no-growth policies, among others. Any such group with standing can challenge submitted applications, which may substantially delay the process. Generally, once the applications are deemed acceptable, the various governing agencies involved in the entitlement process commence consideration of the requested entitlements. The applicable agencies often impose conditions, which may be costly and time consuming, on any approvals of the entitlements. The substantial time and expense of obtaining entitlements and the uncertainty of success in obtaining the entitlements could have a material adverse effect on the Company's success.

 

At the state level, all land in Hawaii is divided into four land use classifications: urban, rural, agricultural and conservation. The majority of the Kaanapali 2020 Development Plan land is currently classified as either agricultural or conservation.

 

A relatively small portion (approximately 300 acres) of the Kaanapali 2020 Development Planning area owned by the Company, known as Puukolii Village, comprised of two parcels known as the Puukolii Triangle and Puukolii Mauka, received entitlements in 1993 under the terms of a superseded law that fast tracked entitlements for planned mixed use developments that contained the requisite percentage of affordable housing units. The requirements imposed on the Company relative to these entitlements proved uneconomic and thus the developments were not pursued. The Company proposed revisions to certain entitlement conditions as well as the development agreement with the applicable state agencies and is beginning to plan for the development of the Puukolii Mauka area, which will, if ultimately developed, include certain affordable and market housing units, a small commercial area, a school, a park and associated improvements. From 2007 through 2009, the Company received various approvals of its proposed revisions of entitlement conditions and of the development agreement.

 

Despite the hurdles mentioned above, the Company remains hopeful that it will generally be able to develop that portion of its land for which it can obtain classification as an urban district from the State Land Use Commission. However, it is uncertain whether the Company will be able to obtain all necessary entitlements or, if so, how long it will take, and it cannot be predicted what the market will be for such land (or the associated development costs) at such time. Conservation land is land that has been considered by the state as necessary for preserving natural conditions as well as to protect water resources and cannot be developed. Lands within agricultural and rural districts have limited development potential, especially as it relates to density and use. Pursuant to the Kaanapali 2020 Development Plan, the Company intends to apply to the State Land Use Commission for reclassification of a portion of the agricultural lands to urban, and perhaps some rural, but does not intend to apply for reclassification of the conservation lands.

7 

 

During 2012, Maui County updated its General Plan which projects general growth of the County over the next few decades. This update included a new component with maps which show directed growth areas. The Company successfully lobbied the County of Maui to recognize the Kaanapali 2020 Development Plan and Wainee Development Plan within the urban growth limits identified in these directed growth maps. Development of the Kaanapali 2020 lands in accordance with the Kaanapali 2020 Development Plan will require, in addition to State Land Use reclassification of some of the land from agriculture to urban, appropriate designation under County community plan, and the appropriate County zoning designation included in the Maui County General Plan noting it as an urban growth area. Obtaining any and all of these approvals can involve a substantial amount of time and expense, and approvals may need to be resubmitted if there is any subsequent, material deviation in current approved plans or significant objections by the responsible government agencies.

 

In connection with seeking approvals from regulatory authorities of the Kaanapali 2020 Development Plan, the Company may be required to make significant improvements in public facilities (such as roads), to dedicate property for public use, to provide employee/affordable housing units and to make other concessions, monetary or otherwise. The ability of the Company to perform its development activities may also be adversely affected by restrictions that may be imposed by government agencies and the surrounding communities because of inadequate public facilities, such as roads, water management areas and sewer facilities, and by local opposition to continued growth. However, as part of the Kaanapali 2020 Development Plan, the Company has included a number of community members and local government officials in the development planning process and has earned significant community support for its preliminary Kaanapali 2020 and Wainee development plans. It also believes that it enjoys general local community support for its new Puukolii Mauka concept. The Company hopes that carrying on with this process will continue to generate substantial support from local government and the community for the Company's development plans.

 

There can be no assurance that all necessary approvals will be obtained, that modifications to those plans will not require additional approvals, or that such additional approvals will be obtained, nor can there be any assurance as to the timing of such events.

 

In September 2014, Kaanapali Land Management Corp. (“KLMC”), pursuant to a property and option purchase agreement with an unrelated third party, closed on the sale of an approximate 14.9 acre parcel in West Maui. The purchase price was $3,300, paid in cash at closing. The agreement commits KLMC to fund up to between $803 and $1,008, depending on various factors, for off-site roadway, water, sewer and electrical improvements that will also provide service to other KLMC properties. The purchaser was also granted an option for the purchase of an adjacent site of approximately 18.5 acres for $4,078, of which $525 was paid in cash upon the closing of the 14.9 acre site. The nonrefundable $525 option payment can be applied to the purchase of the 18.5 acre site. The option expires in September 2017. The 14.9 acre site is intended to be used for a hospital, skilled nursing facility, assisted living facility, and medical offices, and the option site is intended to be used for other medical and health related facilities.

 

In October 2014, through a limited liability company of which KLMC was the manager, a sale was made to an unrelated third party of an approximate 7.65 acre parcel in West Maui commonly referred to as Lot 10-H. KLMC received proceeds from the sale of approximately $1,300.

 

Kaanapali Land Management Corp. (KLMC) is a party to an agreement with the State of Hawaii for the development of the Lahaina Bypass Highway. An approximate 2.4 mile portion of this two lane state highway has been completed. The more significant portion remains uncompleted.

8 

 

Under certain circumstances, which have not yet occurred, KLMC remains committed for approximately $1.1 million of various future costs relating to the planning and design of the uncompleted portion of the Bypass Highway. Under certain conditions, which have not yet been met, KLMC has agreed to contribute an amount not exceeding $6.7 million toward construction costs. Any such amount contributed would be reduced by the value of KLMC’s land actually contributed to the State for the Bypass Highway.

 

These potential commitments have not been reflected in the accompanying consolidated financial statements. While the completion of the Bypass Highway would add value to KLMC’s lands north of the town of Lahaina, there can be no assurance that it will be completed or when any future phases will be undertaken.

 

During the first quarter of 2006, the Company received final subdivision approval on an approximate 336 acre parcel in the region "mauka" (toward the mountains) from the main highway serving the area. This project, called Kaanapali Coffee Farms, consists of 51 agricultural lots, which are currently being offered to individual buyers. The land improvements were completed during 2008. In conjunction with the sale of four lots sold in 2013, in addition to cash proceeds, the Company received promissory notes totaling $1,208, which are included in other assets in the consolidated balance sheet at December 31, 2013. As of December 31, 2013, the Company sold 18 of the 51 lots at Kaanapali Coffee Farms. In the first quarter of 2014, three additional lots were sold. In the second quarter of 2014, seven lots were sold and in the fourth quarter of 2014, three lots were sold. In 2015, two lots were sold in the first quarter, one was sold in the second quarter and one in the third quarter. In conjunction with the sale of four of the lots sold in 2014, in addition to cash proceeds, the Company received promissory notes. As of November 1, 2015, $1,208 remains outstanding.

 

Other Maui Property. The Company owns approximately 19 acres in Lahaina, known as the Pioneer Mill Site, which is zoned for industrial development. This is the former site of Pioneer Mill's sugar mill on Maui and continues to be the site of the coffee mill operation. In addition, portions of this parcel are subject to various short-term license agreements with third parties that generate minor amounts of income for the Company. Pioneer Mill is currently evaluating strategic options relating to this site.

 

On December 23, 2015 Pioneer Mill Company, LLC entered into a property purchase agreement with an unrelated third party for the sale of an approximate 19 acre site in Lahaina, known as the Pioneer Mill Site. The agreement, which calls for a purchase price of $20.5 million and has a scheduled closing date of April 30, 2016, has significant conditions to closing, including investigation and evaluation by the purchaser during the due diligence period. Accordingly there can be no assurance that the sale will be completed under the existing or any other terms. If the agreement is consummated, the Company will likely incur significant costs for the relocation of certain buildings and equipment on the property and be subject to certain warranties and representations that will survive the closing of the transaction. If closing were to occur, all net proceeds are expected to be retained by the Company for future working capital and other needs.

 

9 

The Company also owns several parcels, known collectively as the "Wainee Lands", which are located in Lahaina south of the mill site. The Wainee Lands include approximately 235 acres and are classified and zoned for agricultural use and will need to obtain land use and zoning reclassification in order to proceed with any development. Most of the Wainee Lands have been included in the Maui County General Plan. The Company is conducting various meetings with the West Maui community, public officials and consultants to determine a plan for a portion of their lands. While it is likely that this development, if pursued, will contain a significant affordable housing component as required by county ordinance, the Company believes that these lands may be available for a number of uses compatible with the close proximity of them to the center of Lahaina, including both affordable and market housing and certain recreational and service uses. However, government planned infrastructure in this area is necessary, particularly a major storm drainage improvement referred to as the Lahaina Flood Control Channel, for which there is currently no government commitment of construction funding. Therefore, the Company is considering several options for this land. The Company has been engaged in numerous legal actions to quiet title to its Wainee lands as a necessary predicate to such development. While such cases have generally been contested, the Company has been successful in the cases completed so far. There can be no assurances that any actions, not yet filed, will permit the Wainee development to go forward on an economic basis.

 

Agriculture

 

Historic Operations. A significant portion of the Company's revenues were formerly derived from agricultural operations primarily consisting of the cultivation, milling and sale of raw sugar. The last remaining operating sugar plantation of the Company, owned by a subsidiary of Kaanapali Land, was shut down at the end of 2000.

 

Coffee Operations. Agricultural operations now consist of cultivation, milling and sale of coffee. The Company has entered into certain consulting and marketing arrangements in this regard.

 

Seed Crop Operations. The Company's seed crop operations (primarily corn but also other crops such as soy beans) were located on former Maui sugar lands that are now part of the Kaanapali 2020 area. The Company earned a modest income, under a contract with Monsanto Seed Company to grow seed corn according to Monsanto's specifications. The contract expired June 30, 2012. The Company is exploring alternative agricultural operations, but there can be no assurances that replacement operations at any level will result.

 

Other Property

 

In October 2011, the Company sold an approximate 68 acre gulch property located adjacent to the Waikele Golf course to an unaffiliated third party for $0.8 million, resulting in an approximate gain of $0.2 million. This was the Company’s last remaining property on Oahu other than several remnant parcels.

 

For a description of financial information by segment, please read Note 8 to the attached consolidated financial statements, which information is incorporated herein by reference.

 

Significant Asset Sales

 

The Company has in the past consummated various strategic sales of bulk land. These transactions were generally pursued in order to raise additional cash that would enhance the Company's ability to fund the Kaanapali 2020 developments including, but not limited to Kaanapali Coffee Farms, and other Company overhead costs. The Company currently has no outstanding agreements for the sale of land in bulk, but while this is not the current focus of the Company, it does from time to time in the ordinary course of business engage in discussions with third parties who may be interested in certain parcels.

 

10 

Employees

 

At December 1, 2015, Kaanapali Land and its subsidiaries had employed 20 full time employees. Certain corporate services are provided by Pacific Trail and its affiliates. Kaanapali Land reimburses for these services and related overhead at cost.

 

Trademarks and Service Marks

 

The Company maintains a variety of trademarks and service marks that support each of its business segments. These marks are filed in various jurisdictions, including the United States Patent and Trademark Office, the State of Hawaii Department of Commerce and Consumer Affairs and foreign trademark offices. The trademarks and service marks protect, among other things, the use of the term "Kaanapali" and related names in connection with the developments in the vicinity of the Kaanapali Resort area on Maui and the various trade names and service marks obtained in connection with the Company's coffee operations. Certain trademarks, trade names and service marks have also been registered in connection with the Kaanapali Coffee Farms development. Also protected are certain designs and logos associated with the names protected. Certain marks owned by the Company have been licensed to third parties, however, the income therefrom is not material to the Company's financial results. To the extent deemed advantageous in connection with the Company's ongoing businesses, to satisfy contractual commitments with respect to certain marks or where the Company believes that there are future licensing opportunities with respect to specific marks, the Company intends to maintain such marks to the extent necessary to protect their use relative thereto. The Company also intends to develop and protect appropriate marks in connection with its future land development and agricultural activities.

 

Market Conditions and Competition

 

There are a number of factors that historically have negatively impacted Kaanapali Land's property activities, including market conditions, the difficulty in obtaining regulatory approvals, the high cost of required infrastructure and the Company's operating deficits in its other business segments. As a result, the planned use of many of the Company's land holdings and the ability to generate cash flow from these land holdings have become long-term in nature, and the Company has found it necessary to sell certain parcels in order to raise cash rather than realize their full economic potential through the entitlement process.

 

Maui's residential real estate market experienced a dramatic slow down beginning in the latter part of 2005. The international credit crisis resulted in both national and global economic downturns and had a significant adverse impact on the Hawaiian economy. Market conditions have moved in a positive direction in 2013 and to date in 2015, however, there can be no assurance that such conditions will continue. A weakening of the Maui real estate market would negatively impact the Company.

 

There are several developers, operators, real estate companies and other owners of real estate that compete with the Company in its property business on Maui, many of which have greater resources. The number of competitive properties in a particular market could have a material adverse effect on the Company's success. In addition, many properties previously purchased by retail buyers are listed for resale and provide additional competition to the Company.

11 

 

Government Regulations and Approvals

 

The current regulatory approval process for a project can take many years and involves substantial expense. There is no assurance that all necessary approvals and permits will be obtained with respect to the Company's current and future projects. Generally, entitlements are extremely difficult to obtain in Hawaii. Many different agencies at the state and county level are involved in the entitlement process. There is often significant opposition from numerous local groups - including environmental organizations, various community and civic groups, condominium associations and politicians advocating no-growth policies, among others. Certain ordinances adopted by the County of Maui have placed additional requirements on developers, some of which may be difficult or expensive to satisfy. Other proposed ordinances that have not yet passed may place moratoria on new development. It is currently unknown to what extent new legislative initiatives will impact the cost or timing of the Company's planned developments.

 

Currently, Kaanapali Land is preparing applications for the necessary entitlements to carry out the Kaanapali 2020 plan. While some of these lands have some form of entitlements, it is anticipated that at least a substantial portion of the land will require state district boundary amendments and Community Plan amendments, as well as rezoning approvals. In January 2009 the Company received approval of revisions to its development plans for the Puukolii Village Mauka parcel. Entitlements for an agricultural subdivision were received during the first quarter of 2006. The Kaanapali 2020 Development Plan and most of the Wainee Lands are recognized within the urban growth areas identified in the growth maps of the Maui County General Plan. Approximately 1,500 acres of the Company's Maui land which is contiguous to Kaanapali 2020 land is located toward the top of mountain ridges and in gulches is classified as conservation, which precludes most other use. This conservation land, and other land that will be designated as open space, is an important component of the overall project, allowing for the protection of water and other natural resources, and its existence is expected to influence obtaining the entitlements for the remaining land.

 

Environmental Matters

 

The Company is subject to environmental and health safety laws and regulations related to the ownership, operation, development and acquisition of real estate, or the operation of former business units. Under those laws and regulations, the Company may be liable for, among other things, the costs of removal or remediation of certain hazardous substances. In addition, the Company may find itself having to defend against personal injury lawsuits based on exposure to such substances including asbestos related liabilities. Those laws and regulations often impose liability without regard to fault. The Company is now engaged in work at a site on the Waipio Peninsula consisting of, among other things, performing testing at the site pursuant to an order discussed in Item 3. Legal Proceedings. The Company believes that the cost of this work pursuant to the order will not be material to the Company as a whole; however, in the event that the EPA were to issue an order requiring remediation of the site, there can be no assurance that the cost of remediation of the site would not ultimately have a material adverse effect on the Company. In addition, if there is litigation regarding the site, there can be no assurance that the cost of such litigation will not be material or that such litigation will result in a judgment in favor of the Company. With regard to other environmental matters as generally described in the risk factors set forth below, no assurance can be given that those matters will not have a material adverse effect on the Company’s consolidated financial position or results of operations. Reference is made to Item 1A. Risk Factors and Item 3. Legal Proceedings for a description of certain legal proceedings related to environmental conditions.

 

12 

 

Item 1A. Risk Factors

 

Kaanapali Land faces numerous risks, including those set forth below. The risks described below are not the only risks that the Company faces, nor are they listed in order of significance. Risk factors include a number of factors that could negatively impact Kaanapali Land's property activities. Any of the risks may have a material adverse effect on the Company's success, consolidated financial position or results of operations.

 

Reference is made to Item 1. Business and Item 3. Legal Proceedings for an item specific detailed discussion of some of the risk factors facing Kaanapali Land, LLC.

 

Risks Related to Hawaiian Real Estate and Development Markets

 

The Kaanapali 2020 Development Plan (including, without limitation, Kaanapali Coffee Farms and Puukolii Mauka) and the development of the Wainee land, as well as the Company's other development activities, are, apart from the risks associated with the entitlement process described above, subject to the risks generally incident to the ownership and development of real property. These include the possibility that cash generated from sales will not be sufficient to meet the Company's continuing obligations. This could result from inadequate pricing or pace of sales of properties or changes in costs of construction or development; increased government mandates; adverse changes in Hawaiian economic conditions, such as increased costs of labor, marketing and production, restricted availability of financing; adverse changes in local, national and/or international economic conditions (including adverse changes in exchange rates of foreign currencies for U.S. dollars); adverse effects of international political events, such as additional terrorist activity in the U.S. or abroad that lessen travel, tourism and investment in Hawaii; the need for unanticipated improvements or unanticipated expenditures in connection with environmental matters; changes in real estate tax rates and other expenses; delays in obtaining permits or approvals for construction or development and adverse changes in laws, governmental rules and fiscal policies; acts of God, including earthquakes, volcanic eruptions, floods, droughts, fires, tsunamis, unusually heavy or prolonged rains, and hurricanes; and other factors which are beyond the control of the Company. Because of these risks and others, real estate ownership and development is subject to unexpected increases in costs.

 

The Company may, from time to time and to the extent economically advantageous, sell rezoned, undeveloped or partially developed parcels, such as portions of the Kaanapali 2020 Development Plan lands, the former Pioneer Mill site and/or the Wainee land. It intends to develop the balance of its lands for residential, resort, affordable housing, limited commercial and recreational purposes.

 

Any increase in interest rates or downturn in the international, national or Hawaiian economy could affect the Company's profitability and sales. The downturn in the Asian economy, particularly the Japanese economy, has had a profound effect on the Hawaiian real estate market. However, the Kaanapali resort area has historically enjoyed a significant mainland tourist market in the United States and Canada, which had resulted, beginning in the late 1990's, in a strong market for resort housing in the area. Markets turned down significantly beginning in late 2005, which negatively impacted the volume of transactions completed in West Maui. The severe national and global recession had an adverse impact on the Hawaiian economy and adversely impacted the Company's pricing for its residential properties. The restricted availability of financing continues to negatively impact the number of lot sales to date and could continue to negatively impact the lot sales in the foreseeable future. A weakening of the Maui real estate market would negatively impact the Company. Market conditions have moved in a positive direction in 2013 and to date in 2015, however, there can be no assurance that such conditions will continue.

13 

 

The Company's real estate activities may be adversely affected by possible changes in the tax laws, including changes which may have an adverse effect on resort and residential real estate development. High rates of inflation adversely affect real estate development generally because of their impact on interest rates. High interest rates not only increase the cost of borrowed funds to developers, but also have a significant effect on the affordability of permanent mortgage financing to prospective purchasers. High rates of inflation may permit the Company to increase the prices that it charges in connection with land sales, subject to economic conditions in the real estate industry generally and local market factors. There can be no assurance that Hawaiian real estate values will rise, or that, if such values do rise, the Company's properties will benefit.

 

Risks Relating to Natural Events

 

The Company's development lands are located in an area that is susceptible to hurricanes and seismic activity. In addition, during certain times of year, heavy rainfall is not uncommon. These events may adversely impact the Company's development activities and infrastructure assets, such as roadways, reservoirs, water courses and drainage ways. Significant events may cause the Company to incur substantial expenditures for investigation and restoration of damaged structures and facilities. Flooding, drought, fires, wind, prolonged heavy rains, and other natural perils can adversely impact agricultural production and water transmission and storage resources on lands owned or used by the Company. In addition, similar events elsewhere in Hawaii may cause regulatory responses that impact all landowners. For example, the Company received notice from the Hawaii Department of Land and Natural Resources ("DLNR") that DNLR on a periodic basis would inspect all significant dams and reservoirs in Hawaii, including those maintained by the Company on Maui in connection with its agricultural operations. A series of such inspections have taken place over the period from 2006 through the most recent inspections that occurred in January 2013. To date, the DLNR has cited certain deficiencies concerning two of the Company’s reservoirs relating to dam and reservoir safety standards established by the State of Hawaii. These deficiencies include, among other things, vegetative overgrowth, erosion of slopes, uncertainty of inflow control, spillway capacity, and freeboard. The Company has taken certain corrective actions as well as updating important plans to address emergency events and basic operations and maintenance. In 2012, the State of Hawaii issued new Hawaii Administrative Rules for Dams and Reservoirs which require dam owners to obtain from DLNR Certificates of Impoundment (“permits”) to operate and maintain dams or reservoirs. Obtaining such permits requires owners to completely resolve all cited deficiencies. Therefore, the process may involve further analysis of dam and reservoir safety requirements, which would likely involve hiring specialized engineering consultants, and ultimately could result in significant and costly improvements which may be material to the Company.

 

The DLNR categorizes the reservoirs as "high hazard" under State of Hawaii Administrative Rules and State Statutes concerning dam and reservoir safety. This classification, which bears upon government oversight and reporting requirements, may increase the cost of managing and maintaining these reservoirs in a material manner. The Company does not believe that this classification is warranted for either of these reservoirs and has initiated a dialogue with DLNR in that regard. In April 2008 the Company received further correspondence from DLNR that included the assessment by their consultants of the potential losses that result from the failure of these reservoirs. In April 2009, the Company filed a written response to DLNR to correct certain factual errors in its report and to request further analysis on whether such "high hazard" classifications are warranted. It is unlikely that the “high hazard” designation will be changed.

 

14 

 

Risks Relating to Agriculture

 

While agricultural operations are relatively insignificant to the Company's financial success, competition in the agriculture business segment affects the prices the Company may obtain for the land and other assets it may lease to third parties for the production of agricultural products. The Company formerly earned a modest profit on its contract with Monsanto for the production of seed corn on a portion of its Kaanapali 2020 Development Plan land. The contract with Monsanto expired June 30, 2012. The Company is exploring alternative agricultural operations, but there can be no assurance that replacement operations at any level will result. The Company remains engaged in farming, harvesting and milling operations relating to coffee orchards. The Company incurs significant risks relating to the cost of growing and maintaining the trees and producing the crop, as well as the market risk attendant to the sale of the crop.

 

Risks Relating to Hawaiian, U.S. and World Economies Generally

 

The Company's businesses will be subject to risks generally confronting the Hawaiian, U.S. and world economies. All of the Company's tangible property is located in Hawaii. As a result, the Company's revenues will be exposed to the risks of investment in Hawaii and to the economic conditions prevalent in the Hawaiian real estate market. While the Hawaiian real estate market is subject to economic cycles that impact tourism and investment (particularly in the United States, Japan and other Pacific Rim countries), it is also influenced by the level of economic development in Hawaii generally and by external and internal political forces.

 

Various factors impact the desire of people to travel, particularly by air. Discretionary income and unemployment throughout the world also impact travel to Hawaii and the market for real estate. Thus, Hawaii is subject to higher risks than other portions of the United States due to its disproportionate reliance on air travel and tourism. The visitor industry is Hawaii's most important source of economic activity, accounting for a significant portion of Gross State Product.

 

Because of the foregoing considerations, it is clear that the risks associated with the large reliance by Hawaii on a visitor base, both from foreign countries and the United States mainland, will disproportionately impact the Company in future years, as market and visitation cycles play out.

15 

 

Environmental Risks and Environmental Regulations

 

The Company is subject to environmental and health safety laws and regulations related to the ownership, operation, development and acquisition of real estate, or the operation of former business units. Under various federal, state and local laws, ordinances and regulations, a current or previous owner, developer or operator of real estate may be liable for the costs of removal or remediation of certain hazardous toxic substances at, on, under or in its property. The costs of such removal or remediation of such substances could be substantial. Such laws often impose liability without regard to whether the owner or operator knew of, or was responsible for, the actual release or presence of such hazardous or toxic substances. The presence of such substances may adversely affect the owner's ability to sell or rent such real estate or to borrow using such real estate as collateral. Persons who arrange for the disposal or treatment of hazardous or toxic substances also may be liable for the costs of removal or remediation of such substances at the disposal or treatment facility, whether or not such facility is owned or operated by such person. Certain environmental laws impose liability for the release of asbestos containing material into the air, pursuant to which third parties may seek recovery from owners or operators of real properties for personal injuries associated with such materials, and prescribe specific methods for the removal and disposal of such materials. The cost of legal counsel and consultants to investigate and defend against these claims is often high and can significantly impact the Company's operating results, even if no liability is ultimately shown. No assurance can be given that the Company will not incur liability in the future for known or unknown conditions and any significant claims may have a material adverse impact on the Company.

 

 

Item 1B. Unresolved Staff Comments

 

Not Applicable.

 

 

Item 2. Properties

 

Land Holdings

 

The major real properties owned by the Company are described under Item 1. Business.

 

16 

 

Item 3. Legal Proceedings

 

Material legal proceedings of the Company are described below. Unless otherwise noted, the parties adverse to the Company in the legal proceedings described below have not made a claim for damages in a liquidated amount and/or the Company believes that it would be speculative to attempt to determine the Company's exposure relative thereto, and as a consequence believes that an estimate of the range of potential loss cannot be made. Any claims that were not filed on a timely basis under the Plan have been discharged by the Bankruptcy Court and thus the underlying legal proceedings should not result in any liability to the Debtors. All other claims have been satisfied. Proceedings against subsidiaries or affiliates of Kaanapali Land that are not Debtors were not stayed by the Plan and may proceed. However, two such subsidiaries, Oahu Sugar Company, LLC (“Oahu Sugar”) and D/C Distribution Corporation (“D/C”), filed subsequent petitions for liquidation under Chapter 7 of the bankruptcy code in April 2005 and July 2007, respectively), as described below. As a consequence of the Chapter 7 filings, both subsidiaries are not under the control of the Company.

 

As a result of an administrative order issued to Oahu Sugar by the Hawaii Department of Health (“HDOH”), Order No. CH 98-001, dated January 27, 1998, Oahu Sugar was engaged in environmental site assessment of lands it leased from the U.S. Navy and located on the Waipio Peninsula. Oahu Sugar submitted a Remedial Investigation Report to the HDOH. The HDOH provided comments that indicated that additional testing might be required. Oahu Sugar responded to these comments with additional information. On January 9, 2004, the Environmental Protection Agency (“EPA”) issued a request to Oahu Sugar seeking information related to the actual or threatened release of hazardous substances, pollutants and contaminants at the Waipio Peninsula portion of the Pearl Harbor Naval Complex National Priorities List Superfund Site. The request sought, among other things, information relating to the ability of Oahu Sugar to pay for or perform a clean up of the land formerly occupied by Oahu Sugar. Oahu Sugar responded to the information requests and had notified both the Navy and the EPA that while it had some modest remaining cash that it could contribute to further investigation and remediation efforts in connection with an overall settlement of the outstanding claims, Oahu Sugar was substantially without assets and would be unable to make a significant contribution to such an effort. Attempts at negotiating such a settlement were fruitless and Oahu Sugar received an order from EPA in March 2005 that would purport to require certain testing and remediation of the site. As Oahu Sugar was substantially without assets, the pursuit of any action, informational, enforcement, or otherwise, would have had a material adverse effect on the financial condition of Oahu Sugar. Counsel for the trustee, EPA, the Navy, and for Fireman’s Fund, one of Kaanapali Land’s insurers, are exploring ways in which to conclude the Oahu Sugar bankruptcy. There are no assurances that such an agreement can be reached.

 

Therefore, as a result of the pursuit of further action by the HDOH and EPA as described above and the immediate material adverse effect that the actions had on the financial condition of Oahu Sugar, Oahu Sugar filed with the United States Bankruptcy Court, Northern District of Illinois, Eastern Division its voluntary petition for liquidation under Chapter 7 of Title 11, United States Bankruptcy Code. Such filing is not expected to have a material adverse effect on the Company as Oahu Sugar was substantially without assets at the time of the filing. While it is not believed that any other affiliates have any responsibility for the debts of Oahu Sugar, the EPA has indicated that it intends to make a claim against Kaanapali Land as further described below, and therefore, there can be no assurance that the Company will not incur significant costs in connection with such claim.

17 

 

The deadline for filing proofs of claim with the bankruptcy court passed in April 2006. Prior to the deadline, Kaanapali Land, on behalf of itself and certain subsidiaries, filed claims that aggregated approximately $224 million, primarily relating to unpaid guarantee obligations made by Oahu Sugar that were assigned to Kaanapali Land pursuant to the Plan on the Plan Effective Date. In addition, the EPA and the U.S. Navy filed a joint proof of claim that seeks to recover certain environmental response costs relative to the Waipio Peninsula site discussed above. The proof of claim contained a demand for previously spent costs in the amount of approximately $.3 million, and additional anticipated response costs of between approximately $2.8 million and $11.5 million. No specific justification of these costs, or what they are purported to represent, was included in the EPA/Navy proof of claim. Due to the insignificant amount of assets remaining in the debtor's estate, it is unclear whether the United States Trustee who has taken control of Oahu Sugar will take any action to contest the EPA/Navy claim, or how it will reconcile such claim for the purpose of distributing any remaining assets of Oahu Sugar.

 

EPA sent three requests for information to Kaanapali Land regarding, among other things, Kaanapali Land's organization and relationship, if any, to entities that may have, historically, operated on the site and with respect to operations conducted on the site. Kaanapali Land responded to these requests for information. By letter dated February 7, 2007, pursuant to an allegation that Kaanapali Land is a successor to Oahu Sugar Company, Limited, a company that operated at the site prior to 1961 ("Old Oahu"), EPA advised Kaanapali that it believes it is authorized by Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) to amend the existing Unilateral Administrative Order against Oahu Sugar Company, LLC, for the clean up of the site to include Kaanapali Land as an additional respondent. The purported basis for the EPA's position is that Kaanapali Land, by virtue of certain corporate actions, is jointly and severally responsible for the performance of the response actions, including, without limitation, clean-up at the site. No such amendment has taken place as of the date hereof. Instead, after a series of discussions between Kaanapali and the EPA, on or about September 30, 2009, the EPA issued a Unilateral Administrative Order to Kaanapali Land for the performance of work in support of a removal action at the former Oahu Sugar pesticide mixing site located on Waipio peninsula. The work consists of the performance of soil and groundwater sampling and analysis, a topographic survey, and the preparation of an engineering evaluation and cost analysis of potential removal actions to abate an alleged "imminent and substantial endangerment" to public health, welfare or the environment. The order appears to be further predicated primarily on the alleged connection of Kaanapali Land to Old Oahu and its activities on the site. Kaanapali Land is currently performing work, including the conduct of sampling at the site, required by the order while reserving its rights to contest liability regarding the site. With regard to liability for the site, Kaanapali Land believes that its liability, if any, should relate solely to a portion of the period of operation of Old Oahu at the site, although in some circumstances CERCLA apparently permits imposition of joint and several liability, which can exceed a responsible party's equitable share. Kaanapali Land believes that the U.S. Navy bears substantial liability for the site by virtue of its ownership of the site throughout the entire relevant period, both as landlord under its various leases with Oahu Sugar and Old Oahu and by operating and intensively utilizing the site directly during a period when no lease was in force. The Company believes that the cost of the work as set forth in the current order will not be material to the Company as a whole; however, in the event that the EPA were to issue an order requiring remediation of the site, there can be no assurances that the cost of said remediation would not ultimately have a material adverse effect on the Company. In addition, if there is litigation regarding the site, there can be no assurance that the cost of such litigation will not be material or that such litigation will result in a judgment in favor of the Company. Currently, Kaanapali and the EPA are exchanging comments relative to further studies to be performed at the site, including a possible ecological risk assessment. Kaanapali expects that after a further review, the next phase is likely a consideration of the remedial alternatives for the Site.

18 

 

On February 11, 2015, the Company filed a complaint for declaratory judgment, bad faith and damages against Fireman’s Fund Insurance Company (“Fireman’s Fund”) in the Circuit Court of the First Circuit, State of Hawaii, Civil No. 15-1-0239-02, in connection with costs and expenses it has incurred or may incur in connection with the Waipio site. In the five-count complaint, the Company seeks, among other things, a declaratory judgment of its rights under various Fireman’s Fund policies and an order that Fireman’s Fund defend and indemnify Kaanapali Land from all past, present and future costs and expenses in connection with the site, including costs of investigation and defense incurred by Kaanapali and the professionals it has engaged. In addition, Kaanapali seeks general, special, and punitive damages, prejudgment and post judgment interest, and such other legal or equitable relief as the court deems just and proper. Fireman’s Fund has not yet filed a responsive pleading. There are no assurances of the amounts of insurance proceeds that may or may not be ultimately recovered.

 

Kaanapali Land, as successor by merger to other entities, and D/C Distribution Corporation ("D/C"), a subsidiary of Kaanapali Land, have been named as defendants in personal injury actions allegedly based on exposure to asbestos. While there are relatively few cases that name Kaanapali Land, there were a substantial number of cases that were pending against D/C on the U.S. mainland (primarily in California). Cases against Kaanapali Land (hereafter, “Kaanapali Land asbestos cases”) are allegedly based on its prior business operations in Hawaii and cases against D/C are allegedly based on the sale of asbestos-containing products by D/C's prior distribution business operations primarily in California. Each entity defending these cases believes that it has meritorious defenses against these actions, but can give no assurances as to the ultimate outcome of these cases. The defense of these cases has had a material adverse effect on the financial condition of D/C as it has been forced to file a voluntary petition for liquidation as discussed below. Kaanapali Land does not believe that it has liability, directly or indirectly, for D/C's obligations in those cases. Kaanapali Land does not presently believe that the cases in which it is named will result in any material liability to Kaanapali Land; however, there can be no assurance in this regard.

 

On February 12, 2014, counsel for Fireman’s Fund, the carrier that has been paying defense costs and settlements for the Kaanapali Land asbestos cases, stated that it would no longer advance fund settlements or judgments in the Kaanapali Land asbestos cases due to the pendency of the D/C and Oahu Sugar bankruptcies. In its communications with Kaanapali Land, Fireman’s Fund expressed its view that the automatic stay in effect in the D/C bankruptcy case bars Fireman’s Fund from making any payments to resolve the Kaanapali Land asbestos claims because D/C Distribution is also alleging a right to coverage under those policies for asbestos claims against it. However, in the interim, Fireman’s Fund advised that it presently intends to continue to pay defense costs for those cases, subject to whatever reservations of rights may be in effect and subject further to the policy terms. Fireman’s Fund has also indicated that to the extent that Kaanapali Land cooperates with Fireman’s Fund in addressing settlement of the Kaanapali Land asbestos cases through coordination with its adjusters, it is Fireman’s Fund’s present intention to reimburse any such payments by Kaanapali Land, subject, among other things, to the terms of any lift-stay order, the limits and other terms and conditions of the policies, and prior approval of the settlements. Kaanapali Land continues to pursue discussions with Fireman’s Fund in an attempt to resolve the issues, however, Kaanapali Land is unable to determine what portion, if any, of settlements or judgments in the Kaanapali Land asbestos cases will be covered by insurance.

19 

 

On February 15, 2005, D/C was served with a lawsuit entitled American & Foreign Insurance Company v. D/C Distribution and Amfac Corporation, Case No. 04433669 filed in the Superior Court of the State of California for the County of San Francisco, Central Justice Center. No other purported party was served. In the eight-count complaint for declaratory relief, reimbursement and recoupment of unspecified amounts, costs and for such other relief as the court might grant, plaintiff alleged that it is an insurance company to whom D/C tendered for defense and indemnity various personal injury lawsuits allegedly based on exposure to asbestos containing products. Plaintiff alleged that because none of the parties have been able to produce a copy of the policy or policies in question, a judicial determination of the material terms of the missing policy or policies is needed. Plaintiff sought, among other things, a declaration: of the material terms, rights, and obligations of the parties under the terms of the policy or policies; that the policies were exhausted; that plaintiff is not obligated to reimburse D/C for its attorneys' fees in that the amounts of attorneys' fees incurred by D/C have been incurred unreasonably; that plaintiff was entitled to recoupment and reimbursement of some or all of the amounts it has paid for defense and/or indemnity; and that D/C breached its obligation of cooperation with plaintiff. D/C filed an answer and an amended cross-claim. D/C believed that it had meritorious defenses and positions, and intended to vigorously defend. In addition, D/C believed that it was entitled to amounts from plaintiffs for reimbursement and recoupment of amounts expended by D/C on the lawsuits previously tendered. In order to fund such action and its other ongoing obligations while such lawsuit continued, D/C entered into a Loan Agreement and Security Agreement with Kaanapali Land, in August 2006, whereby Kaanapali Land provided certain advances against a promissory note delivered by D/C in return for a security interest in any D/C insurance policy at issue in this lawsuit. In June 2007, the parties settled this lawsuit with payment by plaintiffs in the amount of $1.6 million. Such settlement amount was paid to Kaanapali Land in partial satisfaction of the secured indebtedness noted above.

 

Because D/C was substantially without assets and was unable to obtain additional sources of capital to satisfy its liabilities, D/C filed with the United States Bankruptcy Court, Northern District of Illinois, its voluntary petition for liquidation under Chapter 7 of Title 11, United States Bankruptcy Code during July 2007, Case No. 07-12776. Such filing is not expected to have a material adverse effect on the Company as D/C was substantially without assets at the time of the filing. Kaanapali Land filed claims in the D/C bankruptcy that aggregated approximately $26.8 million, relating to both secured and unsecured intercompany debts owed by D/C to Kaanapali Land. In addition, a personal injury law firm based in San Francisco that represents clients with asbestos-related claims, filed proofs of claim on behalf of approximately two thousand claimants. While it is not likely that a significant number of these claimants have a claim against D/C that could withstand a vigorous defense, it is unknown how the trustee will deal with these claims. It is not expected, however, that the Company will receive any material additional amounts in the liquidation of D/C.

20 

 

On or about April 28, 2015, eight litigants who filed asbestos claims in California state court (hereinafter, “Petitioners”) filed a motion for relief from the automatic stay in the D/C bankruptcy (hereinafter “life stay motion”). Under relevant provisions of the bankruptcy rules and on the filing of the D/C bankruptcy action, all pending litigation claims against D/C were stayed pending resolution of the bankruptcy action. In their motion, Petitioners asked the bankruptcy court to lift the stay in the bankruptcy court to name D/C and/or its alternate entities as defendants in their respective California state court asbestos actions and to satisfy their claims against insurance policies that defend and indemnify D/C and/or their alternate entities. The Petitioner’s motion to lift stay thus in part has as an objective ultimate recovery, if any, from, among other things, insurance policy proceeds that were allegedly assets of both the D/C and Oahu Sugar bankruptcy estates. As noted above, Kaanapali, the EPA, and the Navy are claimants in the Oahu Sugar bankruptcy and the Fireman’s Fund policies are allegedly among the assets of the Oahu Sugar bankruptcy estate as well. For this and other reasons, Kaanapali, the EPA and the Navy opposed the motion to lift stay. After briefing and argument, on May 14, 2015, the United States Bankruptcy Court, for the Northern District of Illinois, Eastern Division, in In Re D/C Distribution, LLC, Bankruptcy Case No. 07-12776, issued an order lifting the stay. In the order, the court permitted the Petitioners to “proceed in the applicable nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law. Claimants are entitled to settle or enforce their claims only by collecting upon any available insurance Debtor’s liability to them in accordance with applicable nonbankruptcy law. No recovery may be made directly against the property of Debtor, or property of the bankruptcy estate.” Kaanapali, Fireman’s Fund, and the United States government on behalf of the EPA and the Navy have appealed the decision.

 

The attorneys for the trustee in the D/C bankruptcy have reached out to the various claimants noted above to determine if there is any interest in pursuing a global settlement of the claims in the Oahu Sugar and D/C bankruptcies insofar as the Fireman’s Fund insurance policies are concerned. If such discussions take place, they may involve some form of resolution of Kaanapali’s interest in various of the Fireman’s Fund insurance policies for Kaanapali’s various and future insurance claims. Kaanapali may consider entering into such discussions, but there is no assurance that such discussions will take place or prove successful in resolving any of the claims in whole or in part.

 

On or about February 13, 2013, PM Land Company received demand to mediate a dispute arising in connection with the contract for sale of a lot in the Kaanapali Coffee Farms subdivision. PM Land held the sum of $450,000 as a result of the contract for sale to the claimants that did not proceed to closing. Claimants sought, among other things, cancellation of the contract, the return of the amounts of money still on deposit, treble damages, attorneys’ fees and costs. PM Land Company mediated, settled this matter and retained $150,000 of the deposit.

 

The Company has received notice from DNLR that DNLR on a periodic basis would inspect all significant dams and reservoirs in Hawaii, including those maintained by the Company on Maui in connection with its agricultural operations. A series of such inspections have taken place over the period from 2006 through the most recent inspections that occurred in January 2013. To date, the DLNR has cited certain deficiencies concerning two of the Company’s reservoirs relating to dam and reservoir safety standards established by the State of Hawaii. These deficiencies include, among other things, vegetative overgrowth, erosion of slopes, uncertainty of inflow control, spillway capacity, and freeboard. The Company has taken certain corrective actions as well as updating important plans to address emergency events and basic operations and maintenance. In 2012, the State of Hawaii issued new Hawaii Administrative Rules for Dams and Reservoirs which require dam owners to obtain from DLNR Certificates of Impoundment (“permits”) to operate and maintain dams or reservoirs. Obtaining such permits requires owners to completely resolve all cited deficiencies. Therefore, the process may involve further analysis of dam and reservoir safety requirements, which would likely involve hiring specialized engineering consultants, and ultimately could result in significant and costly improvements which may be material to the Company.

21 

 

The DLNR categorizes the reservoirs as "high hazard" under State of Hawaii Administrative Rules and State Statutes concerning dam and reservoir safety. This classification, which bears upon government oversight and reporting requirements, may increase the cost of managing and maintaining these reservoirs in a material manner. The Company does not believe that this classification is warranted for either of these reservoirs and has initiated a dialogue with DLNR in that regard. In April 2008, the Company received further correspondence from DLNR that included the assessment by their consultants of the potential losses that result from the failure of these reservoirs. In April 2009, the Company filed a written response to DLNR to correct certain factual errors in its report and to request further analysis on whether such "high hazard" classifications are warranted. It is unlikely that the “high hazard” designation will be changed.

 

Other than as described above, the Company is not involved in any material pending legal proceedings, other than ordinary routine litigation incidental to its business. The Company and/or certain of its affiliates have been named as defendants in several pending lawsuits. While it is impossible to predict the outcome of such routine litigation that is now pending (or threatened) and for which the potential liability is not covered by insurance, the Company is of the opinion that the ultimate liability from any of this litigation will not materially adversely affect the Company's consolidated results of operations or its financial condition.

 

The Company often seeks insurance recoveries under its policies for costs incurred or expected to be incurred for losses or claims under which the policies might apply. While payouts from various coverages are being sought and may be recovered in the future, no anticipatory amounts have been reflected in the Company’s consolidated financial statements.

 

 

Item 4. Mine Safety Disclosures

 

None.

22 

 

Part II

 

Item 5.  Market Registrant’s Common Equity, Related Stockholder Matters

               and Issuer Purchases of Equity Securities

 

As of December 31, 2013 there were approximately 688 holders of record of the Company's 1,792,613 Common Shares and 52,000 Class C Shares. The Company has no outstanding options, warrants to purchase or securities convertible into, common equity of the Company. There is no established public trading market for the Company's membership interests. The Company has elected to be treated as a corporation for federal and state income tax purposes. As a consequence, under current law, holders of membership interests in the Company will not receive annual reports or direct allocations of profits or losses relating to the financial results of the Company as they would for the typical limited liability company that elects to be treated as a partnership for tax purposes. In addition, any distributions that may be made by the Company will be treated as dividends. However, no dividends have been paid by the Company in 2013 and 2012 and the Company does not anticipate making any distributions for the foreseeable future.

23 

 

Item 6. Selected Financial Data

 

Kaanapali Land, LLC

For the years ended December 31, 2013, 2012, 2011, 2010 and 2009

(Dollars in Thousands Except Per Share Amounts)

 

 

 

  2013   2012   2011   2010   2009
                     
Total revenues $ 8,831    5,140    5,493    4,137    4,695 
                     

Net loss from

    continuing operations

$ (2,815)   (418)   (6,803)   (4,092)   (5,278)
                     

Net loss from

    continuing operations

    attributable to

    stockholders

$ (2,964)   (418)   (6,803)   (4,092)   (5,278)
                     

Loss from continuing

  operations per share –

  basic and diluted

$ (1.61)   (0.23)   (3.69)   (2.22)   (2.88)
                     
Total assets $ 131,619    126,889    132,782   144,697    155,595 

 

The above selected financial data should be read in conjunction with the financial statements and the related notes appearing elsewhere in this report. The amounts reflected are those business segments of the Company's predecessor that are continuing in nature.

24 

 

Item 7.  Management’s Discussion and Analysis of Financial Condition and

              Results of Operations

 

All references to "Notes" herein are to Notes to Consolidated Financial Statements contained in this report. Information is not presented on a reportable segment basis in this section because in the Company's judgment such discussion is not material to an understanding of the Company's business.

 

In addition to historical information, this Report contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are based on management's current expectations about its businesses and the markets in which the Company operates. Such forward-looking statements are not guarantees of future performance and involve known and unknown risks, uncertainties or other factors which may cause actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Actual operating results may be affected by various factors including, without limitation, changes in international, national and Hawaiian economic conditions, competitive market conditions, uncertainties and costs related to the imposition of conditions on receipt of governmental approvals and costs of material and labor, and actual versus projected timing of events all of which may cause such actual results to differ materially from what is expressed or forecast in this report.

 

Liquidity and Capital Resources

 

A description of the reorganization of Kaanapali Land and its subsidiaries pursuant to the Plan and a description of certain elements of the Plan are set forth in Item 1 above.

 

Unless wound up by the Company or merged, the Debtors continued to exist after the Plan Effective Date as separate legal entities. Except as otherwise provided in the Order or the Plan, the Debtors have been discharged from all claims and liabilities existing through the Plan Effective Date. As such, all persons and entities who had receivables, claims or contracts with the Debtors that first arose prior to the Petition Date and have not previously filed timely claims under the Plan or have not previously reserved their right to do so in the Reorganization Case are precluded from asserting any claims against the Debtors or their assets for any acts, omissions, liabilities, transactions or activities that occurred before the Plan Effective Date. During August 2005, pursuant to a motion for entry of final decree, the bankruptcy cases were closed.

 

Certain subsidiaries of Kaanapali Land are jointly indebted to Kaanapali Land pursuant to a certain Secured Promissory Note in the principal amount of $70 million dated November 14, 2002, and due September 30, 2020, as extended. Such note had an outstanding balance of principal and accrued interest as of December 31, 2013 and 2012 of approximately $87 million and $87 million, respectively. The interest rate currently is 1.19% per annum and compounds semi-annually. The note, which is prepayable, is secured by substantially all of the remaining real property owned by such subsidiaries, pursuant to a certain Mortgage, Security Agreement and Financing Statement, dated as of November 14, 2002 and placed on record in December 2002. The note has been eliminated in the consolidated financial statements because the obligors are consolidated subsidiaries of Kaanapali Land.

25 

 

In addition to such Secured Promissory Note, certain other subsidiaries of Kaanapali Land continue to be liable to Kaanapali Land under certain guarantees (the "Guarantees") that they had previously provided to support certain Senior Indebtedness (as defined in the Plan) and the Certificate of Land Appreciation Notes ("COLA Notes") formerly issued by Amfac/JMB Hawaii, Inc. (as predecessor to KLC Land). Although such Senior Indebtedness and COLA Notes were discharged under the Plan, the Guarantees of the Non-Debtor KLC Subsidiaries were not. Thus, to the extent that the holders of the Senior Indebtedness and COLA Notes did not receive payment on the outstanding balance thereof from distributions made under the Plan, the remaining amounts due thereunder remain obligations of the Non-Debtor KLC Subsidiaries under the Guarantees. Under the Plan, the obligations of the Non-Debtor KLC Subsidiaries under such Guarantees were assigned by the holders of the Senior Indebtedness and COLA Notes to Kaanapali Land on the Plan Effective Date. Kaanapali Land has notified each of the Non-Debtor KLC Subsidiaries that are liable under such Guarantees that their respective guarantee obligations are due and owing and that Kaanapali Land reserves all of its rights and remedies in such regard. Given the financial condition of such Non-Debtor Subsidiaries, however, it is unlikely that Kaanapali Land will realize payments on such Guarantees that are more than a small percentage of the total amounts outstanding thereunder or that in the aggregate will generate any material proceeds to the Company. Nevertheless, Kaanapali Land has submitted a claim in the Chapter 7 bankruptcy proceeding of Oahu Sugar in order that it may recover substantially all of the assets remaining in the bankruptcy estate, if any, that become available for creditors of Oahu Sugar. Any amounts so received would not be material to the Company. These Guarantee obligations have been eliminated in the consolidated financial statements because the obligors are consolidated subsidiaries of Kaanapali Land, which is now the sole obligee thereunder.

 

Those persons and entities that were not affiliated with Northbrook and were holders of COLAs (Certificate of Land Appreciation Notes) on the date that the Plan was confirmed by the Bankruptcy Court, and their successors in interest, represent approximately 9.0% of the ownership of the Company.

 

At December 31, 2013, the Company had cash and cash equivalents and short term securities of approximately $13 million which is available for, among other things, working capital requirements, including future operating expenses, and the Company's obligations for engineering, planning, regulatory and development costs, drainage and utilities, environmental remediation costs on existing and former properties, potential liabilities resulting from tax audits, and existing and possible future litigation.

 

The primary business of Kaanapali Land is the investment in and development of the Company's assets on the Island of Maui. The various development plans will take many years at significant expense to fully implement. Reference is made to Item 1 - Business, Item 3 - Legal Proceedings and the footnotes to the financial statements. Proceeds from land sales are the Company's only source of significant cash proceeds and the Company's ability to meet its liquidity needs is dependent on the timing and amount of such proceeds.

 

26 

 

 

In October 2011, the Company sold an approximate 68 acre gulch property located adjacent to the Waikele Golf course to an unaffiliated third party for $800 thousand, resulting in an approximate gain of $200 thousand. This was the Company’s last remaining property on Oahu other than several remnant parcels.

 

The Company's operations have in recent periods been primarily reliant upon the net proceeds of sales of developed and undeveloped land parcels.

 

In September 2014, Kaanapali Land Management Corp. (“KLMC”), pursuant to a property and option purchase agreement with an unrelated third party, closed on the sale of an approximate 14.9 acre parcel in West Maui. The purchase price was $3,300, paid in cash at closing. The agreement commits KLMC to fund up to between $803 and $1,008, depending on various factors, for off-site roadway, water, sewer and electrical improvements that will also provide service to other KLMC properties. The purchaser was also granted an option for the purchase of an adjacent site of approximately 18.5 acres for $4,078, of which $525 was paid in cash upon the closing of the 14.9 acre site. The nonrefundable $525 option payment can be applied to the purchase of the 18.5 acre site. The option expires in September 2017. The 14.9 acre site is intended to be used for a hospital, skilled nursing facility, assisted living facility, and medical offices, and the option site is intended to be used for other medical and health related facilities.

 

In October 2014, through a limited liability company of which KLMC was the manager, a sale was made to an unrelated third party of an approximate 7.65 acre parcel in West Maui commonly referred to as Lot 10-H. KLMC received proceeds from the sale of approximately $1,300.

 

During the first quarter of 2006, the Company received final subdivision approval on an approximate 336 acre parcel in the region "mauka" (toward the mountains) from the main highway serving the area. This project, called Kaanapali Coffee Farms, consists of 51 agricultural lots, which are currently being offered to individual buyers. The land improvements were completed during 2008. In conjunction with the sale of four lots sold in 2013, in addition to cash proceeds, the Company received promissory notes totaling $1.2 million, which are included in other assets in the consolidated balance sheet of December 31, 2013. As of December 31, 2013, the Company sold 18 of the 51 lots at Kaanapali Coffee Farms. In the first quarter of 2014, three additional lots were sold. In the second quarter of 2014, seven lots were sold and in the fourth quarter of 2014, three lots were sold. In 2015, two lots were sold in the first quarter, one was sold in the second quarter and one in the third quarter. In conjunction with the sale of four of the lots sold in 2014, in addition to cash proceeds, the Company received promissory notes. As of November 1, 2015, $1.2 million remains outstanding.

 

On December 23, 2015 Pioneer Mill Company, LLC entered into a property purchase agreement with an unrelated third party for the sale of an approximate 19 acre site in Lahaina, known as the Pioneer Mill Site. The agreement, which calls for a purchase price of $20.5 million and has a scheduled closing date of April 30, 2016, has significant conditions to closing, including investigation and evaluation by the purchaser during the due diligence period. Accordingly there can be no assurance that the sale will be completed under the existing or any other terms. If the agreement is consummated, the Company will likely incur significant costs for the relocation of certain buildings and equipment on the property and be subject to certain warranties and representations that will survive the closing of the transaction. If closing were to occur, all net proceeds are expected to be retained by the Company for future working capital and other needs.

 

Although the Company does not currently believe that it has significant liquidity problems over the near term, should the Company be unable to satisfy its liquidity requirements from its existing resources and future property sales, it will likely pursue alternate financing arrangements. However it cannot be determined at this time what, if any, financing alternatives may be available and at what cost.

 

27 

 

Results of Operations

 

Reference is made to the footnotes to the financial statements for additional discussion of items addressing comparability between years.

 

2013 Compared to 2012

 

The increase in restricted cash is due to the consolidation of the Kaanapali Coffee Farms Lot Owners’ Association.

 

The decrease in property, net and the related increases in sales and costs of sales as of December 31, 2013 is primarily due to the sale of nine lots during 2013. The decrease is also due to the value adjustment taken on the value of the inventory of property during the second quarter of 2013.

 

Pension plan assets increased as of December 31, 2013 as compared to December 31, 2012 as a result of an increase in the market values of the Company’s pension plan assets, as well as a decrease in the discount rate used to determine the plan’s benefit obligation.

 

The increase in other assets at December 31, 2013 as compared to December 31, 2012 is primarily due to promissory notes received related to lot sales during 2013.

 

The increase in other liabilities at December 31, 2013 as compared to December 31, 2012 is primarily due to the adjustment of certain contingency accruals during 2013, which is reflected in selling, general and administrative expenses at December 31, 2013.

 

2012 Compared to 2011

 

The decrease in sales as of December 21, 2012 is primarily due to the expiration of the seed corn contract with Monsanto Seed Company that expired on June 30, 2012.

 

The decrease in selling, general and administrative expenses as of December 31, 2012 is primarily due to the adjustment of certain contingency accruals at December 31, 2012. The decrease is also is due to a decrease in payroll related expenses and professional services during 2012.

 

Critical Accounting Policies

 

The discussion and analysis of the Company's financial condition and results of operations are based upon the Company's consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosures of contingent assets and liabilities. These estimates are based on historical experience and on various other assumptions that management believes are reasonable under the circumstances; additionally management evaluates these results on an on-going basis. Management's estimates form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Different estimates could be made under different assumptions or conditions, and in any event, actual results may differ from the estimates.

 

The Company reviews its property for impairment of value. This includes considering certain indications of impairment such as significant changes in asset usage, significant deterioration in the surrounding economy or environmental problems. If such indications are present and the undiscounted cash flows estimated to be generated by those assets are less than the assets' carrying value, the Company will adjust the carrying value down to its estimated fair value. Fair value is based on management's estimate of the property's fair value based on discounted projected cash flows.

28 

 

There are various judgments and uncertainties affecting the application of these and other accounting policies, including the liabilities related to asserted and unasserted claims and the utilization of net operating losses. Materially different amounts may be reported under different circumstances or if different assumptions were used.

 

Pension assumptions are significant inputs to the actuarial models that measure pension benefit obligations and related effects on operations. Two assumptions - discount rate and expected return on assets - are important elements of plan expense and asset/liability measurement. The Company evaluates these critical assumptions at least annually. The Company periodically evaluates other assumptions involving demographic factors such as mortality, and updates the assumptions to reflect experience and expectations for the future. Actual results in any given year will often differ from actuarial assumptions because of economic and other factors.

 

Accumulated and projected benefit obligations are measured as the present value of future cash payments. The Company discounts those cash payments using the weighted average of market-observed yields for high quality fixed income securities with maturities that correspond to the payment of benefits. Lower discount rates increase present values and subsequent-year pension expense; higher discount rates decrease present values and subsequent-year pension expense.

 

The Company’s discount rates for projected benefit obligations of the pension plan at December 31, 2013, 2012 and 2011 were 4.47%, 3.75% and 4.37%, respectively, reflecting market interest rates.

 

To determine the expected long-term rate of return on pension plan assets, the Company considers current and expected asset allocations, as well as historical and expected returns on various categories of plan assets. Based on our analysis of future expectations of asset performance, past return results, and our current and expected asset allocations, we have assumed a 7% long-term expected return on those assets.

 

 

Item 7A. Quantitative and Qualitative Disclosures About Market Risk

 

The Company's future earnings, cash flows and fair values relevant to financial instruments are dependent upon prevalent market rates. Market risk is the risk of loss from adverse changes in market prices and interest rates. The Company manages its market risk by matching projected cash inflows from operating properties, financing activities, and investing activities with projected cash outflows to fund capital expenditures and other cash requirements. The Company does not enter into financial instruments for trading purposes.

 

29 

Item 8. Financial Statements and Supplementary Data

 

 

Kaanapali Land, LLC

 

Index

 

 

Report of Independent Registered Public Accounting Firm, Grant Thornton LLP

 

Report of Independent Registered Public Accounting Firm, Ernst & Young LLP

 

Consolidated Balance Sheets, December 31, 2013 and 2012

 

Consolidated Statements of Operations for the years ended December 31, 2013, 2012 and 2011

 

Consolidated Statements of Comprehensive Income (Loss) for the years ended December 31, 2013, 2012 and 2011

 

Consolidated Statements of Equity for the years ended December 31, 2013, 2012 and 2011

 

Consolidated Statements of Cash Flows for the years ended December 31, 2013, 2012 and 2011

 

Notes to Consolidated Financial Statements

 

Schedules not filed:

 

All schedules have been omitted as the required information is inapplicable or the information is presented in the financial statements or related notes.

 

 

30 

 

 

 

 

 

Report of Independent Registered Public Accounting Firm

 

 

The Managing Member and Stockholders

Kaanapali Land, LLC

 

We have audited the accompanying consolidated balance sheets of Kaanapali Land, LLC (the "Company") as of December 31, 2013, and the related consolidated statements of operations, comprehensive income (loss), equity, and cash flows for the year then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.

 

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

 

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Kaanapali Land, LLC as of December 31, 2013, and the consolidated results of their operations and their cash flows for the year then ended, in conformity with accounting principles generally accepted in the United States of America.

 

 

 

 

 

 

/s/ Grant Thornton LLP

 

 

 

 

Chicago, Illinois

December 29, 2015

31 

 

 

 

 

 

Report of Independent Registered Public Accounting Firm

 

 

The Managing Member and Stockholders

Kaanapali Land, LLC

 

We have audited the accompanying consolidated balance sheet of Kaanapali Land, LLC and subsidiaries (the "Company") as of December 31, 2012, and the related consolidated statements of operations, comprehensive income (loss), stockholders' equity, and cash flows for the years ended December 31, 2012 and 2011. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

 

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of Kaanapali Land, LLC and subsidiaries as of December 31, 2012, and the consolidated results of their operations and their cash flows for the years ended December 31, 2012 and 2011, in conformity with U.S. generally accepted accounting principles.

 

 

 

 

 

 

/s/ Ernst & Young LLP

 

 

 

 

Chicago, Illinois

March 27, 2013

 

 

32 

 

Kaanapali Land, LLC

 

Consolidated Balance Sheets

 

December 31, 2013 and 2012

(Dollars in Thousands, except share data)

 

 

  2013   2012
Assets
           
           
Cash and cash equivalents $ 13,140      14,270 
Restricted cash   872      -- 
Property, net   90,792      95,535 
Pension plan assets   24,891      16,154 
Other assets   1,924      930 
  $ 131,619      126,889 
           
Liabilities
           
Accounts payable and accrued expenses $ 399      557 
Deposits and deferred gains   1,205      1,673 
Deferred income taxes   21,612      18,933 
Other liabilities   15,463      15,549 
           
          Total liabilities   38,679      36,712 
           
Commitments and contingencies (Note 7)          
           
Equity
           

Common stock, at 12/31/13 and 12/31/12

  Shares authorized – unlimited, Class C shares

      52,000; shares issued and outstanding 1,792,613

      in 2013 and 2012, Class C shares issued and

      outstanding 52,000 in 2013 and 2012

  --      -- 
Additional paid-in capital   5,471      5,471 

Accumulated other comprehensive income (loss),

   net of tax

  (6,069)     (11,089)
Accumulated earnings   93,191      95,795 
           
          Stockholders’ equity   92,593      90,177 
           
Non controlling interests   347      -- 
           
          Total equity   92,940      90,177 
           
  $ 131,619      126,889 

 

 

 

The accompanying notes are an integral part of the consolidated financial statements.

33 

 

Kaanapali Land, LLC

 

Consolidated Statements of Operations

 

Years ended December 31, 2013, 2012 and 2011

(Dollars in Thousands Except Per Share Amounts)

 

 

 

  2013   2012   2011
Revenues:                
    Sales $ 8,209      4,761      5,318 
    Interest and other income   622      379      175 
    8,831      5,140      5,493 
                 
Cost and expenses:                
    Cost of sales   7,653      4,252      4,543 
    Selling, general and administrative   4,347      382      5,544 
    Depreciation and amortization   232      286      276 
    12,232      4,920      10,363 
                 
Operating income (loss) before income taxes   (3,401)     220      (4,870)
      Income tax benefit (expense)   586      (638)     (1,933)
                 
          Net income (loss)   (2,815)     (418)     (6,803)
                 

Less:  Net income attributable to

  non controlling interests

  149      --      -- 
                 
Net income (loss) attributable to stockholders $ (2,964)     (418)     (6,803)
                 
          Net income (loss) per share – basic and diluted $ (1.61)     (0.23)     (3.69)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The accompanying notes are an integral part of the consolidated financial statements.

34 

 

Kaanapali Land, LLC

 

Consolidated Statements of Comprehensive Income (Loss)

 

Years ended December 31, 2013, 2012 and 2011

(Dollars in Thousands Except Per Share Amounts)

 

 

 

  2013   2012   2011
                   
Net income (loss) $ (2,815)     (418)     (6,803)
                 
Other comprehensive income (loss):                
  Net unrealized gains (losses) on pension plan assets   8,230      96      (7,825)
Other comprehensive income (loss), before tax   8,230      96      (7,825)
                 

Income tax expense related to items of other

  comprehensive income (loss)

  (3,210)     (38)     3,052 
Other comprehensive income (loss), net of tax   5,020      58      (4,773)
                 
Comprehensive income (loss) $ 2,205      (360)     (11,576)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The accompanying notes are an integral part of the consolidated financial statements.

35 

 

Kaanapali Land, LLC

 

Consolidated Statements of Equity

 

Years ended December 31, 2013, 2012 and 2011

(Dollars in Thousands)

 

 

   

Common

Stock

 

Additional

Paid-In

Capital

 

Accumu-

lated

(Deficit)

Earnings

 

Accumu-

lated

Other

Compre-

hensive

Income/

(Loss)

 

Total

Stock-

holders’

Equity

 

Non

Controlling

Interests

 

Total

Equity

Balance at

  December 31,

  2010

  $ --    5,471    103,016    (6,374)   102,113    --    102,113 
                               

Other compre-

  hensive income,

  net of tax

    --    --    --    (4,773)   (4,773)   --    (4,773)
                               
Net loss     --    --    (6,803)   --    (6,803)   --    (6,803)
                               

Balance at

  December 31,

  2011

    --    5,471    96,213    (11,147)   90,537    --    90,537 
                               

Other compre-

  hensive income,

  net of tax

    --    --    --    58    58    --    58 
                               
Net loss     --    --    (418)   --    (418)   --    (418)
                               

Balance at

  December 31,

  2012

    --    5,471    95,795    (11,089)   90,177    --    90,177 
                               

Effect of consolidat-

  ing Kaanapali

  Coffee Farms

  Lot Owners’

  Association

    --    --    360    --    360    198    558 
                               

Other compre-

  hensive income,

  net of tax

    --    --    --    5,020    5,020    --    5,020 
                               
Net loss     --    --    (2,964)   --    (2,964)   149    (2,815)
                               

Balance at

  December 31,

  2013

  $ --    5,471    93,191    (6,069)   92,593    347    92,940 

 

 

 

The accompanying notes are an integral part of the consolidated financial statements.

36 

 

Kaanapali Land, LLC

 

Consolidated Statements of Cash Flows

 

Years ended December 31, 2013, 2012 and 2011

(Dollars in Thousands)

 

 

  2013   2012   2011
Cash flows from operating activities:                
  Net loss $ (2,815)     (418)     (6,803)

  Adjustments to reconcile net loss to net cash

   used in operating activities:

               
    Proceeds from property sales   5,127      936      1,089 
    Gain/loss on property sales   (655)     109      585 
    Impairment loss   856      --      415 
    Pension plan assets   (507)     (573)     (346)
    Depreciation and amortization   232      286      276 
    Deferred income taxes   (531)     620      1,944 
  Changes in operating assets and liabilities:                
    Restricted cash   (468)     --      -- 
    Other assets   (981)     506      531 

    Accounts payable, accrued expenses, deposits,

      deferred gains and other

  (690)     (6,191)     769 
Net cash used in operating activities   (432)     (4,725)     (1,540)
                 
Cash flows from investing activities:                
  Property additions   (817)     (424)     (778)

  Effect of consolidating Kaanapali Coffee Farms

    Lot Owners’ Association

  119      --      -- 
  Proceeds from short-term investments   --      5,000      15,000 
  Purchase of short-term investments   --      --      (9,992)
Net cash provided by (used in) investing activities   (698)     4,576      4,230 
                 
          Net increase (decrease) in cash and cash equivalents   (1,130)     (149)     2,690 
                 
          Cash and cash equivalents at beginning of year   14,270      14,419      11,729 
                 
          Cash and cash equivalents at end of year $ 13,140      14,270      14,419 
                 
Cash received (paid) for income taxes $ --      --      -- 

 

 

 

Supplemental Non-Cash Investing Activities:

 

Amounts included in Proceeds from property sales include promissory notes of $1,208 at December 31, 2013.

 

 

 

 

 

 

 

 

The accompanying notes are an integral part of the consolidated financial statements.

37 

 

Kaanapali Land, LLC

 

Notes to Consolidated Financial Statements

 

(Dollars in Thousands)

 

 

(1) Summary of Significant Accounting Policies

 

Organization and Basis of Accounting

 

Kaanapali Land, LLC ("Kaanapali Land"), a Delaware limited liability company is the reorganized entity resulting from the Joint Plan of Reorganization of Amfac Hawaii, LLC (now known as KLC Land Company, LLC ("KLC Land")), certain of its subsidiaries (together with KLC Land, the "KLC Debtors") and FHT Corporation ("FHTC" and, together with the KLC Debtors, the "Debtors") under Chapter 11 of the Bankruptcy Code, dated June 11, 2002 (as amended, the "Plan"). The Plan was filed jointly by all Debtors to consolidate each case for joint administration in the Bankruptcy Court in order to (a) permit the petitioners to present a joint reorganization plan that recognized, among other things, the common indebtedness of the debtors (i.e. the Certificate of Land Appreciation Notes ("COLAs") and Senior Indebtedness) and (b) facilitate the overall administration of the bankruptcy proceedings. As indicated in the Plan, Kaanapali Land has elected to be taxable as a corporation.

 

The Plan was confirmed by the Bankruptcy Court by orders dated July 29, 2002 and October 30, 2002 (collectively, the "Order") and became effective November 13, 2002 (the "Plan Effective Date"). During August 2005, pursuant to a motion for entry of final decree, the bankruptcy cases were closed.

 

In accordance with the Plan, approximately 1,793,000 Common Shares were issued all of which remained outstanding at December 31, 2013.

 

Kaanapali Land's membership interests are denominated as non par value "Shares" and were originally divided into two classes: the Class A Shares, which were widely held primarily by non-affiliated persons who had previously held Company indebtedness prior to the Plan Effective Date and "Class B Shares" which were generally held by affiliates of Kaanapali Land. Pursuant to the LLC Agreement, the Class A Shares and Class B Shares were automatically redesignated Company Common Shares on November 15, 2007. Accordingly, the Company's Class A Shares and Class B Shares ceased to exist separately on November 15, 2007.

 

The accompanying consolidated financial statements include the accounts of Kaanapali Land and all of its subsidiaries and its predecessor (collectively, the "Company"), which include KLC Land and its wholly-owned subsidiaries. In 2013, the Kaanapali Coffee Farms Lot Owners’ Association was consolidated into the accompanying consolidated financial statements. The interests of third party owners are reflected as non controlling interests. All significant intercompany transactions and balances have been eliminated in consolidation. All references to acres/acreage are unaudited.

The Company's continuing operations are in two business segments - Agriculture and Property. The Agriculture segment formerly grew seed corn and soybeans under contract and remains engaged in farming, harvesting and milling operations relating to coffee orchards on behalf of the applicable land owners. The corn and soybean contract expired June 30, 2012. The Property segment primarily develops land for sale and negotiates bulk sales of undeveloped land. The Property and Agriculture segments operate exclusively in the State of Hawaii. For further information on the Company's business segments see Note 8.

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Cash and Cash Equivalents

 

The Company considers as cash equivalents all investments with maturities of three months or less when purchased. The Company’s cash balances are maintained primarily in two financial institutions. Restricted cash as of December 31, 2013 represents cash held by the Kaanapali Coffee Farms Lot Owners’ Association. At times, such balances may exceed the Federal Deposit Insurance Corporation insurance limits. Management does not believe the Company is exposed to significant risk of loss on cash and cash equivalents.

 

Subsequent Events

 

The Company has performed an evaluation of subsequent events from the date of the financial statements included in this annual report through the date of its filing with the SEC.

 

Reclassification of Prior Year Presentation

 

Certain prior year amounts have been reclassified for consistency with the current period presentation. These reclassifications had no effect on the reported consolidated financial statements.

 

Recently Issued Accounting Pronouncements

 

In February 2013, the FASB issued guidance on the recognition, measurement, and disclosure of obligations resulting from joint and several liability arrangements for which the total amount of the obligation within the scope of this guidance is fixed at the reporting date. This guidance requires an entity to measure obligations resulting from such joint and several liability arrangements, as the sum of the amount the reporting entity agreed to pay on the basis of its arrangement among its co-obligors and any additional amount the reporting entity expects to pay on behalf of its co-obligors. An entity is also required to disclose the nature and amount of the obligation as well as other information about those obligations. This guidance is effective for public companies for fiscal years, and interim periods within those years, beginning after December 15, 2013. The adoption of this guidance is not expected to have a material impact on our Condensed Financial Statements.

 

In July 2013, the FASB issued guidance on the financial statement presentation of an unrecognized tax benefit when a net operating loss carryforward, a similar tax loss, or a tax credit carryforward exists. This guidance requires an unrecognized tax benefit, or a portion of an unrecognized tax benefit, be presented in the financial statements as a reduction to a deferred tax asset for a net operating loss carryforward, a similar tax loss, or a tax credit carryforward. If a net operating loss carryforward, a similar tax loss, or a tax credit carryforward is not available at the reporting date, the unrecognized tax benefit should be presented in the financial statements as a liability and not combined with deferred tax assets. This guidance is effective prospectively for fiscal years, and interim periods within those years, beginning after December 15, 2014, with early adoption permitted. The adoption of this guidance is not expected to have a material effect on the Company’s consolidated financial statements.

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Impact of Recently Issued Accounting Standards: In April 2014, the FASB issued Accounting Standards Update (ASU) 2014-08, Presentation of Financial Statements (Topic 205) and Property, Plant, and Equipment (Topic 360): Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity (ASU 2014-08). This update changes the requirements for reporting discontinued operations under Subtopic 205-20. A disposal of a component of an entity or a group of components of an entity is required to be reported in discontinued operations if the disposal represents a strategic shift that has (or will have) a major effect on an entity’s operations and financial results when either (i) the component of an entity or group of components of an entity meets the criteria to be classified as held for sale, (ii) the component of an entity or group of components of an entity is disposed of by sale, or (iii) the component of an entity or group of components of an entity is disposed of other than by sale. The amendments in ASU 2014-08 improve the definition of discontinued operations by limiting discontinued operations reporting to disposals of components of an entity that represent strategic shifts that have (or will have) a major effect on an entity’s operations and financial results. The amendments in the update require additional disclosures about discontinued operations and disclosures related to the disposal of an individually significant component of an entity that does not qualify for discontinued operations presentation. The amendments in ASU 2014-08 are to be applied to all disposals (or classifications as held for sale) of components of an entity that occur within annual periods beginning on or after December 15, 2014, and interim periods within those years. Early adoption is permitted, but only for disposals (or classifications as held for sale) that have not been reported in financial statements previously issued or available for issuance. The Company has chosen not to early adopt the provisions under ASU 2014-08 and is currently evaluating the impact of adopting this new accounting standard.

 

In May 2014, the Financial Accounting Standards Board (“FASB”) issued guidance under the Accounting Standards Codification (“ASC”) 606, Revenue from Contract with Customers, which establishes a single comprehensive revenue recognition model for all contracts with customers and will supersede most existing revenue guidance. This guidance requires entities to recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled to receive in exchange. Transition options include either a full or modified retrospective approach and early adoption is permitted. The implementation date for this guidance was recently deferred and will now be effective at the beginning of our first quarter of fiscal year 2019. We are currently evaluating the impact of the adoption of this requirement on our Consolidated Financial Statements.

 

In May 2015, the FASB issued Accounting Standards Update (ASU) 2015-07, Fair Value Measurement Disclosures for Investments in Certain Entities That Calculate Net Asset Value per Share (or its Equivalent), as a new Topic, Accounting Standards Codification (ASC) Topic 820. Under this new guidance, investments measured at net asset value (“NAV”), as a practical expedient for fair value, are excluded from the fair value hierarchy. Removing investments measured using the practical expedient from the fair value hierarchy is intended to eliminate the diversity in practice that currently exists with respect to the categorization of these investments. The only criterion for categorizing investments in the fair value hierarchy will be the observability of the inputs. This ASU is effective for annual periods beginning after December 15, 2015 and shall be applied retrospectively to all periods presented. The Company is currently evaluating the potential impact of adopting this new accounting standard.

 

40 

 

Land Development

 

During the first quarter of 2006, the Company received final subdivision approval on an approximate 336 acre parcel in the region "mauka" (toward the mountains) from the main highway serving the area. This project, called Kaanapali Coffee Farms, consists of 51 agricultural lots, which are currently being offered to individual buyers. The land improvements were completed during 2008. In conjunction with the sale of four lots sold in 2013, in addition to cash proceeds, the Company received promissory notes totaling $1,208, which are included in other assets in the consolidated balance sheet at December 31, 2013. As of December 31, 2013, the Company sold 18 of the 51 lots at Kaanapali Coffee Farms. In the first quarter of 2014, three additional lots were sold. In the second quarter of 2014, seven lots were sold and in the fourth quarter of 2014, three lots were sold. In 2015, two lots were sold in the first quarter, one was sold in the second quarter and one in the third quarter. In conjunction with the sale of four of the lots sold in 2014, in addition to cash proceeds, the Company received promissory notes. As of November 1, 2015, $1,208 remains outstanding.

 

Project costs associated with the development and construction of real estate projects are capitalized and classified as Property, net. Such capitalized costs are not in excess of the projects' estimated fair value as reviewed periodically or as considered necessary. In addition, interest, insurance and property tax are capitalized to qualifying assets during the period that such assets are undergoing activities necessary to prepare them for their intended use.

 

For development projects, capitalized costs are allocated using the direct method for expenditures that are specifically associated with the lot being sold and the relative-sales-value method for expenditures that benefit the entire project.

 

Recognition of Profit From Real Property Sales

 

For real property sales, profit is recognized in full when the collectability of the sales price is reasonably assured and the earnings process is virtually complete. When the sale does not meet the requirements for full profit recognition, all or a portion of the profit is deferred until such requirements are met.

 

Other revenues are recognized when delivery has occurred or services have been rendered, the sales price is fixed or determinable, and collectability is reasonably assured.

 

Property

 

Property is stated at cost. Depreciation is based on the straight-line method over the estimated economic lives of 15-40 years for the Company's depreciable land improvements, 3-18 years for machinery and equipment. Maintenance and repairs are charged to operations as incurred. Significant betterments and improvements are capitalized and depreciated over their estimated useful lives.

 

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Provisions for impairment losses related to long-lived assets, if any, are recognized when expected future cash flows are less than the carrying values of the assets. If indicators of impairment are present, the Company evaluates the carrying value of the related long-lived assets in relationship to the future undiscounted cash flows of the underlying operations or anticipated sales proceeds. The Company adjusts the net book value of property to fair value if the sum of the expected undiscounted future cash flow or sales proceeds is less than book value. Assets held for sale are recorded at the lower of the carrying value of the asset or fair value less costs to sell.

 

  2013   2012
Property, net:           
    Land $ 88,133      91,955 
    Buildings   2,977      3,688 
    Machinery and equipment   3,960      3,938 
    95,070      99,581 
    Accumulated depreciation   (4,278)     (4,046)
           
    Property, net $ 90,792      95,535 

 

Inventory of land held for sale of approximately $21,300 and $25,100, representing primarily Kaanapali Coffee Farms, was included in Property, net in the consolidated balance sheets at December 31, 2013 and 2012, respectively, and is carried at the lower of cost or net realizable value. Based on current and foreseeable market conditions, discussions with real estate brokers and review of historical land sale activity (level 2 and 3), the value of the inventory of property was reduced by $856 during 2013 to reflect the property at the lower of carrying value or fair value less costs to sell. The value adjustment is reflected in cost of sales in the consolidated statements of operations at December 31, 2013. The impairment and land held for sale is recognized in the Property segment as disclosed in footnote 8 Business Segment Information. Generally, no land is currently in use except for certain acreage of coffee trees which are being maintained to support the Company's land development program and miscellaneous parcels of land that have been leased or licensed to third parties on a short term basis.

 

The Company's significant property holdings are on the island of Maui consisting of approximately 4,000 acres, of which approximately 1,500 acres is classified as conservation land which precludes development. The Company has determined, based on its current projections for the development and/or disposition of its property holdings, that the property holdings are not currently recorded in an amount in excess of proceeds that the Company expects that it will ultimately obtain from the operation and disposition thereof.

 

Other Liabilities

 

Other liabilities are comprised of estimated liabilities for losses, commitments and contingencies related to various divested assets or operations. These estimated liabilities include the estimated effects of certain asbestos related claims, certain lease and other real estate related guarantees and obligations, obligations related to former officers and employees such as pension, post-retirement benefits and workmen's compensation, investigation and potential remedial efforts in connection with environmental matters in the state of Hawaii. In late 2012, the Company made a final cash payment in settlement of a future real estate related obligation. As a result, a settlement gain of approximately $3,000 is recognized in selling, general and administrative in 2012. Management's estimates are based, as applicable, on taking into consideration claim amounts filed by third parties, life expectancy of beneficiaries, advice of consultants, negotiations with claimants, historical settlement experience, the number of new cases expected to be filed and the likelihood of liability in specific situations. Management periodically reviews the adequacy of each of its reserve amounts and adjusts such as it determines appropriate to reflect current information. Reference is made to Note 7, Commitments and Contingencies.

42 

 

Use of Estimates

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates.

 

Short-Term Investments

 

It is the Company's policy to classify all of its investments in U.S. Government obligations with original maturities greater than three months as held-to maturity, as the Company has the ability and intent to hold these investments until their maturity, and are recorded at amortized cost, which approximates fair value. Prior to maturity in May 2012, the Company held short term investments consisting of $5,000 of such securities purchased in June 2011. The Company held no short-term investments as of December 31, 2013 or 2012.

 

Income Taxes

 

Income taxes are accounted for under the asset and liability approach which requires recognition of deferred tax assets and liabilities for the differences between the financial reporting and tax basis of assets and liabilities. A valuation allowance reduces deferred tax assets when it is more likely than not some portion or all of the deferred tax assets will not be realized. As of December 31, 2013 and 2012, there were no uncertain tax positions that had a material impact on the Company's consolidated financial statements.

 

 

(2) Mortgage Note Payable

 

Certain subsidiaries of Kaanapali Land are jointly indebted to Kaanapali Land pursuant to a certain Secured Promissory Note in the principal amount of $70,000 dated November 14, 2002, and due September 30, 2020, as extended. Such note had an outstanding balance of principal and accrued interest as of December 31, 2013 and 2012 of approximately $87,300 and $87,000, respectively. The interest rate currently is 1.19% per annum and compounds semi-annually. The note, which is prepayable, is secured by substantially all of the remaining real property owned by such subsidiaries, pursuant to a certain Mortgage, Security Agreement and Financing Statement, dated as of November 14, 2002 and placed on record in December 2002. The note has been eliminated in the consolidated financial statements because the obligors are consolidated subsidiaries of Kaanapali Land.

 

 

(3) Rental Arrangements

 

During 2013 and 2012, the Company leased various office spaces with average annual rental of approximately $26 and $26 per year, respectively. Although the Company was a party to certain other leasing arrangements, none of them were material.

 

 

43 

 

(4) Employee Benefit Plans

 

As of December 31, 2013, the Company participates in a defined benefit pension plan that covers substantially all its eligible employees. The Pension Plan is sponsored and maintained by Kaanapali Land in conjunction with other plans providing benefits to employees of Kaanapali Land and its affiliates. The Pension Plan for Bargaining Unit Employees of Amfac Plantations (the "Pension Plan") provides benefits based primarily on length of service and career-average compensation levels. Kaanapali Land's policy is to fund pension costs in accordance with the minimum funding requirements under provisions of the Employee Retirement Income Security Act ("ERISA"). Under such guidelines, amounts funded may be more or less than the pension expense or credit recognized for financial reporting purposes.

 

The Company does not consider the excess assets of the Pension Plan to be a source of liquidity. While under certain circumstances the Company could seek to use the excess assets to provide such funds, there are substantial costs, including Federal income tax consequences, in doing so.

 

FASB ASC Topic 820, Fair Value Measurements and Disclosures, establishes a framework for measuring fair value. That framework provides a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1 measurements) and the lowest priority to unobservable inputs (level 3 measurements). The three levels of the fair value hierarchy are described as follows:

 

Level 1 -       Inputs to the valuation methodology are unadjusted quoted prices for identical assets or liabilities in active markets.
     
Level 2 -   Inputs to the valuation methodology include: quoted prices for similar assets or liabilities in active markets; quoted prices for identical or similar instruments in inactive markets; or other inputs that are observable for the asset or liability.
     
Level 3 -   Inputs to the valuation methodology are unobservable and significant to the fair value measurement.

 

The asset or liability's fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Valuation techniques used need to maximize the use of observable inputs and minimize unobservable inputs.

 

44 

 

Following is a description of the valuation methodologies used for Pension Plan assets measured at fair value.

 

   --          Common and Preferred Stock:  Valued at the closing price reported in the active market in which the individual security is traded.
     
   --   Mutual Funds Holding Corporate Notes, Bonds and Debentures:  Valued at the closing price reported in the active market in which the mutual fund is traded.
     
   --   Private Equity Investments and Investment in Partnerships:  Valued at net asset value ("NAV") of shares/ownership units held by the Pension Plan at year-end. NAV represents the Pension Plan's interests in the net assets of these investments which consisted primarily of equity and debt securities, some of which are exchange-traded or valued using independent pricing feeds (i.e. Bloomberg or Reuters) or independent broker quotes.
     
   --   Investment Contract with Insurance Company:  Valued at fair value by recording a Market Value Adjustment to estimate the current market value of fixed income securities held by the insurance company.

 

The following table sets forth by level, within the fair value hierarchy, the Pension Plan's assets at fair value as of December 31, 2013:

 

    Level 1   Level 2   Level 3     Total  
                      
Common and preferred stocks   $ 20,500   --   --   20,500
Corporate notes, bonds and debentures     1,400   --   --   1,400
Investment in partnerships     --   19,500   6,700   26,200
Investments in insurance companies     --   --   1,600   1,600
Investments in private equity funds     --   6,500   9,600   16,100
Cash and cash equivalents     200   --   --   200
                   

          Total Pension Plan assets

            at fair value

  $ 22,100   26,000   17,900   66,000

 

The following table sets forth by level, within the fair value hierarchy, the Pension Plan's assets at fair value as of December 31, 2012:

 

    Level 1   Level 2   Level 3     Total  
                      
Common and preferred stocks   $ 18,400   --   --   18,400
Corporate notes, bonds and debentures     5,600   --   --   5,600
Investment in partnerships     100   17,200   1,100   18,400
Investments in insurance companies     --   --   1,800   1,800
Investments in private equity funds     7,800   1,900   7,800   17,500
Cash and cash equivalents     300   --   --   300
                   

          Total Pension Plan assets

            at fair value

  $ 32,200   19,100   10,700   62,000

 

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Changes in Level 3 Investments

 

The following table sets forth a summary of changes in fair value of the plan's level 3 assets for the year ended December 31, 2013:

 

   

Investment

in

Insurance

Companies

 

Investment

in

Partnerships

 

Investment

in Private

Equity

Funds

      Total    
                      
Balance, beginning of year   $ 1,800    1,100    7,800    10,700 

Net earned interest and

    realized/unrealized

    gains (losses)

    100    1,400    700    2,200 
Transfers in to Level 3     --    1,800    --    1,800 
Transfers from Level 3     (1,100)   --    --    (1,100)

Purchases, sales, issuances and

  settlements (net)

    800    2,400    1,100    4,300 
                   
Balance, end of year   $ 1,600    6,700    9,600    17,900 

 

The following table sets forth a summary of changes in fair value of the plan's level 3 assets for the year ended December 31, 2012:

 

   

Investment

in

Insurance

Companies

 

Investment

in

Partnerships

 

Investment

in Private

Equity

Funds

      Total    
                      
Balance, beginning of year   $ 1,900    1,200    7,200    10,300 

Net earned interest and

    realized/unrealized

    gains (losses)

    200    200    600    1,000 
Transfers in to Level 3     1,000    500    --    1,500 
Transfers from Level 3     (1,300)   (800)   --    (2,100)

Purchases, sales, issuances and

  settlements (net)

    --    --    --    -- 
                   
Balance, end of year   $ 1,800    1,100    7,800    10,700 

 

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The following tables summarize the components of the change in pension benefit obligations, plan assets and funded status of the Company's defined benefit pension plan at December 31, 2013, 2012 and 2011.

 

       2013         2012         2011   
                 
Benefit obligation at beginning of year   $ 45,814    45,605    43,771 
Service cost     636    627    602 
Interest cost     1,653    1,881    2,182 
Actuarial (gain) loss     (3,311)   1,660    2,850 
Benefits paid     (3,679)   (3,959)   (3,800)
               

Accumulated and projected benefit obligation

  at end of year

    41,113    45,814    45,605 
               
Fair value of plan assets at beginning of year     61,968    61,090    66,735 
Actual return on plan assets     7,715    4,837    (1,845)
Benefits paid     (3,679)   (3,959)   (3,800)
               
Fair value of plan assets at end of year     66,004    61,968    61,090
               
Funded status     24,891    16,154    15,485 
               
Unrecognized net actuarial (gain) loss     9,920    18,146    18,238 
Unrecognized prior service cost     27    31    35 
               
Prepaid pension cost   $ 34,838    34,331    33,758 

 

At December 31, 2013, approximately 34% of the plan's assets are invested in equity composite, 15% in debt composite, 45% in multi-strategy composite and 6% in real assets composite. The allocations are within Company's target allocations in association with the Company's investment strategy.

 

The components of the net periodic pension credit for the years ended December 31, 2013, 2012 and 2011 (which are reflected as selling, general and administrative in the consolidated statements of operations) are as follows:

 

    2013    2012      2011  
                 
Service costs   $ 636    627    602 
Interest cost     1,653    1,881    2,182 
Expected return on plan assets     (4,025)   (4,101)   (4,065)
Recognized net actuarial loss     1,225    1,016    930 
Amortization of prior service cost        
               
Net periodic pension credit   $ (507)   (573)   (346)

 

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The principal weighted average assumptions used to determine the net periodic pension benefit (credit) and the actuarial value of the accumulated benefit obligation were as follows:

 

      2013       2012       2011  
As of January 1,                  
               
Discount rate     3.75%   4.37%   5.24%
               
Rates of compensation increase     3%   3%   3%
               
Expected long-term rate of return on assets     7.0%   7.0%   7.0%
               
As of December 31,              
               
Discount rate – net periodic pension credit     3.75%   4.37%   5.24%
               
Discount rate – accumulated benefit obligation     4.47%   3.75%   4.37%
               
Rates of compensation increase     3%   3%   3%
               
Expected long-term rate of return on assets     7.0%   7.0%   7.0%

 

The above long-term rates of return were selected based on historical asset returns and expectations of future returns.

 

The Company amortizes experience gains and losses as well as effects of changes in actuarial assumptions and plan provisions over a period no longer than the average expected mortality of participants in the pension plan.

 

The measurement date is December 31, the last day of the corporate fiscal year.

 

A comparison of the market value of the Pension Plan's net assets with the present value of the benefit obligations indicates the Company's ability at a point in time to pay future benefits. The fair value of the Pension Plan's assets available for benefits will fluctuate.

 

There was no contribution required in 2013 to the pension plan. Furthermore, due to ERISA full funding limits, no contribution, whether required or discretionary, could be made and deducted on the corporation's tax return for the current fiscal year.

 

The Company's target asset allocations reflect the Company's investment strategy of maximizing the rate of return on plan assets and the resulting funded status, within an appropriate level of risk. Plan assets are reviewed and, if necessary, rebalanced in accordance with target allocation levels once every three months.

 

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The estimated future benefit payments under the Company's pension plan are as follows (in thousands):

 

    Amounts
       
2014   $ 3,583
2015     3,428
2016     3,286
2017     3,143
2018     3,043
2019-2023     13,444

 

Effect of a 1% change in the discount rate and salary increase rate for the fiscal years ended December 31, 2013 and 2012:

 

   

2013

Discount

Rate

 

2013

Salary

Increase

  

2012

Discount

Rate

  

2012

Salary

Increase

Effect of a 1% increase on:                   
    Net periodic pension cost   $ (20)     (18)  

    Pension benefit obligation

      at year end

  $ (3,509)     (4,287)  
                   
Effect of a 1% decrease on:                  
    Net periodic pension cost   $ 14    --      (1)

    Pension benefit obligation

      at year end

  $ 4,177    (3)   5,165    (5)

 

Effect of a 1% change in the rate of return on assets for the fiscal year ended December 31, 2013:

 

    1% Increase      1% Decrease
           
Net periodic pension cost       $ (575)   575 

 

The Company recognizes the over funded or under funded status of its employee benefit plans as an asset or liability in its consolidated statements of financial position and recognizes changes in its funded status in the year in which the changes occur through comprehensive income. Included in accumulated other comprehensive income at December 31, 2013 and 2012 are the following amounts that have not yet been recognized in net periodic pension cost: unrecognized prior service costs of $27 ($16, net of tax) and $31 ($19, net of tax), respectively, and unrecognized actuarial loss of $9,947 ($6,068, net of tax) and $18,177 ($11,088, net of tax), respectively.

 

The Company maintains a nonqualified deferred compensation arrangement (the "Rabbi Trust") which provides certain former directors of Amfac and their spouses with pension benefits. The Rabbi Trust invests in marketable securities and cash equivalents (Level 1). The deferred compensation liability of approximately $1,012 represented in the Rabbi Trust and assets funding such deferred compensation liability of approximately $75 are consolidated in the Company's consolidated balance sheet.

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(5) Income Taxes

 

Income tax expense/(benefit) attributable to income from continuing operations for the years ended December 31, 2013, 2012 and 2011 consists of:

 

         Current          Deferred        Total   
Year ended December 31, 2013:              
    U.S. federal   $ --    (527)   (527)
    State     --    (59)   (59)
    $ --    (586)   (586)
               
Year ended December 31, 2012:              
    U.S. federal   $ --    574    574 
    State     --    64    64 
    $ --    638    638 
               
Year ended December 31, 2011:              
    U.S. federal   $ --    1,740    1,740 
    State     --    193    193 
    $ --    1,933    1,933 

 

Income tax expense/(benefit) attributable to income from continuing operations differs from the amounts computed by applying the U.S. federal income tax rate of 35 percent to pretax income from operations as a result of the following:

 

    2013       2012         2011  
Provision at statutory rate   $ (1,171)   71    (1,701)

Increase (reduction) in income taxes

  resulting from:

             
    Increase (reduction) in valuation allowance     1,077    241    3,506 
    Other, net     (492)   326    128 
               
          Total   $ (586)   638    1,933 

 

50 

 

During the year ended December 31, 2013, the Company increased its valuation allowance by $1,077 due to the uncertainty regarding future valuation.

 

Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The deferred tax effects of temporary differences at December 31, 2013, 2012 and 2011 are as follows:

 

    December 31,
    2013   2012   2011
Deferred tax assets:                

  Reserves related primarily to losses

    on divestitures

  $ (5,871)   (5,810)   (7,682)
  Loss carryforwards     (11,466)   (10,030)   (8,147)
  Tax credit carryforwards     (2,777)   (2,777)   (2,777)
  Other, net     (892)   (892)   (1,140)
          Total deferred tax assets     (21,006)   (19,509)   (19,746)
          Less – valuation allowance     14,242    13,165    12,924 
          Total deferred tax assets     (6,764)   (6,344)   (6,822)
               
Deferred tax liabilities:              

  Property, plant and equipment, principally

    due to purchase accounting adjustments,

    net of impairment charges

    17,874    18,183    18,264 
  Prepaid pension costs     10,502    7,094    6,833 
          Total deferred tax liabilities     28,376    25,277    25,097 
          Net deferred tax liability   $ 21,612    18,933    18,275 

 

The Company at December 31, 2013 has net operating loss carryforwards ("NOLs") of approximately $48,000 for state income tax purposes which can be used to offset taxable income, if any, in future years. Federal NOLs of approximately $27,700 originated in 2006 and later years and expire over twenty years. State NOLs began to expire in 2010.

 

Federal tax return examinations have been completed for all years through 2005. The statutes of limitations with respect to the Company's taxes for 2010 and subsequent years remain open, subject to possible utilization of loss carryforwards from earlier years. The Company believes adequate provisions for income tax have been recorded for all years, although there can be no assurance that such provisions will be adequate. To the extent that there is a shortfall, any such shortfall for which the Company may be liable could be material.

 

In August 2015, the Company received a notice that its 2013 federal income tax return has been selected for examination. The examination was concluded in December with no changes to reported tax.

51 

 

(6) Transactions with Affiliates

 

An affiliated insurance agency, JMB Insurance Agency, Inc., which has some degree of common ownership with the Company, earns insurance brokerage commissions in connection with providing the placement of insurance coverage for certain of the properties and operations of the Company. Such commissions are believed by management to be comparable to those that would be paid to such affiliate insurance agency in similar dealings with unaffiliated third parties. The total of such commissions for the years ended December 31, 2013, 2012 and 2011 was approximately $16, $20 and $21, respectively.

 

The Company reimburses their affiliates for general overhead expense and for direct expenses incurred on its behalf, including salaries and salary-related expenses incurred in connection with the management of the Company's operations. Generally, the entity that employs the person providing the services receives the reimbursement. Substantially all of such reimbursable amounts were incurred by JMB Realty Corporation or its affiliates, 900 Financial Management Services, LLC, and JMB Financial Advisors, LLC, during 2013, all of which have some degree of common ownership with the Company. The total costs recorded in cost of sales and selling, general and administrative expenses in the consolidated statement of operations for the years ended 2013, 2012 and 2011 were approximately $1,148, $1,517 and $2,476, respectively, of which approximately $52 was unpaid as of December 31, 2013.

 

The Company derives revenue from farming and common area maintenance services and for providing non-potable water to the Kaanapali Coffee Farms Lot Owners Association (“LOA”). The LOA is the association of the owners of the Kaanapali Coffee Farms. The revenues were $1,004, $1,065 and $1,029 for the years ended December 31, 2013, 2012 and 2011, respectively. Such revenue is recognized in the Agriculture Segment as disclosed in footnote 8 Business Segment Information. The 2013 amounts have been eliminated in consolidation.

 

(7) Commitments and Contingencies

 

At December 31, 2013, the Company has no principal contractual obligations related to the land improvements in conjunction with Phase I of the Kaanapali Coffee Farms project.

 

On November 23, 2015, the SEC contacted Kaanapali Land regarding the Company’s compliance with the reporting requirements under Section 13(a) of the Securities Exchange Act of 1934, as the Company is delinquent on its annual and interim SEC filings. In light of this letter, Kaanapali Land is unable to determine whether the SEC might pursue some future action related to this matter.

 

Material legal proceedings of the Company are described below. Unless otherwise noted, the parties adverse to the Company in the legal proceedings described below have not made a claim for damages in a liquidated amount and/or the Company believes that it would be speculative to attempt to determine the Company's exposure relative thereto, and as a consequence believes that an estimate of the range of potential loss cannot be made. Any claims that were not filed on a timely basis under the Plan have been discharged by the Bankruptcy Court and thus the underlying legal proceedings should not result in any liability to the Debtors. All other claims have been satisfied. Proceedings against subsidiaries or affiliates of Kaanapali Land that are not Debtors were not stayed by the Plan and were permitted to proceed. However, two such subsidiaries, Oahu Sugar Company, LLC (“Oahu Sugar”) and D/C Distribution Corporation (“D/C”), filed subsequent petitions for liquidation under Chapter 7 of the Bankruptcy Code in April 2005 and July 2007, respectively, as described below. As a consequence of the Chapter 7 filings, both subsidiaries are not under control of the Company.

52 

 

As a result of an administrative order issued to Oahu Sugar by the Hawaii Department of Health (“HDOH”), Order No. CH 98-001, dated January 27, 1998, Oahu Sugar was engaged in environmental site assessment of lands it leased from the U.S. Navy and located on the Waipio Peninsula. Oahu Sugar submitted a Remedial Investigation Report to the HDOH. The HDOH provided comments that indicated that additional testing may be required. Oahu Sugar responded to these comments with additional information. On January 9, 2004, the Environmental Protection Agency (“EPA”) issued a request to Oahu Sugar seeking information related to the actual or threatened release of hazardous substances, pollutants and contaminants at the Waipio Peninsula portion of the Pearl Harbor Naval Complex National Priorities List Superfund Site. The request sought, among other things, information relating to the ability of Oahu Sugar to pay for or perform a clean up of the land formerly occupied by Oahu Sugar. Oahu Sugar responded to the information requests and had notified both the Navy and the EPA that while it had some modest remaining cash that it could contribute to further investigation and remediation efforts in connection with an overall settlement of the outstanding claims, Oahu Sugar was substantially without assets and would be unable to make a significant contribution to such an effort. Attempts at negotiating such a settlement were fruitless and Oahu Sugar received an order from EPA in March 2005 that would purport to require certain testing and remediation of the site. As Oahu Sugar was substantially without assets, the pursuit of any action, informational, enforcement, or otherwise, would have had a material adverse effect on the financial condition of Oahu Sugar. Counsel for the trustee, EPA, the Navy, and for Fireman’s Fund, one of Kaanapali Land’s insurers, are exploring ways in which to conclude the Oahu Sugar bankruptcy. There are no assurances that such an agreement can be reached.

 

Therefore, as a result of the pursuit of further action by the HDOH and EPA as described above and the immediate material adverse effect that the actions had on the financial condition of Oahu Sugar, Oahu Sugar filed with the United States Bankruptcy Court, Northern District of Illinois, Eastern Division its voluntary petition for liquidation under Chapter 7 of Title 11, United States Bankruptcy Code. Such filing is not expected to have a material adverse effect on the Company as Oahu Sugar was substantially without assets at the time of the filing. While it is not believed that any other affiliates have any responsibility for the debts of Oahu Sugar, the EPA has indicated that it intends to make a claim against Kaanapali Land as further described below, and therefore, there can be no assurance that the Company will not incur significant costs in conjunction with such claim.

 

The deadline for filing proofs of claim with the bankruptcy court passed in April 2006. Prior to the deadline, Kaanapali Land, on behalf of itself and certain subsidiaries, filed claims that aggregated approximately $224,000, primarily relating to unpaid guarantee obligations made by Oahu Sugar that were assigned to Kaanapali Land pursuant to the Plan on the Plan Effective Date. In addition, the EPA and the U.S. Navy filed a joint proof of claim that seeks to recover certain environmental response costs relative to the Waipio Peninsula site discussed above. The proof of claim contained a demand for previously spent costs in the amount of approximately $260, and additional anticipated response costs of between approximately $2,760 and $11,450. No specific justification of these costs, or what they are purported to represent, was included in the EPA/Navy proof of claim. Due to the insignificant amount of assets remaining in the debtor's estate, it is unclear whether the United States Trustee who has taken control of Oahu Sugar will take any action to contest the EPA/Navy claim, or how it will reconcile such claim for the purpose of distributing any remaining assets of Oahu Sugar.

53 

 

EPA has sent three requests for information to Kaanapali Land regarding, among other things, Kaanapali Land's organization and relationship, if any, to entities that may have, historically, operated on the site and with respect to operations conducted on the site. Kaanapali Land responded to these requests for information. By letter dated February 7, 2007, pursuant to an allegation that Kaanapali Land is a successor to Oahu Sugar Company, Limited, a company that operated at the site prior to 1961 ("Old Oahu"), EPA advised Kaanapali that it believes it is authorized by the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) to amend the existing Unilateral Administrative Order against Oahu Sugar Company, LLC, for the clean up of the site to include Kaanapali Land as an additional respondent. The purported basis for the EPA's position is that Kaanapali Land, by virtue of certain corporate actions, is jointly and severally responsible for the performance of the response actions, including, without limitation, clean-up at the site. No such amendment has taken place as of the date hereof. Instead, after a series of discussions between Kaanapali and the EPA, on or about September 30, 2009, the EPA issued a Unilateral Administrative Order to Kaanapali Land for the performance of work in support of a removal action at the former Oahu Sugar pesticide mixing site located on Waipio peninsula. The work consists of the performance of soil and groundwater sampling and analysis, a topographic survey, and the preparation of an engineering evaluation and cost analysis of potential removal actions to abate an alleged "imminent and substantial endangerment" to public health, welfare or the environment. The order appears to be further predicated primarily on the alleged connection of Kaanapali Land to Old Oahu and its activities on the site. Kaanapali Land is currently performing work, including the conduct of sampling at the site, required by the order while reserving its rights to contest liability regarding the site. With regard to liability for the site, Kaanapali Land believes that its liability, if any, should relate solely to a portion of the period of operation of Old Oahu at the site, although in some circumstances CERCLA apparently permits imposition of joint and several liability, which can exceed a responsible party's equitable share. Kaanapali Land believes that the U.S. Navy bears substantial liability for the site by virtue of its ownership of the site throughout the entire relevant period, both as landlord under its various leases with Oahu Sugar and Old Oahu and by operating and intensively utilizing the site directly during a period when no lease was in force. The Company believes that the cost of the work as set forth in the current order will not be material to the Company as a whole; however, in the event that the EPA were to issue an order requiring remediation of the site, there can be no assurances that the cost of said remediation would not ultimately have a material adverse effect on the Company. In addition, if there is litigation regarding the site, there can be no assurance that the cost of such litigation will not be material or that such litigation will result in a judgment in favor of the Company. Currently, Kaanapali and the EPA are exchanging comments relative to further studies to be performed at the site, including a possible ecological risk assessment. Kaanapali expects that after a further review, the next phase is likely a consideration of the remedial alternatives for the Site.

 

On February 11, 2015, the Company filed a complaint for declaratory judgment, bad faith and damages against Fireman’s Fund Insurance Company (“Fireman’s Fund”) in the Circuit Court of the First Circuit, State of Hawaii, Civil No. 15-1-0239-02, in connection with costs and expenses it has incurred or may incur in connection with the Waipio site. In the five-count complaint, the Company seeks, among other things, a declaratory judgment of its rights under various Fireman’s Fund policies and an order that Fireman’s Fund defend and indemnify Kaanapali Land from all past, present and future costs and expenses in connection with the site, including costs of investigation and defense incurred by Kaanapali and the professionals it has engaged. In addition, Kaanapali seeks general, special, and punitive damages, prejudgment and post judgment interest, and such other legal or equitable relief as the court deems just and proper. Fireman’s Fund has not yet filed a responsive pleading. There are no assurances of the amounts of insurance proceeds that may or may not be ultimately recovered.

54 

 

Kaanapali Land, as successor by merger to other entities, and D/C have been named as defendants in personal injury actions allegedly based on exposure to asbestos. While there are relatively few cases that name Kaanapali Land, there were a substantial number of cases that were pending against D/C on the U.S. mainland (primarily in California). Cases against Kaanapali Land (hereafter, “Kaanapali Land asbestos cases”) are allegedly based on its prior business operations in Hawaii and cases against D/C are allegedly based on sale of asbestos-containing products by D/C's prior distribution business operations primarily in California. Each entity defending these cases believes that it has meritorious defenses against these actions, but can give no assurances as to the ultimate outcome of these cases. The defense of these cases has had a material adverse effect on the financial condition of D/C as it has been forced to file a voluntary petition for liquidation as discussed below. Kaanapali Land does not believe that it has liability, directly or indirectly, for D/C's obligations in those cases. Kaanapali Land does not presently believe that the cases in which it is named will result in any material liability to Kaanapali Land; however, there can be no assurance in that regard.

 

On February 12, 2014, counsel for Fireman’s Fund, the carrier that has been paying defense costs and settlements for the Kaanapali Land asbestos cases, stated that it would no longer advance fund settlements or judgments in the Kaanapali Land asbestos cases due to the pendency of the D/C and Oahu Sugar bankruptcies. In its communications with Kaanapali Land, Fireman’s fund expressed its view that the automatic stay in effect in the D/C bankruptcy case bars Fireman’s Fund from making any payments to resolve the Kaanapali Land asbestos claims because D/C Distribution is also alleging a right to coverage under those policies for asbestos claims against it. However, in the interim, Fireman’s Fund advised that it presently intends to continue to pay defense costs for those cases, subject to whatever reservations of rights may be in effect and subject further to the policy terms. Fireman’s Fund has also indicated that to the extent that Kaanapali Land cooperates with Fireman’s Fund in addressing settlement of the Kaanapali Land asbestos cases through coordination with its adjusters, it is Fireman’s Fund’s present intention to reimburse any such payments by Kaanapali Land, subject, among other things, to the terms of any lift-stay order, the limits and other terms and conditions of the policies, and prior approval of the settlements. Kaanapali Land continues to pursue discussions with Fireman’s Fund in an attempt to resolve the issues, however, Kaanapali Land is unable to determine what portion, if any, of settlements or judgments in the Kaanapali Land asbestos cases will be covered by insurance.

 

On February 15, 2005, D/C was served with a lawsuit entitled American & Foreign Insurance Company v. D/C Distribution and Amfac Corporation, Case No. 04433669 filed in the Superior Court of the State of California for the County of San Francisco, Central Justice Center. No other purported party was served. In the eight-count complaint for declaratory relief, reimbursement and recoupment of unspecified amounts, costs and for such other relief as the court might grant, plaintiff alleged that it is an insurance company to whom D/C tendered for defense and indemnity various personal injury lawsuits allegedly based on exposure to asbestos containing products. Plaintiff alleged that because none of the parties have been able to produce a copy of the policy or policies in question, a judicial determination of the material terms of the missing policy or policies is needed. Plaintiff sought, among other things, a declaration: of the material terms, rights, and obligations of the parties under the terms of the policy or policies; that the policies were exhausted; that plaintiff is not obligated to reimburse D/C for its attorneys' fees in that the amounts of attorneys' fees incurred by D/C have been incurred unreasonably; that plaintiff was entitled to recoupment and reimbursement of some or all of the amounts it has paid for defense and/or indemnity; and that D/C breached its obligation of cooperation with plaintiff. D/C filed an answer and an amended cross-claim. D/C believed that it had meritorious defenses and positions, and intended to vigorously defend. In addition, D/C believed that it was entitled to amounts from plaintiffs for reimbursement and recoupment of amounts expended by D/C on the lawsuits previously tendered. In order to fund such action and its other ongoing obligations while such lawsuit continued, D/C entered into a Loan Agreement and Security Agreement with Kaanapali Land, in August 2006, whereby Kaanapali Land provided certain advances against a promissory note delivered by D/C in return for a security interest in any D/C insurance policy at issue in this lawsuit. In June 2007, the parties settled this lawsuit with payment by plaintiffs in the amount of $1,618. Such settlement amount was paid to Kaanapali Land in partial satisfaction of the secured indebtedness noted above.

55 

 

Because D/C was substantially without assets and was unable to obtain additional sources of capital to satisfy its liabilities, D/C filed with the United States Bankruptcy Court, Northern District of Illinois, its voluntary petition for liquidation under Chapter 7 of Title 11, United States Bankruptcy Code during July 2007, Case No. 07-12776. Such filing is not expected to have a material adverse effect on the Company as D/C was substantially without assets at the time of the filing. Kaanapali Land filed claims in the D/C bankruptcy that aggregated approximately $26,800, relating to both secured and unsecured intercompany debts owed by D/C to Kaanapali Land. In addition, a personal injury law firm based in San Francisco that represents clients with asbestos-related claims, filed proofs of claim on behalf of approximately two thousand claimants. While it is not likely that a significant number of these claimants have a claim against D/C that could withstand a vigorous defense, it is unknown how the trustee will deal with these claims. It is not expected, however, that the Company will receive any material additional amounts in the liquidation of D/C.

 

On or about April 28, 2015, eight litigants who filed asbestos claims in California state court (hereinafter, “Petitioners”) filed a motion for relief from the automatic stay in the D/C bankruptcy (hereinafter “life stay motion”). Under relevant provisions of the bankruptcy rules and on the filing of the D/C bankruptcy action, all pending litigation claims against D/C were stayed pending resolution of the bankruptcy action. In their motion, Petitioners asked the bankruptcy court to lift the stay in the bankruptcy court to name D/C and/or its alternate entities as defendants in their respective California state court asbestos actions and to satisfy their claims against insurance policies that defend and indemnify D/C and/or their alternate entities. The Petitioner’s motion to lift stay thus in part has as an objective ultimate recovery, if any, from, among other things, insurance policy proceeds that were allegedly assets of both the D/C and Oahu Sugar bankruptcy estates. As noted above, Kaanapali, the EPA, and the Navy are claimants in the Oahu Sugar bankruptcy and the Fireman’s Fund policies are allegedly among the assets of the Oahu Sugar bankruptcy estate as well. For this and other reasons, Kaanapali, the EPA and the Navy opposed the motion to lift stay. After briefing and argument, on May 14, 2015, the United States Bankruptcy Court, for the Northern District of Illinois, Eastern Division, in In Re D/C Distribution, LLC, Bankruptcy Case No. 07-12776, issued an order lifting the stay. In the order, the court permitted the Petitioners to “proceed in the applicable nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law. Claimants are entitled to settle or enforce their claims only by collecting upon any available insurance Debtor’s liability to them in accordance with applicable nonbankruptcy law. No recovery may be made directly against the property of Debtor, or property of the bankruptcy estate.” Kaanapali, Fireman’s Fund, and the United States government on behalf of the EPA and the Navy have appealed the decision.

 

The attorneys for the trustee in the D/C bankruptcy have reached out to the various claimants noted above to determine if there is any interest in pursuing a global settlement of the claims in the Oahu Sugar and D/C bankruptcies insofar as the Fireman’s Fund insurance policies are concerned. If such discussions take place, they may involve some form of resolution of Kaanapali’s interest in various of the Fireman’s Fund insurance policies for Kaanapali’s various and future insurance claims. Kaanapali may consider entering into such discussions, but there is no assurance that such discussions will take place or prove successful in resolving any of the claims in whole or in part.

 

56 

 

On or about February 13, 2013, PM Land Company received demand to mediate a dispute arising in connection with the contract for sale of a lot in the Kaanapali Coffee Farms subdivision. PM Land held the sum of $450,000 as a result of the sale to the claimants that did not proceed to closing. Claimants sought, among other things, cancellation of the contract, the return of the amounts of money still on deposit, treble damages, attorneys’ fees and costs. PM Land Company mediated, settled this matter and retained $150,000 of the deposit.

 

The Company has received notice from Hawaii’s Department of Land and Natural Resources (“DNLR”) that DNLR on a periodic basis would inspect all significant dams and reservoirs in Hawaii, including those maintained by the Company on Maui in connection with its agricultural operations. A series of such inspections have taken place over the period from 2006 through the most recent inspections that occurred in January 2013. To date, the DLNR has cited certain deficiencies concerning two of the Company’s reservoirs relating to dam and reservoir safety standards established by the State of Hawaii. These deficiencies include, among other things, vegetative overgrowth, erosion of slopes, uncertainty of inflow control, spillway capacity, and freeboard. The Company has taken certain corrective actions as well as updating important plans to address emergency events and basic operations and maintenance. In 2012, the State of Hawaii issued new Hawaii Administrative Rules for Dams and Reservoirs which require dam owners to obtain from DLNR Certificates of Impoundment (“permits”) to operate and maintain dams or reservoirs. Obtaining such permits requires owners to completely resolve all cited deficiencies. Therefore, the process may involve further analysis of dam and reservoir safety requirements, which would likely involve hiring specialized engineering consultants, and ultimately could result in significant and costly improvements which may be material to the Company.

 

The DLNR categorizes the reservoirs as "high hazard" under State of Hawaii Administrative Rules and State Statutes concerning dam and reservoir safety. This classification, which bears upon government oversight and reporting requirements, may increase the cost of managing and maintaining these reservoirs in a material manner. The Company does not believe that this classification is warranted for either of these reservoirs and has initiated a dialogue with DLNR in that regard. In April 2008, the Company received further correspondence from DLNR that included the assessment by their consultants of the potential losses that result from the failure of these reservoirs. In April 2009, the Company filed a written response to DLNR to correct certain factual errors in its report and to request further analysis on whether such "high hazard" classifications are warranted. It is unlikely that the “high hazard” designation will be changed.

 

Other than as described above, the Company is not involved in any material pending legal proceedings, other than ordinary routine litigation incidental to its business. The Company and/or certain of its affiliates have been named as defendants in several pending lawsuits. While it is impossible to predict the outcome of such routine litigation that is now pending (or threatened) and for which the potential liability is not covered by insurance, the Company is of the opinion that the ultimate liability from any of this litigation will not materially adversely affect the Company's consolidated results of operations or its financial condition.

 

The Company often seeks insurance recoveries under its policies for costs incurred or expected to be incurred for losses or claims under which the policies might apply. While payouts from various coverages are being sought and may be recovered in the future, no anticipatory amounts have been reflected in the Company’s consolidated financial statements.

57 

 

Kaanapali Land Management Corp. (KLMC) is a party to an agreement with the State of Hawaii for the development of the Lahaina Bypass Highway. An approximate 2.4 mile portion of this two lane state highway has been completed. The more significant portion remains uncompleted.

 

Under certain circumstances, which have not yet occurred, KLMC remains committed for approximately $1,100 of various future costs relating to the planning and design of the uncompleted portion of the Bypass Highway. Under certain conditions, which have not yet been met, KLMC has agreed to contribute an amount not exceeding $6,700 toward construction costs. Any such amount contributed would be reduced by the value of KLMC’s land actually contributed to the State for the Bypass Highway.

 

These potential commitments have not been reflected in the accompanying consolidated financial statements. While the completion of the Bypass Highway would add value to KLMC’s lands north of the town of Lahaina, there can be no assurance that it will be completed or when any future phases will be undertaken.

 

 

(8) Business Segment Information

 

As described in Note 1, the Company operates in two business segments. Total revenues, operating profit, identifiable assets, capital expenditures, and depreciation and amortization by business segment are presented in the tables below.

 

Total revenues by business segment include primarily (i) sales, all of which are to unaffiliated customers and (ii) interest income that is earned from outside sources on assets which are included in the individual industry segment's identifiable assets.

 

Operating income (loss) is comprised of total revenue less cost of sales and operating expenses. In computing operating income (loss), none of the following items have been added or deducted: general corporate revenues and expenses, interest expense and income taxes.

 

Identifiable assets by business segment are those assets that are used in the Company's operations in each industry. Corporate assets consist principally of cash and cash equivalents, prepaid pension costs and receivables related to previously divested businesses.

58 

 

    2013   2012   2011
Revenues:              
    Property   $ 5,838    2,047    2,103 
    Agriculture     2,979    3,070    3,336 
    Corporate     14    23    54 
    $ 8,831    5,140    5,493 
               
Operating income (loss):              
    Property   $ (2,038)   (1,149)   (1,929)
    Agriculture     611    320    255 
               
Operating income (loss)     (1,427)   (829)   (1,674)
               
Corporate     (1,974)   1,049    (3,196)
               

Operating income (loss) from continuing

  operations before income taxes

  $ (3,401)   220    (4,870)
               
Identifiable Assets:              
    Property   $ 39,357    41,483    41,570 
    Agriculture     58,125    57,026    56,811 
               
      97,482    98,509    98,381 
               
Corporate     34,137    28,380    34,401 
               
    $ 131,619    126,889    132,782 

 

The Company’s property segment consists primarily of revenue received from land sales and lease and licensing agreements.

 

The Company’s agricultural segment currently consists of coffee operations. Seed corn operations formerly were under a contract with Monsanto Seed Company which expired June 30, 2012.

 

The Company is exploring alternative agricultural operations, but there can be no assurance that replacement operations at any level will result.

 

The Company reclassified revenues and operating income (loss) from coffee operations reported in the property segment in 2012 and 2011 to the agriculture segment of $977 and $459, respectively.

59 

 

Agricultural identified assets include land classified as agricultural or conservation for State and County purposes.

 

    2013   2012   2011
Capital Expenditures:                
    Property   $ 748    251    505 
    Agriculture     69    173    273 
    $ 817    424    778 
               
Depreciation and Amortization:              
    Property   $ 59    61    75 
    Agriculture     173    225    201 
Total   $ 232    286    276 

 

 

(9) Calculation of Net Income Per Share

 

The following tables set forth the computation of net income (loss) per share - basic and diluted:

 

   

Year Ended

   December 31,   

2013

  

Year Ended

December 31,

2012

  

Year Ended

December 31,

2011

    (Amounts in thousands except per share amounts)
Numerator:              

Net income (loss) attributable to

     stockholders

  $ (2,964)   (418)   (6,803)
               
Denominator:              

Number of weighted average shares

     outstanding

    1,845    1,845    1,845
               
Net income (loss) per share – basic

     and diluted

  $ (1.61)   (0.23)   (3.69)

 

As of December 31, 2013, the Company had issued and outstanding 1,792,613 Shares and 52,000 Class C Shares. The LLC Agreement initially provided for two classes of membership interests, Class A Shares and Class B Shares, which had substantially identical rights and economic value under the LLC Agreement; except that holders of Class A Shares were represented by a "Class A Representative" who was required to approve certain transactions proposed by Kaanapali Land before they could be undertaken. Class B Shares were held by Pacific Trail and various entities and individuals that are affiliated with Pacific Trail. Class A Shares were issued under the Plan to claimants who had no such affiliation. Pursuant to the LLC Agreement, the Class A Shares and Class B Shares were automatically redesignated as Common Shares on November 15, 2007. Accordingly, the Company's Class A Shares and Class B Shares ceased to exist separately on November 15, 2007. The Class C Shares have the same rights as the Shares except that the Class C Shares will not participate in any distributions until the holders of the Shares have received aggregate distributions equal to $19 per share, subject to customary antidilution adjustments. Net income per share data are based on the aggregate 1,844,613 outstanding shares.

 

60 

 

(10) Subsequent Events

 

In September 2014, Kaanapali Land Management Corp. (“KLMC”), pursuant to a property and option purchase agreement with an unrelated third party, closed on the sale of an approximate 14.9 acre parcel in West Maui. The purchase price was $3,300, paid in cash at closing. The agreement commits KLMC to fund up to between $803 and $1,008, depending on various factors, for off-site roadway, water, sewer and electrical improvements that will also provide service to other KLMC properties. The purchaser was also granted an option for the purchase of an adjacent site of approximately 18.5 acres for $4,078, of which $525 was paid in cash upon the closing of the 14.9 acre site. The nonrefundable $525 option payment can be applied to the purchase of the 18.5 acre site. The option expires in September 2017. The 14.9 acre site is intended to be used for a hospital, skilled nursing facility, assisted living facility, and medical offices, and the option site is intended to be used for other medical and health related facilities.

 

In October 2014, through a limited liability company of which KLMC was the manager, a sale was made to an unrelated third party of an approximate 7.65 acre parcel in West Maui commonly referred to as Lot 10-H. KLMC received proceeds from the sale of approximately $1,300.

 

As of December 31, 2013, the Company sold 18 of the 51 lots at Kaanapali Coffee Farms. In the first quarter of 2014, three additional lots were sold. In the second quarter of 2014, seven lots were sold and in the fourth quarter of 2014, three lots were sold. In 2015, two lots were sold in the first quarter, one was sold in the second quarter and one in the third quarter. In conjunction with the sale of four of the lots sold in 2014, in addition to cash proceeds, the Company received promissory notes. As of November 1, 2015, $1,208 remains outstanding.

 

The Pension Plan determines its accumulated and projected benefit obligation in part based on mortality tables. If the mortality table issued in November 2014 had been used to determine the benefit obligation as of December 31, 2013, such obligation would be greater, and the prepaid pension cost would be less than reflected in the accompanying consolidated financial statements. Any such difference would not have an effect on the Company’s operations or liquidity.

 

On December 23, 2015 Pioneer Mill Company, LLC entered into a property purchase agreement with an unrelated third party for the sale of an approximate 19 acre site in Lahaina, known as the Pioneer Mill Site. The agreement, which calls for a purchase price of $20,500 and has a scheduled closing date of April 30, 2016, has significant conditions to closing, including investigation and evaluation by the purchaser during the due diligence period. Accordingly there can be no assurance that the sale will be completed under the existing or any other terms. If the agreement is consummated, the Company will likely incur significant costs for the relocation of certain buildings and equipment on the property and be subject to certain warranties and representations that will survive the closing of the transaction. If closing were to occur, all net proceeds are expected to be retained by the Company for future working capital and other needs.

 

 

61 

 

(11) Supplementary Quarterly Data (Unaudited)

 

 

    2013
   

Quarter

ended

      3/31     

  

Quarter

ended

    6/30    

  

Quarter

ended

    9/30   

  

Quarter

ended

   12/31   

Total revenues   $ 2,676    1,386    508    4,261 
                   

Net income (loss)

     attributable to

    stockholders

  $ 81    154    (733)   (2,466)
                   

Net income (loss) per Share –

    basic and diluted

  $ 0.04    0.08    (0.40)   (1.34)

 

    2012
   

Quarter

ended

3/31

  

Quarter

ended

6/30

  

Quarter

ended

9/30

  

Quarter

ended

12/31

Total revenues   $ 1,121    1,282    1,276    1,461 
                   
Net income (loss)   $ (835)   (409)   (635)   1,461 
                   

Net income (loss) per Share –

    basic and diluted

  $ (0.45)   (0.22)   (0.35)   0.79 

 

    2011
   

Quarter

ended

3/31

  

Quarter

ended

6/30

  

Quarter

ended

9/30

  

Quarter

ended

12/31

Total revenues   $ 2,286    1,253   998    956 
                   
Net income (loss)   $ (87)   (872)   (687)   (5,157)
                   

Net income (loss) per Share –

    basic and diluted

  $ (0.05)   (0.47)   (0.37)   (2.80)

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Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

 

There were no disagreements with the accountants during the fiscal years 2013, 2012 and 2011.

 

In 2013, the Company hired McGladrey, LLP (“McGladrey”) to provide auditing and tax services for the Company. In August 2014, the Company dismissed McGladrey as their independent registered public accounting firm. In March 2015, the Company approved the engagement of Grant Thornton, LLP (“Grant Thornton”) as its independent registered public accounting firm.

 

Item 9A. Controls and Procedures

 

Disclosure Controls and Procedures

 

The principal executive officer and the principal financial officer of the Company have evaluated the effectiveness of the Company's disclosure controls and procedures as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") as of the end of the period covered by this report. Based on such evaluation, the principal executive officer and the principal financial officer have concluded that, as of the end of such period, the Company's disclosure controls and procedures were not effective, due to the material weakness described below.

 

Internal Control Over Financial Reporting

 

The Company's management is responsible for establishing and maintaining adequate internal control over financial reporting as such term is defined in Rule 13a-15(f) under the Exchange Act. Under the supervision and with the participation of management including the principal executive officer and the principal financial officer management conducted an evaluation of the effectiveness of internal control over financial reporting based on the 1992 framework in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can only provide reasonable assurances with respect to financial statement preparation and presentation.

 

A material weakness is a deficiency, or combination of control deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of the registrant’s annual or interim financial statements will not be prevented or detected on a timely basis. As a result of our evaluation of our internal control over financial reporting for the year ended December 31, 2013, management identified a material weakness related to management’s analysis of the appropriate accounting treatment regarding the consolidation of Kaanapali Coffee Farms Lot Owners Association.

 

The deficiency described above was detected while preparing the financial statements for the year ended December 31, 2013. Because of this material weakness, management concluded that the Company did not maintain effective control over financial reporting as of December 31, 2013.

 

This annual report does not include an attestation report of the Company's independent registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by the Company's independent registered public accounting firm pursuant to temporary rules of the Security and Exchange Commission that permit the Company to provide only management's report in this annual report.

 

Item 9B. Other Information

 

Not Applicable.

63 

 

Part III

 

 

Item 10. Directors, Executive Officers, and Corporate Governance of the Registrant

 

The sole managing member of Kaanapali Land, LLC is Pacific Trail, which is also Kaanapali Land's largest shareholder. Pacific Trail manages the business of Kaanapali Land pursuant to the terms of the LLC Agreement. Although the executive officers of Kaanapali Land are empowered to manage its day-to-day business affairs, under the LLC Agreement, most significant actions of Kaanapali Land outside the ordinary course of business must first be authorized by Pacific Trail, which is responsible and has full power and authority to do all things deemed necessary and desirable by it to conduct the business of Kaanapali Land. Pacific Trail may be removed as manager in certain specified circumstances. As of March 31, 2011, the executive officers and certain other officers of the Company were as follows:

 

Name      Position Held with the Company
     
Gary Nickele   President and Chief Executive Officer
Stephen A. Lovelette   Executive Vice President
Gailen J. Hull   Senior Vice President and Chief Financial Officer

 

Certain of these officers are also officers and/or directors of JMB Realty Corporation ("JMB") and numerous affiliated companies of JMB (hereinafter collectively referred to as "JMB affiliates"). JMB affiliates outside of the Company have not materially engaged in the agriculture business and have primarily purchased, or made mortgage loans securing, existing commercial, retail, office, industrial and multi-family residential rental buildings or have owned or operated hotels on various other hospitality businesses. However, certain partnerships sponsored by JMB and other affiliates of JMB were previously engaged in land development activities including planned communities, none of which are in Hawaii.

 

There is no family relationship among any of the foregoing officers.

 

The LLC Agreement also provided for the appointment of a "Class A Representative" to monitor the activities of Kaanapali Land on behalf of its Class A Shareholders. The Class A Representative who was independent was entitled to receive certain information from Kaanapali Land and was required to approve certain actions that Kaanapali Land took outside the course of business primarily related to debt that might be obtained from affiliated parties. Pursuant to the LLC Agreement, the Class A Shares and Class B Shares were automatically redesignated as Common Shares on November 15, 2007. Accordingly, the Company's Class A Shares and Class B Shares ceased to exist separately on November 15, 2007. Reference is also made to Item 12 for more information.

 

There are no arrangements or understandings between or among any of said officers and any other person pursuant to which any officer was selected as such.

64 

 

The following table sets forth certain business experience during the past five years of such officers of the Company.

 

Gary Nickele (age 61) has been Manager of KLC Land since August, 2000 and President of KLC Land and certain of its subsidiaries since February 2001. He has been the President of Kaanapali Land since May 2002. Mr. Nickele is also the President and Director of Arvida Company, the administrator of ALP Liquidating Trust, which exists to manage the liquidation of the former business of Arvida/JMB Partners, L.P. ("Arvida Partners"). From October 1987 until September 2005, Arvida Partners conducted land development activities primarily in Florida. Mr. Nickele has been associated with JMB and Arvida Partners since February, 1984 and September, 1987, respectively. He holds a J.D. degree from the University of Michigan Law School and is a member of the Bar of the State of Illinois. Mr. Nickele's experience relative to JMB, the Company and Arvida Partners during the past five years has included overall responsibility for all legal matters, oversight of the operations of the Company and Arvida Partners, including matters relating to property development and sales and general personnel and administrative functions. During the past five years, Mr. Nickele has also been an Executive Vice President of JMB.

 

Stephen Lovelette (age 57) has been an Executive Vice President of KLC Land since 2000 and Kaanapali Land since May 2002. Mr. Lovelette is in charge of implementing the Kaanapali 2020 development plan. Mr. Lovelette has been associated with JMB and its affiliates for over 20 years. Prior to joining an affiliate of JMB, Mr. Lovelette worked for Arvida Corporation, the predecessor to Arvida Partners, under its previous ownership. Mr. Lovelette holds a bachelor's degree from The College of the Holy Cross and an MBA from Seton Hall University. In addition, Mr. Lovelette has extensive experience in corporate finance and has been responsible for obtaining substantial financial commitments from institutional lenders relating to the assets of JMB and Arvida Partners. During the past five years, Mr. Lovelette has also been a Managing Director of JMB.

 

Gailen J. Hull (age 65) is Senior Vice President and, since August 2002, Chief Financial Officer of Kaanapali Land. Mr. Hull has been associated with JMB since March, 1982. He holds a Master’s degree in Business Administration from Northern Illinois University and is a Certified Public Accountant. Mr. Hull has substantial experience in the management of the accounting and financial reporting functions of both public and private entities, primarily including those of JMB, Arvida Partners, the Company and their respective affiliates. During the past five years, Mr. Hull has also been a Senior Vice President of JMB.

 

It is currently anticipated that Gary Nickele will devote 25 to 50 percent of his time to the operations of the Company. The percentage is largely dependent upon potential land sale transactions, the entitlement processes relating to various land parcels and other matters (including attention devoted to litigation, overhead, staffing and operations).

 

In light of the fact that the Company's shares are not publicly traded, the Company is a limited liability company and the rights of members are governed by the limited liability company agreement, the Company has determined that it is not necessary to have a separately designated audit committee, compensation committee, an audit committee financial expert or a code of ethics that applies to its principal executive, financial or accounting officers as those terms are defined in the rules and regulations of the SEC.

65 

 

Item 11. Executive Compensation

 

Certain of the officers of the Company listed in Item 10 above are officers of JMB and are compensated by JMB or an affiliate thereof (other than the Company and its subsidiaries). The Company will reimburse JMB, Pacific Trail and their affiliates for any expenses incurred while providing services to the Company.

 

Summary Compensation Table

 

Annual Compensation (1)(3)

 

Name (2)    Principal Position    Year   

Salary

($)

  

Bonus

($)

  

Other Annual

Compensation

($)

  

   Total   

($)

                         
Gary Nickele   President and   2013   115,000   10,000   N/A   125,000
    Chief Executive Officer   2012   180,000   10,000   N/A   190,000
        2011   180,000   100,000   N/A   280,000
                         

Stephen A

   Lovelette

  Executive Vice President   2013   165,000   25,000   N/A   190,000
        2012   200,000   25,000   N/A   225,000
        2011   255,000   100,000   N/A   355,000
                         
Gailen J. Hull   Senior Vice President and   2013   115,000   10,000   N/A   125,000
    Chief Financial Officer   2012   175,000   15,000   N/A   190,000
        2011   175,000   50,000   N/A   225,000

 

(1) The Company does not have a compensation committee. Executive officer compensation was determined through deliberations with Pacific Trail representatives.

 

(2) Includes CEO and all other executive officers.

 

(3) Salary and bonus amounts for Messrs. Nickele, Lovelette and Hull represent the portion of total compensation allocated and charged to the Company.

66 

 

Item 12.  Security Ownership of Certain Beneficial Owners and Management and

                Related Stockholder Matters

 

Title of Class    

Name and Address

of Beneficial Owner

   

Amount and Nature

of Beneficial Ownership

         
Common Shares  

Pacific Trail Holdings, LLC

900 North Michigan Avenue

Chicago, IL 60611

 

1,466,573 Shares owned directly (81.8% of the Common Shares)

(1) (2)

 

(1)      The sole managing member of Pacific Trail, Pacific Trail Holdings, Inc. ("PTHI"), may be deemed to beneficially own the Shares owned by Pacific Trail. PTHI disclaims beneficial ownership with respect to any of the shares owned by Pacific Trail. Each of the shareholders of PTHI may be deemed to own the Common Shares owned by Pacific Trail. Each of such shareholders, being Gary Nickele, Gailen Hull and Stephen A. Lovelette, disclaims beneficial ownership with respect to any of the shares owned by Pacific Trail. The addresses of PTHI and Messrs. Nickele, Hull and Lovelette are the same as for Pacific Trail.
     
(2)   As of November 1, 2015, there were approximately 1,792,613 Common Shares and 52,000 Class C Shares issued and outstanding.

 

No other person including any officer of the Company is known by the Company to beneficially own in excess of 5% of the Common Shares issued, outstanding and distributed.

 

 

Item 13. Certain Relationships and Related Transactions

 

An affiliated insurance agency, JMB Insurance Agency, Inc., which has some degree of common ownership with the Company, earns insurance brokerage commissions in connection with providing the placement of insurance coverage for certain of the properties and operations of the Company. Such commissions are comparable to those that would be paid to such affiliate insurance agency in similar dealings with unaffiliated third parties, and are generally paid by the insurance carriers that the agency represents out of the premiums paid by the Company for such coverage. The total of such commissions for the years ended December 31, 2013, 2012 and 2011 was approximately $16 thousand, $20 thousand and $21 thousand, respectively, all of which was paid as of December 31, 2013.

 

The Company reimburses its affiliates for general overhead expense and for direct expenses incurred on its behalf, including salaries and salary-related expenses incurred in connection with the management of the Company's operations. Generally, the entity that employs the person providing the services receives the reimbursement. Substantially all of such reimbursable amounts were incurred by JMB Realty Corporation or its affiliates, 900 Financial Management Services, LLC, and JMB Financial Advisors, LLC during 2013, all of which have some degree of common ownership with the Company. The total costs for the years ended December 31, 2013, 2012 and 2011 was approximately $1.1 million, $1.5 million and $2.5 million, respectively, of which approximately $52 thousand was unpaid as of December 31, 2013.

 

The Company derives revenue from farming and common area maintenance services and for providing non-potable water to the Kaanapali Coffee Farms Lot Owners Association (“LOA”). The LOA is the association of the owners of the Kaanapali Coffee Farms. The revenues were $1.0 million, $1.1 million and $1.0 million for the years ended December 31, 2013, 2012 and 2011, respectively. The 2013 amounts have been eliminated in consolidation.

 

67 

 

In light of the fact that the Company's shares are not publicly traded, is a limited liability company, and has no independent outside directors or managers, it has no formal policy or procedure for the review, approval or ratification of related party transactions that are required to be disclosed pursuant to Item 404 of Regulation S-K.

 

 

Item 14. Principal Accounting Fees and Services

 

In 2013, the Company hired McGladrey, LLP (“McGladrey”) to provide auditing and tax services for the Company. In August 2014, the Company dismissed McGladrey as their independent registered public accounting firm. In March 2015, the Company approved the engagement of Grant Thornton, LLP (“Grant Thornton”) as its independent registered public accounting firm. The fees billed by Grant Thornton for the years ended December 31, 2014 and 2013 are as follows:

 

(1) Audit Fees

 

The aggregate fees billed for the years ended December 31, 2014 and 2013 for professional services for the audit of the Company’s consolidated financial statements were approximately $214 thousand.

 

(2) Audit Related Fees

 

None

 

(3) Tax Fees

 

None

 

Prior to the hiring of Grant Thornton, the principal auditor of the Company was Ernst & Young LLP (“E&Y”).

 

The aggregate audit fees incurred for professional services by E&Y in 2012 and 2011 were $249 thousand and $249 thousand, respectively. In accordance with the SEC's definitions and rules, "audit fees" are fees the Company paid E&Y for professional services for the audit of the Company's consolidated financial statements included in Form 10-K and review of financial statements included in Form 10-Qs, and for services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements. There were no non-audit related, tax or other services provided by E&Y.

 

The Company has not adopted any pre-approval policies and procedures. All audit and permitted non-audit services are approved by the managing member of the Company before the service is undertaken.

68 

 

Part IV

 

Item 15. Exhibits, Financial Statement Schedules

 

  (a) Exhibits.
    2.1 Order Confirming Second Amendment Joint Plan of Reorganization Dated June 1, 2002, including as an exhibit thereto, the Second Amended Joint Plan of Reorganization of Amfac Hawaii, LLC, Certain of its Subsidiaries and FHT Corporation Under Chapter 11 of the Bankruptcy Code incorporated herein by reference the Amfac Hawaii, LLC Current Report on Form 8-K for July 29, 2002 dated August 13, 2002 (File No. 33-24180).
       
    2.2 Second Amended Disclosure Statement with Respect to Joint Plan of Reorganization of Amfac Hawaii, LLC, Certain of its Subsidiaries and FHT Corporation Under Chapter 11 of the Bankruptcy Code, incorporated herein by reference from the Amfac Hawaii, LLC Current Report on Form 8-K for July 29, 2002 dated August 13, 2002 (File No. 33-24180).
       
    3.1 Amended and Restated Limited Liability Company Agreement of Kaanapali Land, LLC dated November 14, 2002 filed as an exhibit to the Company's Form 10 filed May 1, 2003 and hereby incorporated by reference.
       
    10.1 Service Agreement, dated November 18, 1988, between Amfac/JMB Hawaii, Inc., and Amfac Property Development Corp.; Amfac Property Investment Corp.; Amfac Sugar and Agribusiness, Inc.; Kaanapali Water Corporation; Amfac Agribusiness, Inc.; Kekaha Sugar Company, Limited; The Lihue Plantation Company; Oahu Sugar Company, Limited; Pioneer Mill Company, Limited; Puna Sugar Company, Limited; H. Hackfeld & Co., Ltd.; and Waiahole Irrigation Company, Limited and JMB Realty Corporation, incorporated herein by reference to the Amfac Hawaii, LLC Annual Report on Form 10-K filed on March 22, 1989 (File No. 33-24180) for the year ended December 31, 1988.
       
    21. List of Subsidiaries
       
    31.1 Certification of Chief Executive Officer pursuant to Rule 13a-14(a) is filed herewith.
       
    31.2 Certification of Chief Financial Officer pursuant to Rule 13a-14(a) is filed herewith.
       
    32. Certifications pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 are filed herewith.
       
          (1) Previously filed as exhibits to Amfac Hawaii, LLC's Registration Statement on Form S-1 (as amended) under the Securities Act of 1933 (File No. 33-24180) and hereby incorporated by reference.

 

69 

 

Signatures

 

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

       Kaanapali Land, LLC
     
  By:

Pacific Trail Holdings, LLC

(Sole Managing Member)

     
    /s/ Gailen J. Hull
  By:

Gailen J. Hull

Senior Vice President

  Date: December 29, 2015

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

           
     
     
    /s/ Gailen J. Hull
  By:      

Gailen J. Hull

Senior Vice President, Chief Accounting Officer

and Chief Financial Officer

  Date: December 29, 2015
     
     
     
    /s/ Gary Nickele
  By:

Gary Nickele

President and Chief Executive Officer

  Date: December 29, 2015

70