EX-4 4 agcreditamend.txt SIXTH AMENDMENT TO TERM LOAN AGREEMENT EFFECTIVE AS OF JUNE 30, 2003 SIXTH AMENDMENT TO TERM LOAN AGREEMENT This Amendment to Term Loan Agreement ("Amendment") is entered into this 30th day of July, 2003, and is effective as of June 29, 2003, by and between American AgCredit, FLCA successor in interest to Pacific Coast Farm Credit Services, ACA ("Lender") and Maui Land & Pineapple Company, Inc., a Hawaii corporation (the "Borrower"). RECITALS A. Borrower and Lender executed a Term Loan Agreement dated June 1, 1999 ( the "Agreement") which was amended on February 16, 2000, May 16, 2000, March 23, 2001, December 31, 2001 and March 18, 2002. B. Borrower and Lender now wish to amend the Agreement to revise the provisions relating to the Tangible Net Worth. ACCORDINGLY THE PARTIES AGREE AS FOLLOWS: 1. Definitions; References; Interpretation. (a) Unless otherwise specifically defined herein, each term used herein (including the Recitals hereof) which is defined in the Agreement shall have the meaning assigned to such term in the Agreement. (b) Each reference to "this Amendment", "hereof", "hereunder", "herein" and "hereby" and each other similar reference contained in the Agreement and each reference to "the Agreement" or "the Term Loan Agreement" and each other similar reference in the other Loan Documents, shall from and after the date of this Amendment refer to the Agreement as amended hereby. (c) The rules of interpretation set forth in Section 1(b) of the Agreement shall be applicable to this Amendment. 2. Amendment to Term Loan Agreement. Subject to the terms and conditions hereof, Section 12(i)(1) of the Agreement is amended and restated to read as follows: "(1) Minimum Tangible Net Worth. Borrower shall not permit its Consolidated Tangible Net Worth, as of the last day of the Fiscal Quarter ending June 30, 2003 to be less than the sum of Fifty Five Million Eight Hundred Thousand Dollars ($55,800,000.00) and for each Fiscal Quarter thereafter, commencing with the Fiscal Quarter ending September 30, 2003, to be less than the sum of (i) Fifty Six Million Dollars ($56,000,000.00), plus (ii) fifty percent (50%) of the aggregate amount of Borrower's Consolidated Net Income, to the extent positive, for Fiscal Year 2003 and each Fiscal Year thereafter (on a cumulative basis). In the event of the Borrower's sale of its interest in the KCA Partnership, or the KCA Partnership's sale of the Queen Kaahumanu Center, the Borrower's Minimum Tangible Net Worth shall be adjusted upward by the amount of the net after tax gain such that the sale will have no impact on the difference between the then current Consolidated Tangible Net Worth requirement and the increase in actual Consolidated Tangible Net Worth resulting from such sale." 3. Conditions of Effectiveness. The effectiveness of this Amendment shall be subject to the satisfaction of each of the following conditions precedent: (a) Lender shall have received from Borrower a duly executed original of this Amendment. (b) Borrower shall have paid to Lender an amendment fee in the sum of $6,000.00. 4. Borrower's Representations and Warranties. Borrower represents and warrants that as of the date hereof and after giving effect hereto: (a) The execution and delivery of this Amendment by the Borrower is within the corporate powers of the Borrower and does not violate any provisions or terms of any order or any court or governmental agency and will not conflict with or constitute a default under the Borrower's Articles or Bylaws or any agreement or instrument to which the Borrower is a party. (b) The execution and delivery of this Amendment has been duly authorized by proper corporate action on the part of the Borrower and that this Amendment and the Agreement constitute the legal, valid and binding obligations of the Borrower. (c) No default or Event of Default exists under the Agreement. (d) It has disclosed the terms and conditions of this Amendment to its auditors for their use in preparing any quarterly or annual reports on the condition of the Borrower. 5. Continuing Validity. Except as expressly modified or changed by this Amendment, the terms of the original Agreement and all other related loan documents remain unchanged and in full force and effect. Consent by the Lender to the changes described herein does not waive Lender's right to strict performance of the terms and conditions contained in the Agreement as amended. Nothing in this Amendment will constitute a satisfaction of the Indebtedness. It is the Lender's intention to retain as liable parties all makers, guarantors, endorsers of the original Indebtedness, unless such party is expressly released by Lender in writing. 6. Miscellaneous. (a) The Borrower acknowledges and agrees that the execution and delivery by the Lender of this Amendment shall not be deemed to create a course of dealing or an obligation to execute similar amendments or waivers under the same or similar circumstances in the future. (b) This Amendment shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns. (c) This Amendment shall be governed by and construed in accordance with the laws of the State of California, provided that the Lender shall retain all rights arising under federal law. (d) This Amendment may be executed in counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Each of the parties hereto understands and agrees that this document may be delivered by any party thereto either in the form of an executed original or an executed original sent by facsimile transmission to be followed promptly by mailing of a hard copy original, and that receipt by the Lender of a facsimile transmitted document purportedly bearing the signature of the Borrower shall bind the Borrower with the same force and effect as the delivery of a hard copy original. Any failure of the Lender to receive the hard copy executed original of such document shall not diminish the binding effect of receipt of the facsimile transmitted executed original of such document of the party whose hard copy page was not received by the Lender. (e) This Amendment contains the entire agreement of the parties hereto with reference to the matters discussed herein. (f) If any term or provision of this Amendment shall be deemed prohibited or invalid under any applicable law, such provision shall be invalidated without affecting the remaining provisions of this Amendment or the Loan Documents. IN WITNESS WHEREOF the parties have signed this Amendment as of the date first above written. Borrower: MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii corporation By: /S/ PAUL J. MEYER Title: Executive Vice President/Finance By: /S/ DON YOUNG Title: Acting President Lender: AMERICAN AGCREDIT, FLCA By: /S/ GARY VAN SCHUYVER Title: Vice President