Maui Land & Pineapple Co Inc 10-K for FY2025
Maui Land & Pineapple Co Inc (MLP)
About this 10-K
Maui Land & Pineapple Co Inc filed this 10-K on April 1, 2026, covering the fiscal year ended December 31, 2025 (FY2025).
Headline figures
Fiscal year ended December 31, 2025, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $19.46M
- up 68.2% from $11.57M a year earlier
- Net loss
- $10.58M
- compared with a net loss of $7.39M a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
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MAUI LAND & PINEAPPLE COMPANY, INC. (Exact name of registrant as specified in its charter) |
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Securities registered pursuant to Section 12(b) of the Act:
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Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐
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 ☐
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.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ | Accelerated filer ☐ Smaller reporting company Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements.
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the registrant is a shell Company (as defined in Rule 12b-2 of the Exchange Act). Yes
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| DOCUMENTS INCORPORATED BY REFERENCE Portions of registrant’s definitive Proxy Statement on Schedule 14A relating to the registrant’s 2026 Annual Meeting of Stockholders, to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the end of the fiscal year covered by this Form 10-K, are incorporated by reference in Part III, Items 10-14 of this Form 10-K. | |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K for the year ended December 31, 2025 (this “Annual Report”), filed by Maui Land & Pineapple Company, Inc. with the Securities and Exchange Commission (“SEC”), contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which statements are subject to considerable risks and uncertainties. Forward-looking statements include all statements that are not statements of historical fact contained in this Annual Report and can be identified by words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “project,” “pursue,” “will,” or “would,” or the negative or other variations thereof or comparable terminology. In particular, forward-looking statements contained in this Annual Report relate to, among other things, our future events, future financial performance, results of operations, strategic plans and objectives, and recent accounting pronouncements. We caution you that the foregoing list may not include all of the forward-looking statements made in this Annual Report. All of our forward-looking statements include assumptions underlying or relating to such statements that may cause actual results to differ materially from those that we are currently expecting, and are subject to considerable risks and uncertainties impacted by various factors, including the following, without limitation:
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the occurrence of natural disasters such as wildfires (including the Maui wildfires that occurred on August 8, 2023), floods, changes in weather conditions, or threats of the spread of contagious diseases, such as pandemics; |
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concentration of credit risk on deposits held at banks in excess of the Federal Deposit Insurance Corporation (the “FDIC”) insured limits and in receivables due from our commercial leasing portfolio; |
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unstable macroeconomic market conditions, including, but not limited to, energy costs, credit markets, interest rates, inflationary pressures, and changes in income and asset values; |
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risks associated with real estate investments, including fluctuations in demand for real estate and tourism in Hawai‘i and Maui; |
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security incidents through cyberattacks or intrusions on our information systems; |
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our ability to complete land development projects within forecasted time and budget expectations, including risks related to construction delays, labor shortages, and obtaining the necessary permits and approvals; |
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our ability to obtain required land use entitlements at reasonable costs; |
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our ability to compete with other developers of real estate on Maui; |
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risks associated with joint ventures |
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potential liabilities and obligations under various federal, state, and local environmental regulations; |
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our ability to cover catastrophic losses in excess of insurance coverages; |
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unauthorized use of our trademarks could negatively impact our business; |
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our ability to establish and maintain effective internal controls over financial reporting; |
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our ability to comply with funding requirements of our retirement plans; |
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our ability to comply with the terms of our indebtedness, including financial covenants, and to extend maturity dates, or refinance such indebtedness, prior to its maturity date; |
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availability of capital on terms favorable to us, and our ability to raise capital through the sale of certain real estate assets, sale of equity, or at all; |
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risks related to our common stock, including stock price volatility, low trading volume and affiliate ownership; and |
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changes in U.S. Accounting Standards adversely impacting us. |
The forward-looking statements contained in this Annual Report are based on management’s current plans, estimates and expectations in light of information currently available to us, and they are subject to uncertainty and changes in circumstances. Actual results may differ materially from our expectations due to changes in global, regional or local political, economic, business, competitive, market, regulatory and other factors, many of which are beyond our control, as well as the other factors described in the section entitled “Risk Factors” within this Annual Report, our quarterly reports on Form 10-Q, and in the other reports we file with the SEC.
Although we believe that our opinions and expectations reflected in the forward-looking statements are reasonable as of the date of this Annual Report, we cannot guarantee future results, levels of activity, performance or achievements, and our actual results may differ substantially from the views and expectations set forth in this Annual Report. Thus, you should not place undue reliance on any forward-looking statements. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. Further, any forward-looking statements speak only as of the date made and, except as required by law, we undertake no obligation to publicly revise our forward-looking statements to reflect events or circumstances that arise after the date of this Annual Report.
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Management’s Discussion and Analysis of Financial Condition and Results of Operations |
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Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
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Disclosure Regarding Foreign Jurisdictions that Prevent Inspections |
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Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
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Certain Relationships and Related Transactions, and Director Independence |
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| BUSINESS |
Overview
Maui Land & Pineapple Company, Inc. is a Delaware corporation and the successor to a business organized in 1909 as a Hawai‘i corporation. The Company reincorporated from Hawai‘i to Delaware pursuant to a plan of conversion completed on July 18, 2022. Total authorized capital stock of the Company includes 48,000,000 shares, consisting of 43,000,000 shares of common stock, par value $0.0001 per share, and 5,000,000 shares of preferred stock, par value $0.0001 per share. Shares of the Company’s common stock are listed on the New York Stock Exchange (“NYSE”) under the ticker symbol “MLP.”
Depending upon the context, the terms “Company,” “we,” “our,” and “us,” refer to either Maui Land & Pineapple Company, Inc. alone, or to Maui Land & Pineapple Company, Inc. and its subsidiaries collectively. The Company consists of a landholding and operating parent company, has a principal subsidiary, Kapalua Land Company, Ltd., and certain other subsidiaries.
We own approximately 22,300 acres of land and 247,000 square feet of commercial property on the island of Maui, Hawai‘i which we put into productive use by planning, managing, developing, and selling residential, resort, commercial, agricultural, and industrial real estate through three business segments:
| Land Development and Sales: |
Our land development and sales operations consist of land planning and entitlement, development, development related construction, and sales activities. |
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| Leasing: |
Our leasing operations include commercial, agricultural, and industrial land and property leases, licensing of our registered trademarks and trade names, management of potable and non-potable water systems in West and Upcountry Maui, and stewardship of conservation areas. |
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| Resort Amenities: |
Our resort amenities operations include the operations of the Kapalua Club, a private, non-equity club, providing its members special programs, access, and other privileges at certain amenities in the Kapalua Resort. |
For additional information and operating results related to the above business segments refer to the section entitled “Business Segments” in this Item 1 and in Note 13 to our financial statements set forth in Item 8 of this Annual Report.
Business Segments
Land Development and Sales
Our Land Development and Sales segment includes all land planning, entitlement, development, and sales activities of our landholdings on Maui. Our principal real estate development is the Kapalua Resort, a master-planned, destination resort and residential community located in West Maui. The following is a summary of our landholdings in approximate number of acres as of December 31, 2025:
| West Maui |
Upcountry Maui |
Total |
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| Commercial/Industrial |
19 | - | 19 | |||||||||
| Residential/Resort/Mixed-use |
866 | - | 866 | |||||||||
| Agricultural |
8,871 | 1,485 | 10,356 | |||||||||
| Conservation/watershed |
11,045 | - | 11,045 | |||||||||
| Total |
20,801 | 1,485 | 22,286 | |||||||||
Revenues from our Land Development and Sales segment totaled approximately $5,811,000, or 30% of our total operating revenues for the year ended December 31, 2025.
Real Estate Planning and Entitlements – In certain cases we must obtain appropriate entitlements and approvals for the land we intend to develop. Securing proper land entitlements is a process that may require county, state, and federal approvals, which can take years to complete and entails a variety of risks. The entitlement process requires that we satisfy certain conditions and restrictions in connection with such governmental approvals, including, among other things, infrastructure improvements and impact fees in the form of dedicated land for schools and public parks, provide traffic mitigation measures, restrictions on permitted uses of the land, and provisions of affordable housing. We actively work with the community, regulatory agencies, and legislative bodies at all levels of government to obtain and manage necessary approvals consistent with the needs of the community.
In 2024, our primary activities in this segment focused on the marketing and sale of non-strategic parcels and initiating the development of active projects. In addition to strategic planning of our entire asset portfolio, we have approximately 7,954 acres of land on Maui that are in various stages of active planning and development process. The following is a summary of our active land development projects as of December 31, 2025:
| Approximate |
Approximate Project |
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| Location/Project |
Number of Acres |
Zoned for Planned Use |
Start/End Dates |
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| West Maui - Kapalua Resort - Makai |
36 |
Yes |
2024-2034 |
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| West Maui - Kapalua Resort - Central |
46 |
Yes |
2024-2031 |
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| West Maui - Kapalua Resort - Mauka |
922 |
Yes |
2024-2034 |
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| West Maui - State Temporary Housing |
50 |
Yes |
2024-2026 |
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| Upcountry Maui - Hali'imaile Ranch |
325 |
Yes |
2024-2031 |
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| West Maui - Honokeana Farms |
1,480 |
Yes |
2024-2033 |
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| West Maui - Kapalua Ranch |
914 |
Yes |
2025-2030 |
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| Upcountry Maui - Hali‘imaile Farms |
757 |
Yes |
2025-2041 |
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| West Maui - Kahana Farms |
2,840 |
Yes |
2025-2036 |
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| Upcountry Maui - Hali‘imaile Farm Land |
348 |
Yes |
2025-2035 |
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| Total |
7,718 |
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We are engaged in planning, permitting and entitlement activities of real estate development projects, and we intend to proceed with construction and sales of the following projects, among others, when internal and external factors permit:
West Maui - Kapalua Resort: We began development of the Kapalua Resort in the early 1970s. Today, the Kapalua Resort is an internationally recognized world-class destination resort, beach, golf and residential community. We presently have entitlements to develop a variety of projects in the Kapalua Resort. Three projects that are currently in various stages of planning include Kapalua Central Resort, Kapalua Mauka, and Kapalua Makai.
Kapalua Makai is a 36-acre project of the Kapalua Resort which is located adjacent to Honokahua Bay, also known as DT Fleming Beach Park. The land has State and County land use entitlements to deliver up to 573 residences, 349 hotel units, and new commercial and/or resort amenities. As of this filing, planning efforts are in process for this project.
Kapalua Central Resort is a commercial town center and residential community located in the heart of the Kapalua Resort. It is comprised of 46 acres and State and County land use entitlements have been secured for this project. The project is currently planned to include up to 196 residential units and 61,000 square feet of commercial space. In December 2021, we entered into an agreement to sell the Kapalua Central Resort property for $40.0 million. On April 11, 2023, we regained control of the project from the buyer after the purchase agreement terminated due to the buyer failing to extend the applicable construction completion deadline under a Special Management Area (“SMA”) permit. We are currently processing an extension under the SMA permit issued by the County of Maui for the property. We are actively working with our consultants and engaging with the community in preparation for the permit extension, which is anticipated to occur in 2026.
Kapalua Mauka was master planned and entitled in 2008 as a luxury single-family residential neighborhood within Kapalua Resort. The property is located directly upslope of the existing resort development. The first phase of Kapalua Mauka, consisting of 51 residential lots, was subdivided, sold to a developer, and has since been completed. The remaining project area encompasses approximately 922 acres of land and has State and County land use entitlements to deliver up to 639 single-family homes, resort amenities, and an additional golf course or recreational space. As of this filing, planning and pre-development efforts are underway for the project.
Upcountry Maui - Hali'imaile Town: Hali‘imaile is an existing town located in Upcountry Maui, adjacent to historic Makawao Town. We own approximately 1,485 acres in Hali‘imaile zoned for agriculture, light industrial, and business. The majority of this land is in a federal Tax Cuts and Jobs Act (“TCJA”) Opportunity Zone. Our landholdings include 290 acres classified for growth potential as “Small Town” in the long-range County of Maui Island Plan. As of this filing, we are underway with development activities including planning, design, and subdivision for all land in Hali‘imaile.
In December 2023, we entered into a joint venture, BRE2 LLC (“BRE2”), with Stone Properties, a Maui based developer. The joint venture developed approximately 31 acres in Hali‘imaile Town into two ranch lots. BRE2 sold one ranch lot during the year ended December 31, 2024. The second ranch lot sold and closed in February 2025.
As we develop these and other strategic projects, we expect to finance pre-development costs with operating revenues, proceeds from non-strategic land sales, debt financing, capital from joint venture partners, other sources, or a combination of these methods.
The price and market for resort and other real estate in Maui is generally cyclical and influenced by various factors, including but not limited to (i) interest rates, (ii) other real estate markets in the mainland United States, specifically the west coast, where Hawai‘i is a popular location for vacations and the second-home market, (iii) the general condition of the economy in the United States and Asia, (iv) the relationship of the dollar to foreign currencies, (v) natural disasters, including wildfires and floods, (vi) environmental regulations, and (vii) tourism trends. Our Land Development and Sales segment faces competition from other landowners and developers in Maui, as well as in other parts of Hawai‘i and the mainland United States. Our land holdings in West Maui have historically been highly desired due to their proximity to both beaches and mountains as well as amenities, along with a natural grade which provides a majority of the land with unobstructed ocean views.
Leasing
Our Leasing segment includes commercial, industrial, and agricultural leases of land and property, licensing of our registered trademarks and trade names, sales of potable and non-potable water in West and Upcountry Maui, and grants related to watershed stewardship and conservation efforts.
Revenues from our Leasing segment totaled $12.8 million, or approximately 66% of our total operating revenues for the year ended December 31, 2025.
Commercial and Industrial Leases – We are the owner and lessor of 247,328 square feet of commercial, retail and light industrial properties, including restaurants, retail outlets, office buildings, warehouses and Kapalua Resort activities. The following summarizes information related to our commercial, retail and industrial leases as of December 31, 2025:
| Total |
Average |
Lease |
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| Square |
Occupancy |
Expiration |
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| Footage |
Percentage |
Dates |
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| Kapalua Resort |
72,169 | 85% | 2026-2038 | |||||||||
| Other West Maui |
40,050 | 98% | 2025-2034 | |||||||||
| Upcountry Maui |
135,109 | 82% | 2026-2034 | |||||||||
Agricultural Leases – We own, market, and lease approximately 10,300 acres of diversified agriculture, ranching, renewable energy, eco tours, and activities in West and Upcountry Maui.
Trademark and Trade Name Licensing – Our primary trademarks and trade names include Kapalua, the Kapalua butterfly logo and the Maui Gold name and associated pineapple logo. We currently have licensing agreements for the use of these trademarks and trade names with several different companies, mainly in conjunction with our agricultural, commercial and industrial leases.
Potable and Non-Potable Water Systems – We own and operate several potable water wells, non-potable irrigation water ditches, reservoirs and transmission systems serving the Kapalua Resort, the County of Maui, and agricultural users in West and Upcountry Maui.
Stewardship and Conservation – We own and manage the conservation of a 9,000-acre nature and watershed preserve in West Maui known as the Pu‘u Kukui Watershed Preserve. A portion of our stewardship and conservation efforts is subsidized by the State of Hawai‘i.
Our Leasing segment is highly sensitive to economic conditions, including tourism and consumer spending levels, and faces substantial competition from other property owners in both Maui and Hawai‘i as a whole. The amount of rainfall and the level of development in the Kapalua Resort area also affect the demand and associated availability for our potable and non-potable water.
Resort Amenities
Our Resort Amenities segment includes the operations of the Kapalua Club, a private, non-equity club providing its members special programs, access and other privileges at certain amenities at the Kapalua Resort, including a 30,000 square foot full-service spa and fitness center, a private pool-side dining beach club, and two 18-hole championship golf courses.
Revenues from our Resort Amenities segment totaled $0.8 million, or approximately 4% of our total operating revenues for the year ended December 31, 2025.
The Kapalua Club is principally dependent on the overall appeal and success of the Kapalua Resort. The resort faces competition from other resort destination communities on Maui and other parts of Hawai‘i.
Employees
As of December 31, 2025, we had twenty employees, all of whom were full-time employees. None of our employees are members of a collective bargaining group.
We have adopted a Code of Business Conduct and Ethics, which applies to all of our directors, officers and employees. We also utilize an ethics reporting email and voice system which is monitored by the Audit Committee of the Board of Directors (“the Board”). Our Code of Business Conduct and Ethics is available on our website at www.mauiland.com under the Investor section of the website. We will promptly disclose on our website the nature of any amendment to, or waiver or implicit waiver from, our Code of Business Conduct and Ethics that applies to any principal executive officer, principal financial officer, principal accounting officer or persons performing similar functions.
Available Information
Our internet address is www.mauiland.com. Reference in this Annual Report to this website address does not constitute incorporation by reference of the information contained on the websites. We make available free of charge on or through our website our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and other reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. These filings are also available on the SEC’s website at www.sec.gov.
| RISK FACTORS |
Our short and long-term success is subject to numerous risks and uncertainties, many of which involve factors that are difficult to predict or beyond our control. As a result, investing in our common stock involves substantial risk. Our stockholders should carefully consider the risks and uncertainties described below, in addition to the other information contained in or incorporated by reference into this Annual Report, as well as the other information we file with the SEC from time to time. If any of these risks are realized, our business, financial condition, results of operations, liquidity and prospects could be materially and adversely affected. In that case, the value of our common stock could decline, and stockholders may lose all or part of their investment. Furthermore, additional risks and uncertainties of which we are currently unaware, or which we currently consider to be immaterial, could have a material adverse effect on our business. Certain statements made in this section constitute “forward-looking statements,” which are subject to numerous risks and uncertainties including those described in this section. For additional information, refer to the section entitled “Cautionary Note Regarding Forward-Looking Statements” within this Annual Report.
Risks Related to our Business
Unstable macroeconomic market conditions could materially and adversely affect our operating results.
Our operations and performance depend on worldwide economic conditions. Uncertainty about global economic conditions poses a risk to our business as consumers, tourists and real estate investors postpone or reduce spending in response to tighter credit markets, energy costs, negative financial news, reduced consumer confidence, and/or declines in income or asset values, which could have a material negative effect on the demand for our products and services. Other factors that could influence demand include increases in fuel costs, conditions in the residential real estate and mortgage markets, interest rates, labor costs, access to credit on reasonable terms, geopolitical issues, and other macroeconomic factors affecting consumer spending behavior. These and other economic factors could have a material adverse effect on demand for our products and services and on our financial condition and operating results.
In addition, should current equity or credit market conditions deteriorate, or if our expenses increase unexpectedly, it may become necessary for us to raise additional capital in the form of a debt or equity financing, or a combination of the two. A downturn in industry, market or economic conditions could make debt or equity financing more difficult, more costly, and, in the case of an equity financing, more dilutive to our existing stockholders. Failure to secure any necessary financing in a timely manner and on favorable terms could have a material adverse effect on our ability to execute our current business strategy, as well as our financial performance and stock price.
Real estate investments are subject to numerous risks and we are negatively impacted by downturns in the real estate market.
We are subject to risks that generally relate to investments in real property because we develop, sell, and lease real property, primarily for residential use. The market for real estate on Maui and in Hawai‘i generally tends to be highly cyclical and is typically affected by numerous changes in local, national, and worldwide conditions, especially economic conditions, many of which are beyond our control, including the following:
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periods of economic uncertainty and weakness in Hawai‘i and in the United States generally; |
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uncertainties and changes in U.S. social, political, regulatory, and economic conditions or laws and policies, and concerns surrounding ongoing developments in the European Union, the Middle East and Asia; |
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high unemployment rates and low consumer confidence; |
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the general availability of mortgage financing, including the effect of more stringent lending standards for mortgages and perceived or actual changes in interest rates; |
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energy costs, including fuel costs, which could impact the cost and desirability of traveling to Hawai‘i; |
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local, state, and federal government regulation, including eminent domain laws, which may result in a taking for less compensation than what we believe our property is worth; |
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the popularity of the Kapalua Resort area, the island of Maui, and the State of Hawai‘i as a vacation destination or second home market; |
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the relationship of the dollar to foreign currencies; |
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tax law changes, including limits or potential elimination of the deductibility of certain mortgage interest expenses, real property taxes and employee relocation expenses; and/or |
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acts of God, such as wildfires as recently experienced on Maui, tsunamis, hurricanes, earthquakes, and other natural disasters, including the impacts of pandemic. |
Changes in any of the foregoing could have a material adverse effect on our business by causing a more significant decline in the market for residential or luxury real estate, which, in turn, could adversely affect our development plans, revenues and profitability. During low periods of demand, real estate may remain on hand for much longer than expected or be sold at lower-than-expected returns, or even at a loss, which could impair our liquidity and ability to proceed with development projects and negatively affect our operating results. Sustained adverse changes to our development plans could result in impairment charges or write-offs of deferred development costs, which could have a material adverse impact on our financial condition and results of operations. In addition, in the current economic environment, equity real estate investments may be difficult to sell quickly, and we may not be able to adjust our portfolio of properties quickly in response to economic or other conditions.
Because we are located in Hawai‘i and therefore apart from the mainland United States, our financial results are more sensitive to certain economic factors, such as spending on tourism and increased fuel and travel costs, which may adversely impact and materially affect our business, financial condition and results of operations.
Our businesses are dependent on attracting visitors to the Kapalua Resort, to the island of Maui, and to the State of Hawai‘i as a whole. Economic factors that affect the number of visitors, their length of stay or expenditure levels will affect our financial performance. Factors such as worldwide economic uncertainty and weakness, the level of unemployment in Hawai‘i and the mainland United States, natural disasters, substantial increases in the cost of energy, including fuel costs, and events in the airline industry that may reduce passenger capacity or increase traveling costs could reduce the number of visitors to the Kapalua Resort and negatively affect a potential buyer’s demand for our future property developments, each of which could have a material adverse impact on our business, financial condition and results of operations. In addition, the threat, or perceived threat, of heightened terrorist activity in the United States or other geopolitical events, or the threat, or perceived threat, of the spread of contagious diseases, including the impacts of pandemics, could negatively affect a potential visitor’s choice of vacation destination or second home location or result in travel bans that could, as a result, have a material adverse impact on our business, financial condition and results of operations.
We have previously been involved in joint ventures and may be subject to risks associated with future joint venture relationships.
We have previously been involved in partnerships, joint ventures and other joint business relationships, and may initiate future joint venture projects. A joint venture involves certain risks such as:
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our actual or potential lack of voting control over the joint venture; |
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our ability to maintain good relationships with our joint venture partners; |
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a venture partner at any time may have economic or business interests that are inconsistent with ours, especially in light of economic uncertainty and weakness; |
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a venture partner may fail to fund its share of operations and development activities, or to fulfill its other commitments, including providing accurate and timely accounting and financial information to us; and |
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a joint venture or venture partner could lose key personnel. |
In connection with our joint venture projects, we may be asked to guarantee the joint venture’s obligations, or to indemnify third parties in connection with a joint venture’s contractual arrangements. If we were to become obligated under such arrangements or become subject to the risks associated with joint venture relationships, our business, financial condition and results of operations may be adversely affected.
If we are unable to complete land development projects within forecasted time and budget expectations, if at all, our financial results may be negatively affected.
We intend to develop subdivisions, resort and other properties as suitable opportunities arise, taking into consideration the general economic climate. New project developments have a number of risks, including risks associated with:
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construction delays or cost overruns that may increase project costs; |
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receipt of zoning, subdivision, water availability, occupancy and other required governmental permits and authorizations; |
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development costs incurred for projects that are not pursued to completion; |
| • |
earthquakes, tsunamis, hurricanes, floods, fires or other natural disasters that could adversely impact a project; |
| • |
defects in design or construction that may result in additional costs to remedy or require all or a portion of a property to be closed during the period required to rectify the situation; |
| • |
ability to raise capital; |
| • |
impact of governmental fines and assessments such as park fees or affordable housing requirements; |
| • |
governmental restrictions on the nature or size of a project or timing of completion; and |
| • |
the potential lack of adequate building/construction capacity for large development projects. |
If any development project is not completed on time or within budget, this could have a material adverse effect on our financial results.
If we are unable to obtain required land use approvals at reasonable costs, or at all, our operating results would be adversely affected.
The financial performance of our Land Development and Sales segment is dependent upon our success in obtaining discretionary and ministerial approvals for proposed development projects. Obtaining all the necessary approvals to develop a parcel of land is often difficult, costly and may take several years, or longer, to complete. In some situations, we may be unable to obtain the necessary approvals to proceed with a real estate development or may be required to alter our plans for the development. Delays or failures to obtain these approvals may have a material adverse effect on our financial results.
If we are unable to successfully compete with other developers of real estate in Maui, our financial results could be materially adversely affected.
Our real estate products face significant competition from other luxury resort real estate properties on Maui, and from other residential property in Hawai‘i and the mainland United States. In many cases, our competitors are larger than us and have greater access to capital. If we are unable to compete with these competitors, our financial results could be materially adversely affected.
We may be subject to certain environmental regulations under which we may have additional liability and experience additional costs for land development.
Various federal, state, and local environmental laws, ordinances and regulations regulate our properties and could make us liable for the costs of removing or cleaning up hazardous or toxic substances on, under, or in property we currently own or operate or that we previously owned or operated. These laws could impose liability without regard to whether we knew of, or were responsible for, the presence of hazardous or toxic substances. The presence of hazardous or toxic substances, or the failure to properly clean up such substances when present, could jeopardize our ability to develop, use, sell or rent our real property or to borrow using our real property as collateral. If we arrange for the disposal or treatment of hazardous or toxic wastes, we could be liable for the costs of removing or cleaning up wastes at the disposal or treatment facility, even if we never owned or operated that facility. Certain laws, ordinances, and regulations, particularly those governing the management or preservation of wetlands, coastal zones and threatened or endangered species, could limit our ability to develop, use, sell or rent our real property.
Changes in weather conditions or natural disasters could adversely impact and materially affect our business, financial condition, and results of operations.
Natural disasters, including wildfires, tsunamis, hurricanes, earthquakes and others, could damage our resort and real estate holdings, resulting in substantial repair or replacement costs to the extent not covered by insurance, a reduction in property values, or a loss of revenue, each of which could have a material adverse impact on our business, financial condition and results of operations. Our competitors may be affected differently by such changes in weather conditions or natural disasters depending on the location of their assets or operations. The wildfires in August 2023 devasted the town of Lahaina, Maui and negatively impacted tourism to the area and the local economy. We expect the aftermath of the wildfires to continue to impact commercial activity throughout the island of Maui, and there is uncertainty as to how long it will take Maui to rebuild, return tourism to historic levels, and recover economically. Until such time as commercial activity and tourism return to normal levels, the impact of the wildfires continues to negatively impact operations as it did through 2025.
Our insurance coverages may be inadequate to cover any losses we incur.
We maintain various insurance coverages for our business. We have engaged experts to assist us in the determination of our insurance policy terms, including coverage limits and deductibles, based on an evaluation of the level of potential risk, exposure and costs involved. This may result in insurance coverage that may not be sufficient to cover the full value of our losses in certain catastrophic or unforeseen circumstances. In addition, securing coverage in the event we file a claim under our insurance policies may involve substantial time, effort, resources, and the risk that the insurance carrier may deny or dispute coverage under the policy. Under such circumstances, we may not receive insurance proceeds or the insurance proceeds we receive may not fully cover business interruptions or losses and our operating results, liquidity and financial condition could be adversely affected.
Unauthorized use of our trademarks could negatively impact our businesses.
We have several trademarks that we have been registered in the United States and in several foreign countries. To the extent that our exclusive use of these trademarks is challenged, we intend to vigorously defend our rights. If we are not successful in defending our rights, our businesses could be adversely impacted.
Market volatility of asset values and interest rates affect the funded status of our defined benefit pension plans and could, under certain circumstances, have a material adverse effect on our financial condition.
We have a defined benefit pension plan which was frozen with respect to benefits and the addition of participants in 2011. The Board approved the termination of the Defined Plan and the Non-qualified Plan in 2023. The funded status and our ability to satisfy the future obligations of the plans are affected by, among other things, changes in interest rates, returns from plan asset investments, and actuarial assumptions including the life expectancies of the plan’s participants. If we are unable to adequately fund or meet our future obligations with respect to the plan, our business, financial condition and results of operations may be adversely affected.
Changes in U.S. Accounting Standards may adversely impact us.
The regulatory boards and government agencies that determine financial accounting standards and disclosures in the U.S., including the Financial Accounting Standards Board (“FASB”) and the International Accounting Standards Board (“IASB”) (collectively, the “Boards”) and the SEC, continually change and update the financial accounting standards we must follow.
Any difficulties in the implementation of changes in accounting principles, including the ability to modify our accounting systems and to update our policies, procedures, information systems, and internal controls over financial reporting, could result in materially inaccurate financial statements, which in turn could harm our operating results or cause us to fail to meet our reporting obligations. The adoption of new accounting standards could also affect the calculation of our credit facility covenants. We cannot be assured that we will be able to work with our lenders to amend our credit facility covenants in response to changes in accounting standards.
Security incidents through cyber-attacks, cyber intrusions, or other methods could disrupt our information technology networks and related systems, cause a loss of assets or loss of data, give rise to remediation or other expenses, expose us to liability under federal and state laws, and subject us to litigation and investigations, which could result in substantial reputational damage and materially and adversely affect our business, financial condition, results of operations, cash flows, and the market price of our common stock.
Information technology, communication networks, and related systems are essential to the operation of our business. We use these systems to manage our tenant, vendor and customer relationships, internal communications, accounting and record-keeping systems, and many other key aspects of our business. Our operations rely on the secure processing, storage, and transmission of confidential and other information in our computer systems and networks, which also depend on the strength of our procedures and the effectiveness of our internal controls.
A security incident may occur through physical break-ins, breaches of our secure network by an unauthorized party, software vulnerabilities, malware, computer viruses, attachments to emails, employee theft or misuse, social engineering, or inadequate use of security controls. Outside parties may attempt to fraudulently induce our employees to disclose sensitive information or transfer funds via illegal electronic spamming, phishing, spoofing or other tactics. Additionally, cyber attackers can develop and deploy malware, credential theft or guessing tools, and other malicious software programs to gain access to sensitive data or fraudulently obtain assets we hold.
We have implemented security measures to safeguard our systems and data and to manage cyber security risk. We monitor and develop our information technology networks and infrastructure and invest in the development and enhancement of our controls designed to prevent, detect, address, and mitigate the risk of unauthorized access, misuse, computer viruses, and other events that could have a security impact. We conduct periodic security awareness trainings for our employees to educate them on how to identify and alert management regarding phishing emails, spoofed or manipulated electronic communications, and other critical security threats. We have implemented internal controls around our treasury function including enhanced payment authorization procedures, verification requirements for new vendor set-up and vendor information changes and bolstered outgoing payment notification processes and account reconciliation procedures.
While, to date, we are not aware of having experienced a significant security incident or cyber-attack, there can be no assurance that our actions, security measures, and controls designed to prevent, detect, or respond to intrusion; to limit access to data; to prevent loss, destruction, alteration, or exfiltration of business information; or to limit the negative impact from such attacks can provide absolute security against a security incident.
A principal reason that we cannot provide absolute protection from security incidents is that it may not always be possible to anticipate, detect, or recognize threats to our systems, or to implement effective preventive measures against all security incidents due to, among other things, the frequent change in techniques used in cyber-attacks, which may not be recognized until launched, and the wide variety of sources from which a cyber-attack can originate. We may not be able to immediately address the consequences of a security incident due to a cyber-attack.
The extent of a particular cyber-attack and the steps that we may need to take to investigate the attack may not be immediately clear. Therefore, in the event of an attack, it may take a significant amount of time before such an investigation can be completed. During an investigation, we may not necessarily know the extent of the damage incurred or how best to remediate it, and certain errors or actions could be repeated or compounded before they are discovered and remediated, which could further increase the costs and consequences of a cyber-attack.
Even if we are not targeted directly, cyber-attacks on the U.S. government, financial markets, financial institutions, or other businesses, including our tenants, vendors, software creators, cloud providers, and other third parties with whom we do business, could disrupt our normal business operations and networks.
We maintain insurance to protect ourselves against certain losses incurred in the event of a security incident or disruption of our information systems. However, we cannot be certain that the coverage will be adequate to compensate us for all damages that may arise. In addition, we cannot be certain that such insurance coverages will remain available to us in the future on commercially reasonable terms, or at all.
Risks Related to Indebtedness
We have entered into a credit agreement for a $25.0 million revolving line of credit facility with a bank. The credit facility has a maturity date of December 31, 2030 and its terms include certain financial and operating covenants, which if we fail to satisfy, could accelerate our repayment obligations, and adversely affect our operations and financial results.
The terms of our credit facility include covenants requiring among other things, a minimum of $2.0 million in liquidity (as defined), a maximum of $45.0 million in total liabilities and a limitation on new indebtedness. Our ability to continue to borrow under our credit facility to fund our business initiatives depends upon our ability to comply with these covenants.
Our business initiatives for the next twelve months include investing in our operating infrastructure and continued planning and pre-development efforts on our land development and sales projects. At times, this may require borrowing under our credit facility or other indebtedness, repayment of which may be dependent on selling of our real estate assets at acceptable prices in condensed timeframes.
Our indebtedness could have the effect of, among other things, increasing our exposure to general adverse economic and industry conditions, limiting our flexibility in planning for, or reacting to, changes in our business and industry, and limiting our ability to borrow additional funds.
Risks Relating to our Stock
Our stock price has been subject to significant volatility.
During the year ended December 31, 2025, the low and high share prices of our common stock ranged from $13.84 to $22.23. Our stock price has been, and may continue to be, subject to significant volatility. Among others, including the risks and uncertainties discussed in this Annual Report, the following factors, some of which are out of our control, may cause the market price of our common stock to continue to be volatile:
| • |
our quarterly or annual earnings or those of other companies in our industry; |
| • |
actual or unanticipated fluctuations in our operating results; |
| • |
the relatively low volume of trading in our stock; and |
| • |
the lack of significant securities analysts’ coverage of our stock. |
Fluctuations in the price of our common stock may also be exacerbated by economic and other conditions in Maui in particular, or conditions in the financial markets generally.
Share ownership by our affiliates make it more difficult for third parties to acquire us or effectuate a change of control that might be viewed favorably by other stockholders.
Affiliates of our company owned, in the aggregate, a majority of our outstanding shares at December 31, 2025. As a result, if these affiliates were to oppose a third party’s acquisition proposal for, or a change in control of, the Company, these affiliates may have sufficient voting power to be able to block or at least delay such an acquisition or change in control from taking place, even if other stockholders would support such a sale or change of control. In addition, Steve Case, a member of our board of directors, has pledged an aggregate of 8,993,750 shares as collateral security for certain obligations to Bank of Hawaii and First Hawaiian Bank. Any foreclosure or forced sale of these pledged shares could alter the composition of our stockholder base in a manner that increases the difficulties to obtain the requisite support for an acquisition or change in control favored by other stockholders.
Trading in our stock over the last twelve months has been limited, so investors may not be able to sell as much stock as they want at prevailing prices.
The average daily trading volume in our common stock for the year ended December 31, 2025 was approximately 21,000 shares. If limited trading in our stock continues, it may be difficult for investors to sell their shares in the public market at any given time at prevailing prices. Moreover, the market price for shares of our common stock may be made more volatile because of the relatively low volume of trading in our common stock. When trading volume is low, significant price movement can be caused by the trading in a relatively small number of shares. Volatility in our common stock could cause stockholders to incur substantial losses.
We do not anticipate declaring any cash dividends on our common stock.
We have not declared or paid regular cash dividends on our common stock. Our current policy is to retain all funds and any earnings for use in the operation and expansion of our business. The payment of cash dividends by us is restricted by our credit facility which contains covenants prohibiting us from paying any cash dividends without the lender’s prior approval. If we do not pay dividends, our stock may be less valuable to you because a return on your investment will only occur if our stock price appreciates.
We may need additional funds which, if available, could result in significant dilution to our stockholders, have superior rights to our common stock and contain covenants that restrict our operations.
If unanticipated contingencies or other unforeseen circumstances arise, it may be necessary for us to raise additional capital either through public or private equity or debt financing. We cannot say with any certainty that we will be able to obtain the additional needed funds on reasonable terms, or at all. If we were to raise capital through the issuance of our common stock or securities convertible or exercisable into our common stock, our existing stockholders may suffer significant dilution. If we issued preferred equity or debt securities, these securities could have rights superior to holders of our common stock and could contain covenants that will restrict our operations. If additional funds are raised through a bank credit facility or the issuance of debt securities, the holder of such indebtedness would have rights senior to the rights of equity holders and the terms of such indebtedness could impose restrictions on our operations.
| UNRESOLVED STAFF COMMENTS |
Not applicable.
| CYBERSECURITY |
Risk management and strategy
Our IT Manager, along with the information security and technical consultants hired by us, help identify, assess, and manage our cybersecurity threats and risks. They work to identify and assess risks from cybersecurity threats by monitoring and evaluating the threat environment using various methods including manual and automated tools, subscribing to reports and services that identify cybersecurity threats, evaluating our and our industry’s risk profile, conducting periodic audits and threat assessments, conducting regular vulnerability assessments, and utilizing external threat intelligence.
Depending on the environment, system, and data, we implement and maintain certain technical and organizational measures, processes, standards and policies designed to manage and mitigate material risks from cybersecurity threats to our Information Systems and Data, including, detection and incident response procedures, vulnerability management process, disaster recovery/business continuity plans, encryption, network security controls, user access controls including multifactor authentication and role-based access, data segregation, asset management, continuous systems monitoring, vendor risk management program, employee training, penetration testing and cybersecurity insurance with coverage limits appropriate to our risk profile.
Our assessment and management of material risks from cybersecurity threats are integrated into our overall risk management processes. We prioritize cybersecurity risks based on their potential impact and likelihood, focusing our resources on mitigating threats that are more likely to lead to a material impact to our business results of operations, or financial condition.
We use -party service providers to assist us from time to time to identify, assess, and manage material risks from cybersecurity threats, including, professional services firms, cybersecurity consultants, managed cybersecurity service providers, penetration testing firms, and forensics investigators as needed.
We also use third-party service providers to perform a variety of functions throughout our business, such as application providers, hosting companies, and various supply chain resources. We have a vendor management program to manage cybersecurity risks associated with our use of these providers which includes, depending on the vendor, nature of the services provided, and sensitivity of the Information Systems and Data at issue: risk based assessments designed to help identify cybersecurity risks associated with the vendor, security questionnaires, review of independent security assessments, and imposition of contractual obligations related to cybersecurity.
Governance
| PROPERTIES |
Most of our land was acquired from 1911 to 1932 and, accordingly, has a relatively low-cost basis. The following is a summary of the approximate acreage of our landholdings as of December 31, 2025:
| Acres |
||||
| West Maui |
20,801 | |||
| Upcountry Maui |
1,485 | |||
| Total |
22,286 | |||
Our West Maui landholdings are comprised of several, largely contiguous parcels that extend from the sea to the top of the second largest mountain on Maui, at an elevation of approximately 5,700 feet. It includes approximately 900 acres of land entitled for commercial, residential, hotel, or other mixed-use development within the Kapalua Resort. Leasing revenue is generated from restaurants, retail outlets, office buildings, warehouses, and other resort activities. The remaining lands consist of former pineapple fields, gulches, undeveloped coastal and forest areas, and our 9,000-acre conservation watershed preserve. These properties generate leasing revenue from agricultural and industrial leases, management of water systems, sales of potable and non-potable water, and stewardship and conservation grants.
Our Upcountry Maui landholdings are situated at elevations between 1,000 and 2,000 feet above sea level on the slopes of Haleakala, a volcanic-formed mountain on the island that rises above 10,000 feet in elevation. These properties generate leasing revenue from commercial, industrial, and agricultural leasing.
We have pledged certain of our real estate properties in the Kapalua Resort as security for borrowings under our credit facility.
We own our corporate offices located in the Kapalua Resort in West Maui and in Upcountry Maui. We believe our facilities are suitable and adequate for our business and have sufficient capacity for the purposes for which they are currently being used or intended to be used. For additional information, refer to the section entitled “Business” in this Annual Report.
| LEGAL PROCEEDINGS |
DOH Order
On December 31, 2018, the State of Hawai‘i Department of Health (“DOH”) issued a Notice and Finding of Violation and Order (“Order”) for alleged wastewater effluent violations related to our Upcountry Maui wastewater treatment facility. The facility was built in the 1960s to serve approximately 200 single-family homes developed for workers in our former agricultural operations. The facility is made up of two 1.5-acre wastewater stabilization ponds and surrounding disposal leach fields. The Order includes, among other requirements, payment of a $230,000 administrative penalty and improvements to the wastewater treatment plant.
The DOH agreed to defer the Order while we implement an approved corrective action plan to address the facility’s wastewater effluent issues. The construction of additional leach fields and installations of a surface aerator, sludge removal system, and natural pond cover using water plants were completed. Test results from wastewater monitoring indicate effluent concentration amounts within allowable ranges. A feasibility study was prepared and submitted identifying various technical solutions that could be implemented to resolve the Order. We submitted a plan and proposed solution to resolve the Order. The plan included the installation of an additional pond that will be lined and installed with aerators. One of the existing ponds will be lined and renovated as necessary and the other pond will be taken offline and used as a backup pond if needed. The Company continues to make progress with the DOH and was, as of the date of this Annual Report, awaiting approval of submitted engineering and design drawings from the State of Hawai‘i.
We have accrued approximately $23,000 related to the administrative penalty as of December 31, 2025. We are currently unable to estimate the remaining amount, or range of amounts, of any probable liability, if any, related to the Order. Accordingly, no additional provision has been made in the accompanying financial statements.
Maui County Water Filtration Settlement
Pursuant to a 1999 settlement agreement with the County of Maui, the Company and several chemical manufacturers have agreed to pay for 90% of capital costs to install filtration systems in any future water wells if the presence of a nematicide, commonly known as DBCP, exceeds specified levels, and for the ongoing maintenance and operating cost for filtration systems on existing and future wells. The Company paid approximately $23,000 for the reimbursement of filtration and maintenance costs during the years ended December 31, 2025 and 2024. At the time of filing this Annual Report, the Company is not aware of any plans by the County of Maui to install other filtration systems or to drill any water wells in areas affected by agricultural chemicals. Accordingly, no reserve for costs relating to any future wells has been recorded because the Company cannot reasonably estimate the possible amount, or range of amounts, if any, of any probable liability.
Honokohau Stream Irrigation Water Dispute
On August 18, 2025, TY Management Corporation, which owns two golf courses, the Plantation Estates Lot Owners Association (“PELOA”), the Association of Apartment Owners of the Coconut Grove on Kapalua, and the Association of Apartment Owners of the Ridge at Kapalua (three owner associations located within the Kapalua Resort Association (“KRA”)), and Hui Momona Farms LLC, a Hawaii-based company that is a member of PELOA (collectively, the “Plaintiffs”), filed a complaint against the Company in the Circuity Court of the Second Circuit, State of Hawaii. The complaint alleged the Company failed to provide irrigation water from Honokohau Stream due to an alleged failure to maintain the ditch system that transports water from the stream. The complaint seeks declaratory and injunctive relief and unspecified monetary damages. The Company's insurance carrier accepted the claim and tendered defense on behalf of the Company.
In September 2025, the Company responded to the complaint and asserted counterclaims, including claims based on, alleged violations by Plaintiffs of irrigation-use restrictions intended to protect public trust purposes and fire protection for the entire Kapalua community as well as claims relating to alleged defamatory statements. At the time of filing this Annual Report, the Company cannot reasonably estimate the possible loss or range of loss, or recovery from the counterclaim, if any, associated with this matter. The Company intends to defend against the claims and to prosecute its counterclaims.
Since 2019, the availability of divertible water from Honokohau Stream has been reduced under Hawaii state law. In addition, the stream has experienced record low flows associated with historic drought conditions impacting the island of Maui. At its September 2025 meeting, the Commission on Water Resource Management, the state agency responsible for administering the state water code, reported that rainfall contributes to runoff and baseflow to streams, and that for the period between September 2024and August 2025, annual rainfall in Honokohau Valley was 46% of normal. As a result of reduced rainfall and Hawaii state law public trust uses, including drinking water and traditional practices, there has been less water available for private commercial irrigation.
KRA Annexations
In 2024 and 2025, the Company, as the developer of Kapalua and member of the KRA, annexed certain lands into Kapalua in accordance with procedures set forth in the KRA’s governing declaration. KRA's records reflect the annexed lands are part of Kapalua.
On September 25, 2025, TY Management Corporation and derivatively on behalf of KRA, filed a lawsuit in the Circuit Court of the Second Circuit, State of Hawai‘i, against certain directors of KRA and the Company as declarant of KRA, alleging that the annexations and related voting rights are invalid. As a result of the disputes regarding the annexations and related voting rights, KRA’s annual meeting had not been held as of the date of this Annual Report, as required to be held by Hawaii statutes.
On October 10, 2025, the Company, as a member of KRA and developer of Kapalua, petitioned the Second Circuit Court, State of Hawai‘i, to set the annual meeting.
At the time of filing of this Annual Report, the financial impact to the Company, if any, cannot be determined or estimated. KRA is responsible for the defense of the directors named in the claim. The Company will fully defend against and prosecute the allegations.
From time to time, we are a party to various legal proceedings, disputes, and other claims, arising in the ordinary course of business. Although the results of these ordinary course matters cannot be predicted with certainty, we believe the final outcome of these ordinary course legal proceedings will not, individually or in the aggregate, have a material adverse effect on our operations, financial position or cash flows.
| Item 4. |
MINE SAFETY DISCLOSURES |
Not applicable.
| Item 5. |
MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES |
Our common stock is traded on the NYSE under the symbol “MLP.” As of March 12, 2026, there were 218 stockholders of record of our common stock, which do not include beneficial owners of our common stock whose shares are held in the names of various securities brokers, dealers and registered clearing agencies.
Dividend Policy
We have not declared or paid any cash dividends on our common stock since March 2001. We currently do not anticipate declaring or paying any cash dividends.
Unregistered Sales of Equity Securities
None.
Repurchases
None.
| [RESERVED] |
| MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
The following discussion and analysis of our Annual Report on Form 10-K and audited consolidated financial statements and related notes are for the year ended December 31, 2025. The following discussion contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those expressed or implied by the forward-looking statements below. Factors that could cause or contribute to those differences in our actual results include, but are not limited to, those discussed below and those discussed elsewhere within this Quarterly Report, particularly in the section entitled “Cautionary Note Regarding Forward-Looking Statements.” Depending upon the context, the terms the “Company,” “we,” “our,” and “us,” refer to either Maui Land & Pineapple Company, Inc. alone, or to Maui Land & Pineapple Company, Inc. and its subsidiaries collectively.
Overview
We own and manage a diverse portfolio including approximately 22,300 acres of land on the island of Maui, Hawaii along with approximately 247,000 square feet of commercial real estate. For over a century, we have built a legacy of authentic innovation through conservation, agriculture, community building and land management. Our current portfolio of assets includes unimproved land, entitled land allowing for various residential and mixed-use construction, and completed commercial properties.
In recent years, we have continued to implement our strategic plan focused on our mission of optimizing our assets for their most productive use. We have advanced a range of land development and housing projects designed to build stronger and more vibrant communities and enhance long-term asset value. We strengthened our foundation with the addition of key experts to our board and management team to ensure we can effectively establish plans for each parcel and self-perform value creating projects. We also created a land management team responsible for risk mitigation strategies and productive use of fallow farm and ranch lands throughout our portfolio. Our local team has enhanced our ability to manage assets effectively and execute value-creating projects. In 2024, we established new office locations in West Maui and Upcountry, to enable our team to be present within the community to foster stronger relationships and ensure responsible stewardship of our assets.
In 2025, we continue to advance efforts to maximize the productivity of our leasable land and commercial properties. We identified and addressed critical deferred maintenance in our town centers, allowing us to create spaces for many businesses who lost their locations in the 2023 Maui wildfires. This effort has increased occupancy and leasing revenue over the past year while adding vibrancy and creating a sense of place in our communities. As of December 31, 2025, our commercial properties and land were occupied at the following levels:
| Commercial Real Estate |
Total |
Leased |
Net increase (decrease) in leased area for 2025 |
|||||||||||||
| Sq. ft. |
Sq. ft. |
Percent |
Sq. ft. |
|||||||||||||
| Industrial |
168,880 |
151,105 |
89 |
% |
8,952 |
|||||||||||
| Office |
10,105 |
10,105 |
100 |
% |
- |
|||||||||||
| Retail |
61,004 |
58,852 |
96 |
% |
2,540 |
|||||||||||
| Residential |
7,339 |
7,339 |
100 |
% |
4,339 |
|||||||||||
| Total CRE |
247,328 |
227,401 |
92 |
% |
15,831 |
|||||||||||
| Land |
Total |
Leased |
Net increase (decrease) in leased area for 2025 |
|||||||||||||
| Acres |
Acres |
Percent |
Acres |
|||||||||||||
| Commercial/Industrial |
19 |
19 |
100 |
% |
- |
|||||||||||
| Residential |
866 |
12 |
1 |
% |
- |
|||||||||||
| Agriculture |
10,356 |
4,656 |
45 |
% |
3 |
|||||||||||
| Conservation |
11,045 |
- |
0 |
% |
- |
|||||||||||
| Total Land |
22,286 |
4,687 |
21 |
% |
3 |
|||||||||||
During 2025, the team increased commercial property occupancy from 86% to 92%, including tenant relocations and improvements necessary to enhance the variety and quality of experiences in our town centers. During the two-year period from January 1, 2024 to December 31, 2025, the Company executed 42 new leases, 15 of which were executed in the year ended December 31, 2025. Of the total leases, 34 of them were commercial property leases covering 83,812 leasable square feet and 8 of them were land leases covering 1,131 acres.
This effort will continue, along with capital improvements necessary to continue attracting top tier tenants. In addition to stable cashflow in a supply-constrained market, our commercial properties allow us to perform value-creating placemaking for our surrounding landholdings. We anticipate cashflow from our commercial properties to increase in the coming years as we reach stabilization, the Maui market continues to recover from the 2023 Maui wildfires, and we complete the tenant improvements and leasing costs inherent with new tenancies.
To enable the productive use of land for homes, businesses, farms, resort projects, or otherwise, we generally must make improvements to the land. These improvements take the form of master planning, entitlements and zoning, subdivision of large parcels into useful lot sizes, or the addition of infrastructure, enabling it to be placed into productive use. In 2024, we completed portfolio-wide strategic plans across all 22,300 acres to prioritize and guide actions of the Company in the forthcoming quarters. The execution of 42 commercial and land leases since January 1, 2024 demonstrates the successful implementation of this strategy.
Our strategic plan for land utilization aligns with our mission to meet the current and future needs of the community, in a significantly supply-constrained market. In 2025 and 2024, we listed non-strategic assets for sale and began monetizing them through direct customer sales and a structured partnership approach. The plan identified four categories of improved and unimproved land actions as follows in the table below.
| Category |
Region |
Property |
Approximate Land Area (acres) |
Current Land Use/Zoning |
Improvements in process |
# of Paracels or # of allowable units/lots |
| 1. Improved Land - Remnant and non-strategic parcels planned for sale |
West Maui |
Five Miscellaneous Non-strategic properties |
67 |
Miscellaneous |
Complete |
5 parcels |
| Upcountry |
Three Miscellaneous Non-strategic properties |
24 |
Miscellaneous |
Complete |
3 parcels |
|
| 2. Improved Land - Property in active marketing for sale and/or development |
West Maui |
Kapalua Resort - Makai |
36 |
Resort mixed-use |
Planning |
Existing Entitlements allow for up to 769 residential units, 545 hotel units, and commercial space across both project areas. |
| West Maui |
Kapalua Resort - Central |
46 |
Resort mixed-use |
Planning, Permitting |
||
| 3. Unimproved Land - Property in active planning and improvements |
West Maui |
Kapalua Resort - Mauka |
922 |
Resort Residential |
Planning, Permitting |
Existing Entitlements allow for up to 639 single-family homes or lots |
| West Maui |
Honokeana Homes – State Temporary Housing |
50 |
Agriculture |
Design, permitting |
Up to 200 single-family lots |
|
| Upcountry |
Hali‘imaile Ranch |
325 |
Agriculture |
Subdivision Design |
Approximately 24 farm lots |
|
| West Maui |
Honokeana Farms |
1,725 |
Agriculture |
Planning |
Approximately 250 farm lots across both project areas. |
|
| West Maui |
Kapalua Ranch |
914 |
Agriculture |
Planning |
||
| Upcountry |
Hali‘imaile Farms |
757 |
Agriculture |
Planning |
Approximately 102 farm lots |
|
| West Maui |
Kahana Farms |
2,640 |
Agriculture |
Planning |
Approximately 200 farm lots |
|
| Upcountry |
Hali‘imaile Farm Land |
348 |
Agriculture |
Planning |
TBD |
|
| 4. Unimproved Land - Property being marketed for long-term lease and ongoing asset management |
West Maui |
Honolua Farm Land |
1,604 |
Agriculture |
Asset management |
TBD |
| West Maui |
Honokohau Farm Land |
1,884 |
Agriculture |
Asset management |
TBD |
|
| West Maui |
Watershed Conservation Land |
10,452 |
Conservation |
Asset management |
TBD |
|
| West Maui |
Waterfront Conservation Land |
492 |
Conservation |
Asset management |
TBD |
|
| Total Land Portfolio Area (acres) |
22,286 |
|||||
Near-term sales revenues (1-3 years) may be anticipated from our remnant and non-strategic parcels for sale, along with improved land in active marketing for sale and/or development.
In 2024, our team began to self-perform priority land development projects, including the planning and engineering of Kapalua Resort projects and the preliminary subdivision of a 325-acre former ranch site in Upcountry, Maui. Unimproved land in active planning and improvements will likely require three or more years before improvements are completed and revenue generation is realized. Funding for soft cost improvements, if not covered by our commercial properties and land leasing cashflow, will likely be provided by remnant non-strategic parcel sales and our revolving line of credit. In 2025, we sold six remnant land parcels for aggregate proceeds of $2.4 million and a $10.0 million purchase agreement with Harvest Church was executed for a 6.5-acre parcel to be used for its Kapalua campus. We currently expect the closing to occur in 2027, subject to customary closing conditions. As we incur infrastructure and other site improvement hard costs, we expect to fund them primarilythrough project presale deposits and construction financing.
For the Honokeana Homes State Temporary Housing Project, we have leased approximately 50 acres to the State of Hawai‘i and we are administering construction of necessary improvements to support temporary homes for individuals and families displaced by the Maui wildfires on August 8, 2023. The land will be leased at no cost for a term of five years, plus the duration of time necessary to construct the temporary homes. The land is a portion of a larger, 1,377-acre parcel owned by the Company. The agreement provides the State will fund all costs to complete the project, including approximately $35.5 million to complete the necessary horizontal improvements. The Company has agreed to administer the construction of the horizontal improvements and, at the State’s election, the subsequent vertical improvements for which costs have not yet been estimated. We will provide these administration services to the State at its cost and will not directly profit from these services. After the end of the lease, the State will remove any vertical improvements unless the Company requests that specific improvements remain. As of the date of this Annual Report, the project is on hold at the direction of the State of Hawaii. At the time of filing of this Annual Report, we have not received an update on the project or an indication to when the project will resume. During the year ended December 31, 2025, MLP recorded $3.4 million in Honokeana Homes project revenue, which was State of Hawai’I reimbursement for the costs incurred by the Company.
We expect unimproved land identified for long-term leasing and ongoing asset management to be leased or licensed for diversified agricultural, conservation, and cultural uses for at least the next ten years. We have approximately 1,026 acres have been leased to Ka Ike Ranch, a local family-owned and operated business committed to local food production and sustainable ranching. Our unimproved land portfolio also includes the Pu’u Kukui Watershed, which is over 8,600 acres and is actively managed to maximize rainfall capture and recharge of the aquifer which provides approximately 70% of the water consumed in West Maui. The Company is focused on continuing to increase the occupancy of these agricultural lands to improve productivity via economic activity and local food production.
RESULTS OF OPERATIONS
Comparison of Years Ended December 31, 2025 and 2024
CONSOLIDATED
| Years Ended December 31, |
||||||||
| 2025 |
2024 |
|||||||
| (in thousands) |
||||||||
| Operating revenues |
$ | 19,457 | $ | 11,565 | ||||
| Segment operating costs and expenses |
(13,807 | ) | (7,587 | ) | ||||
| General and administrative |
(4,744 | ) | (4,297 | ) | ||||
| Share-based compensation |
(4,318 | ) | (6,312 | ) | ||||
| Depreciation |
(1,135 | ) | (723 | ) | ||||
| Operating loss |
(4,547 | ) | (7,354 | ) | ||||
| Gain from dercognition of nonfinancial asset |
- | - | ||||||
| Gain (Loss) on asset disposal |
(15 | ) | 48 | |||||
| Other income |
1,111 | 924 | ||||||
| Pension and other postretirement expenses |
(6,912 | ) | (948 | ) | ||||
| Interest expense |
(216 | ) | (61 | ) | ||||
| Net loss |
$ | (10,579 | ) | (7,391 | ) | |||
| Net loss per Common Share - Basic and Diluted |
$ | (0.54 | ) | $ | (0.38 | ) | ||
LAND DEVELOPMENT AND SALES
| Years Ended December 31, |
||||||||
| 2025 |
2024 |
|||||||
| (in thousands) |
||||||||
| Operating revenues |
$ | 5,811 | $ | 520 | ||||
| Operating costs and expenses |
(3,963 | ) | (1,104 | ) | ||||
| Operating income (loss) |
$ | 1,848 | $ | (584 | ) | |||
Land Development and Sales operating revenues include the sales of our real estate inventory. The increase in our Land Development and Sales revenues and expenses for the year ended December 31, 2025 compared to the year ended December 31, 2024 was attributed to sales of non-strategic remnant real estate inventory and construction revenues and expenses for the Honokeana Homes Temporary Housing Project incurred during the year.
The most significant real estate development expenditures during the year ended December 31, 2025 were related to the Honokeana Homes Temporary Housing Project. There were no significant real estate development expenditures during the year ended December 31, 2024.
The Company returned to its agricultural heritage and launched a new drought-tolerant agricultural venture, planting approximately 38 acres of blue weber agave on underutilized croplands in Upcountry, Maui, during the year ended December 31, 2025. The Company will advance efforts to develop value-added products with this drought-tolerant crop. Agave will be reported as a new business segment beginning in the first quarter reporting of 2026. This agricultural venture is integrated with the subdivision of the 325-acre former ranch site, Hali‘imaile Ranch in Upcountry, Maui.
Land Development and Sales activities are cyclical and depend on several factors. Results for one period are therefore not necessarily indicative of future performance trends in this business segment. Prior to the Maui wildfires there was a shortage of primary housing supply on Maui. While the provision of land to generate primary housing and additional jobs was a priority of ours prior to the wildfires, the loss of over 2,000 homes and over 3,000 jobs in the Lahaina wildfire have accelerated our efforts to get land into productive use to meet these critical needs.
LEASING
| Years Ended |
||||||||
| December 31, |
||||||||
| 2025 |
2024 |
|||||||
| (in thousands) |
||||||||
| Operating revenues |
$ | 12,799 | $ | 9,621 | ||||
| Operating costs and expenses |
(8, 456 | ) | (5,006 | ) | ||||
| Operating income |
$ | 4,343 | $ | 4,615 | ||||
Operating revenues from leasing activities for the year ended December 31, 2025, were comprised of $9.5 million from commercial, industrial, and agricultural leases, $0.1 million of licensing fees from our registered trademarks and trade names, $2.9 million from potable and non-potable water system sales and $0.3 million in grant revenue from the State of Hawai‘i for conservation management of our Pu‘u Kukui Watershed, compared to $8.0 million from commercial, industrial, and agricultural leases, $0.2 million of licensing fees from our registered trademarks and trade names, $1.1 million from potable and non-potable water system sales and $0.3 million in grant revenue from the State of Hawai‘i for conservation management of our Pu‘u Kukui Watershed for the year ended December 31, 2024.
Certain rental income is contingent upon the sales of tenants exceeding a defined threshold and recognized as a percentage of sales after those thresholds are achieved. As the COVID-19 pandemic waned, visitor traffic to Maui increased and these percentage rents, leasing revenues in general and land licensing from adventure tourism tenants were returning to pre-pandemic levels until the 2023 Maui wildfires. The wildfires impacted West Maui tourism and reduced percentage rents and licensing revenues for tourism-based tenants. Revenue recognized from percentage rents and land licensing in 2025 amounted to $2.4 million as compared to $2.3 million in 2024, an increase of $0.1 million. Tourist traffic has started increasing again post-wildfire, and as a result, it is anticipated that percentage rents will return to pre-wildfire levels in 2026 to 2027.
The increase in leasing operating costs and expenses for the year ended December 31, 2025, compared to the year ended December 31, 2024, was primarily due to higher insurance costs and property maintenance costs for our commercial leasing portfolio properties and the property management fees and leasing commissions to grow our leasing portfolio..
Our leasing operations face substantial competition from other property owners in Maui and Hawai‘i.
RESORT AMENITIES
| Years Ended |
||||||||
| December 31, |
||||||||
| 2025 |
2024 |
|||||||
| (in thousands) |
||||||||
| Operating revenues |
$ | 847 | $ | 1,424 | ||||
| Operating costs and expenses |
(1,388 | ) | (1,477 | ) | ||||
| Operating income (loss) |
$ | (541 | ) | $ | (53 | ) | ||
Our Resort Amenities segment includes the operations of the Kapalua Club, a private, non-equity club providing its members special programs, access and other privileges at certain of the amenities at the Kapalua Resort including a 30,000 square foot full-service spa and fitness center, a private pool-side dining beach club, and two 18-hole championship golf courses. The Kapalua Club does not own or operate any resort amenities and the member dues collected are primarily used to pay contracted fees to provide access for its members to the spa, beach club and other resort amenities.
The decrease in operating revenues for the year ended December 31, 2025, compared to the year ended December 31, 2024, were due to discontinued fractional memberships for a resort hotel property, a dues refund during a two month closure of the golf courses, and one-time collection of past due debts in 2024 that did not re-occur in 2025.
OTHER INCOME
Investment income of approximately $0.3 million was earned from our money market and bond investment portfolio during the years ended December 31, 2025 and 2024.
Insurance claim proceeds of approximately $0.6 million was recognized during the year ended December 31, 2025 for repairs and reconstruction costs required to rebuild the Puu Koa Reservoir. The reservoir liner was severely damaged as a result of the high winds during the August 2023 Maui wildfires.
An Employee Retention Credit, a COVID relief tax credit of approximately $0.2 million was received and recognized during the year ended December 31, 2025.
In December 2023, the Company entered into a joint venture agreement with a local developer to form a Hawai‘i limited liability company ("BRE2 LLC"). The Company's initial capital contribution to BRE2 LLC consisted of approximately 31 acres of former pineapple lands in Hali‘imaile valued at $1.6 million. The first lot sold for $1.8 million in December 2024 and the second lot sold for $2.4 million in February of 2025. The Company received a distribution from BRE2 LLC in the amount of $1.0 million during the year ended December 31, 2024 and approximately $1.1 million during the year ended December 31, 2025. The remaining investment value of approximately $40,000 was written off during 2025.
PENSION EXPENSE
In 2025, we terminated our defined benefit pension plan (the “Defined Plan”). In connection with the termination, we recognized a settlement expense in the amount of $6,556,000 during the year ended December 31, 2025. We recorded an expense recovery of $587,000 during the year ended December 31, 2025. We made a cash contribution to the Defined Plan in the amount of $1,060,000 during the year ended December 31, 2025. No contributions to the plan were required in 2024. The GAAP expense related to the plan termination directly impacted net loss in 2025 however, expense for the Defined Plan termination was a one-time event.
SHARE-BASED COMPENSATION PLANS
The Company accounts for share-based compensation, including grants of restricted shares of common stock and options to purchase common shares, as compensation expense over the respective vesting periods in the consolidated financial statements based on their fair values on the grant dates. The impact of any forfeitures that may occur prior to vesting is estimated and considered in the expense recognized. The decrease in share-based compensation expenses were primarily attributed to a $2.2 million decrease in non-cash stock compensation costs during the year ended December 31, 2025 due to valuation expenses for stock options issued to the directors of the Company and the Chief Executive Officer. Beginning in 2025, the Compensation Committee eliminated the use of options and replaced them with restricted stock grants. This change provides more predictable value to directors and executives while maintaining alignment with shareholders and reduces the number of underlying shares used to compensate our Directors and Named Executive Officers and the related compensation expense.
INTEREST EXPENSE
There was $4.0 million of borrowings outstanding on our credit facility with a bank at December 31, 2025. There were $3.0 million of borrowings outstanding at December 31, 2024. On December 31, 2025 and 2024, interest rates on our credit facility were 5.625% and 6.375%, respectively. Interest expense paid on our credit facility during the year ended December 31, 2025 and 2024 equaled approximately $186,000 and $55,000, respectively.
LIQUIDITY AND CAPITAL RESOURCES
We had cash on hand of $5.3 million and $6.8 million at December 31, 2025 and 2024, respectively. We hold deposit accounts with several local banks in Hawai‘i. Accounts at each institution are insured by the Federal Deposit Insurance Corporation up to $250,000. We rely on the financial strength and stability of these banks and have no reason to believe that our deposits would be unavailable on demand.
Our investments consisted of corporate bond securities maturing over various dates through the end of 2025. All the bond investments matured during 2025 and the fair value of investments was $0 at December 31, 2025.
We also had $21.0 million and $12.0 million of available credit under a revolving line of credit facility with First Hawaiian Bank (the “Bank”) (the “Credit Facility”) as of December 31, 2025 and 2024, respectively. On December 22, 2025, we executed a Sixth Loan Modification Agreement and Third Amended and Restated Credit Agreement (collectively the “Agreements”) extending the maturity date of the Credit Facility to December 31, 2030 and increasing the credit limit to $25.0 million. The Agreements provide revolving or term loan borrowing options. Interest on revolving borrowing is calculated based on the Bank’s prime rate minus 1.125 percentage points. Interest on term loan borrowing is fixed at the Bank’s commercial loan rates with interest rate swap options available. We have pledged approximately 30,000 square feet of commercial leased space in the Kapalua Resort as security for the Credit Facility. Net proceeds from the sale of any collateral are required to be repaid toward outstanding borrowings and will permanently reduce the Credit Facility’s revolving commitment amount. There are no commitment fees on the unused portion of the Credit Facility. The terms of the Credit Facility include various representations, warranties, affirmative, negative, and financial covenants and events of default customary for financings of this type. Financial covenants include a minimum liquidity (as defined) of $2.0 million, a maximum of $45.0 million in total liabilities, and a limitation on new indebtedness.
We were in compliance with the covenants under the Credit Facility at December 31, 2025.
Cash Flows
Net cash flow provided by our operating activities totaled $0.2 million and $0.4 million for the years ended December 31, 2025 and 2024, respectively.
Plan cash contributions in the amount of $1,060,000 were made to the Defined Plan during the year ended December 31, 2025. Minimum funding contributions to our defined benefit pension plan were not required during the year ended December 31, 2024.
Interest income from our investment portfolio was $0.3 million for each of the years ended December 31, 2025 and 2024. Our bond investments yielded approximately 2.90% and 4.35% in aggregate at December 31, 2025 and 2024, respectively.
Future Cash Inflows and Outflows
Land development costs to be capitalized are budgeted at $4.6 million for 2026. This includes costs for planning, engineering, permitting, subdivision, and preliminary site improvements on various projects totaling approximately 7,900 acres. These projects include three Kapalua resort projects (Central Resort, Mauka, and Makai) along with farm subdivision projects in Upcountry and West Maui. This investment reflects the expanding volume of active, value-adding projects in the pipeline to create value and meet Maui's need for increased housing inventory, job opportunities, and farms for local food production.
Maintenance and capital improvements on the Company’s commercial assets in the Kapalua Town Center, Alaeloa Business Center and the Hali‘imaile Town Center are budgeted at $0.8 million and we estimate that $1.8 million will be expended on our water assets and infrastructure which includes our West Maui water wells, Honolua ditch system, Ka‘ili‘ili ditch system in upcountry Maui and our Hali‘imaile Waste Water Treatment system. Budgeted amounts are approximate estimates and can vary significantly based on a number of factors. Costs in excess of billings amounts may materially and adversely affect our operating results, liquidity and financial condition.
Our business initiatives include investing in our operating infrastructure and continued planning and entitlement efforts on our development projects. At times, this may require borrowing under our Credit Facility or other indebtedness, repayment of which may be dependent on selling of our real estate assets at acceptable prices in condensed timeframes. We believe our cash and investment balances, cash provided from ongoing operating activities, and available borrowings under our revolving credit facility, will provide sufficient liquidity to enable us to meet our working capital requirements, contractual obligations, and timely service our debt obligations for the next 12 months and the foreseeable longer term.
Our indebtedness could have the effect of, among other things, increasing our exposure to general adverse economic and industry conditions, limiting our flexibility in planning for, or reacting to, changes in our business and industry, and limiting our ability to borrow additional funds.
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Our accounting policies are described in Note 1 to our financial statements set forth in Item 8 of this Annual Report. The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires the use of accounting estimates. Some of these estimates and assumptions involve a high level of subjectivity and judgment and therefore the impact of a change in these estimates and assumptions could materially affect the amounts reported in our financial statements. The accounting policies and estimates that we have identified as being critical to our financial statements are as follows:
| • |
Our long-lived assets are reviewed for impairment if events or circumstances indicate that the carrying amount of the long-lived asset may not be recoverable. These asset impairment loss analyses contain uncertainties because they require management to make assumptions and apply considerable judgments to, among others, estimates of the timing and amount of future cash flows, expected useful lives of the assets, uncertainty about future events, including changes in economic conditions, changes in operating performance, changes in the use of the assets, and ongoing costs of maintenance and improvements of the assets; thus, the accounting estimates may change from period to period. If management uses different assumptions or if different conditions occur in future periods, our financial condition or future operating results could be materially impacted. |
| • |
Deferred development costs consist principally of predevelopment and offsite development costs related to various projects in the planning stages by our real estate segment. Based on our future development plans for the Kapalua Resort and other properties, and the estimated value of these future projects, we have concluded that our deferred development costs will be recoverable from our future development projects. Our assumptions and estimates could be subject to significant change because of the long-term nature of our development plans and the uncertainty of when or if certain projects will be developed. |
| • |
Assets are classified as held for sale when (i) management approves and commits to a plan to sell the property; (ii) the property is available for immediate sale in its present condition, subject only to terms that are usual and customary; (iii) an active program to locate a buyer and other actions required to complete the plan to sell have been initiated; (iv) the sale of the property is probable and is expected to be completed within one year; (v) the property is being actively marketed for sale at a price that is reasonable in relation to its current fair value; and (vi) actions necessary to complete the plan of sale indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Assets held for sale are stated at the lower of net book value or estimated fair value less cost to sell. |
| • |
Held-to-maturity debt securities are stated at amortized cost. Investments are reviewed for impairment by management on a periodic basis. If any impairment is considered other-than-temporary, the security is written down to its fair value and a corresponding loss recorded as a component of other income (expense). Management measures expected credit losses on held-to-maturity debt securities on a collective basis by major type. If there are anticipated credit losses a reserve for credit losses will be established and held to debt maturities will be presented net of the allowance. There were no accrued interest receivable on held-to-maturity debt securities at December 31, 2025. |
| • |
Sales of real estate assets that are considered central to our ongoing major operations are classified as real estate sales revenue, along with any associated cost of sales, in our consolidated statements of operations. Sales of real estate assets that are considered peripheral or incidental transactions to our ongoing major or central operations are reflected as net gains or losses in our consolidated statements of operations. |
| • |
If the sale of a real estate asset represents a strategic shift that has, or will have, a major effect on our operations, such as the discontinuance of a business segment, then the operations of the property, including any interest expense directly attributable to it, are classified as discontinued operations, and amounts for all prior periods presented are reclassified from continuing operations to discontinued operations. The disposal of an individual property generally will not represent a strategic shift and, therefore, will typically not meet the criteria for classification as discontinued operations. Real estate assets that would be considered for sale are remnant parcels that are not part of existing strategic development plans and projects. |
| • |
Determining pension expense and obligations for our defined benefit pension plan utilizes actuarial estimates of participants’ age at retirement, life span, the long-term rate of return on investments and other factors. In addition, pension expense is sensitive to the discount rate utilized to value the pension obligation. These assumptions are subject to the risk of change as they require significant judgment and have inherent uncertainties that management or its consulting actuaries may not control or anticipate. A detailed discussion of our defined benefit pension plans is contained in Note 7 to our financial statements set forth in Item 8 of this Annual Report. |
| • |
Stock options were issued to the Chairperson of the Board, members of the Board, and the Chief Executive Officer. With the option issuances, management engages with a certified valuation company to perform the valuation analysis and calculations based on option terms, underlying stock price, exercise price, volatility, expected term, risk-free rate, and dividend yield option terms, number of shares issued, issuance share price, volatility, risk and historical trends with the options issuances. The fair value of the option grants is reviewed and approved by the Company’s Audit Committee and valuation stock based compensation expenses are recognized over the duration of the vesting period of the issuances. For cancellations of options, the remaining unvested option valuation expense will be accelerated and expensed immediately upon the option cancellation date. |
| • |
Management calculates the income tax provision, current and deferred income taxes, and tax credits along with the valuation allowance based upon various complex estimates and interpretations of income tax laws and regulations. Deferred tax assets and tax credits are reduced by a valuation allowance to the extent that it is more likely than not that they will not be realized. To the extent we begin to generate taxable income in future years, and it is determined the valuation allowance is no longer required, the tax benefit for the remaining deferred tax assets and tax credits will be recognized at such time. A detailed discussion of our income taxes is contained in Note 12 to our financial statements set forth in Item 8 of this Annual Report. |
| • |
Our results of operations could be affected by significant litigation or contingencies adverse to the Company, including, but not limited to, liability claims, environmental matters, and contract terminations. We record accruals for legal matters when the information available indicates that it is probable that a liability has been incurred and the amount of the loss can be reasonably estimated. We make adjustments to these accruals to reflect the impact and status of negotiations, settlements, rulings, advice of legal counsel and other information and events that may pertain to a particular matter. Predicting the outcome of claims and lawsuits and estimating related costs and exposure involves substantial uncertainties that could cause actual costs to vary materially from those estimates. In making determinations of likely outcomes of litigation matters, we consider many factors. These factors include, but are not limited to, the nature of specific claims, our experience with similar types of claims, the jurisdiction in which the matter is filed, input from outside legal counsel, the likelihood of resolving the matter through alternative dispute resolution mechanisms and the matter’s current status. A detailed discussion of significant litigation matters and contingencies is contained in Note 9 to our financial statements set forth in Item 8 of this Annual Report. |
| • |
The construction contract for the Honokeana Homes Temporary Housing Project follows the cost to cost accounting method. Contracting revenues and expenses are proportionately recognized based on actual costs incurred in relation to reliable and updated estimates of the cost to complete the project. Project billings in excess of recognized revenues are recognized as Billings in Excess of Revenues (a deferred revenue account) and where project costs are recognized in excess of project billings, this is recognized as Contract overbillings (a deferred expense account). |
IMPACT OF INFLATION AND CHANGING PRICES
Most land holdings we own were acquired from 1911 to 1932 and are carried at cost. At the Kapalua Resort, some of the fixed assets were constructed and placed in service in the mid-to-late 1970s. Depreciation expense would be considerably higher if fixed assets were stated at current replacement cost.
OFF-BALANCE SHEET ARRANGEMENTS
As of December 31, 2025, we did not have any significant off-balance sheet arrangements, as defined in Item 303(a)(4)(ii) of Regulation S-K.
| Item 7A. |
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
We are a smaller reporting company, as defined in Item 10(f)(1) of Regulation S-K and are not required to provide the information required by this Item.
| Item 8. | FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
Maui Land & Pineapple Company, Inc.
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheets of Maui Land & Pineapple Company, Inc. and its Subsidiaries (collectively, the “Company”) as of December 31, 2025 and 2024, and the related consolidated statements of operations and comprehensive loss, changes in stockholders’ equity, and cash flows for each of the years in the two‑year period ended December 31, 2025 and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of the Company as of December 31, 2025 and 2024, and the results of their operations and their cash flows for each of the years in the two‑year period ended December 31, 2025 in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
The consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the U.S. Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, 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.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that was communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
Commitments and Contingencies
Description of the Matter
The Company is party to claims that arise in the normal course of business. Contingent liabilities are recorded in the consolidated financial statements when management determines it is probable that a liability has been incurred and the amount can be reasonably estimated. This determination requires significant judgment by management.
In assessing whether the Company should accrue a liability in its consolidated financial statements as a result of the claims, the Company considers various factors, including the legal and factual circumstances of the claims and advisement from legal counsel. As discussed in Note 9 to the consolidated financial statements, management determined an accrual was necessary. Management is unable to estimate the remaining amount or range of amounts, of any additional probable liability, if any, related to the claims.
We identified these potential contingent liabilities and disclosures as a critical audit matter because evaluating the likelihood of potential outcomes involves significant judgment by management. This required a high degree of auditor judgment and an increased extent of effort when performing audit procedures to evaluate the Company’s assertion that an additional loss is not probable and reasonably estimable as of December 31, 2025.
How We Addressed the Matter in Our Audit
Our audit procedures over commitments and contingencies included the following:
| ● | We obtained an understanding and evaluated the design and implementation of internal controls that address the risks of material misstatement relating to management’s review of the claims and approval of the accounting treatment based on the most recent facts and circumstances. |
| ● | We obtained and evaluated legal confirmations from the Company’s external legal counsel involved in the claims confirming the facts and circumstances of the claims and evaluated insurance agreements to understand the basis for management’s conclusion that any additional losses from the claims are not probable and reasonably estimable as of December 31, 2025. |
| ● | We evaluated the accuracy and completeness of management’s estimates reviewing a haphazard sample of legal invoices during the year ended December 31, 2025. |
| ● | We evaluated the accuracy and completeness of management’s disclosures in the consolidated financial statements by comparing the disclosures to management’s internal analysis of the claims and known facts of the claims based on the information provided by the Company’s external legal counsel. |
Accrued Retirement Benefits
Description of the Matter
The estimated benefit obligations and related amounts reported in the Company’s consolidated financial statements as of and for the year ended December 31, 2025. Management engages actuarial specialists to perform the valuation and provides the specialists with the assumptions used to measure the amounts reported in the consolidated financial statements and disclosures in the notes to the consolidated financial statements. In 2025, the Company annuitized the scheduled pension payments of the remaining participants in its pension plans to formally terminate the plans. This transaction resulted in settlement adjustments with a material effect on the Company’s consolidated financial statements.
We identified the valuation of the accumulated retirement benefit obligation as a critical audit matter because of the highly judgmental nature of actuarial assumptions made by management and the unique settlement in 2025. This required a high degree of auditor judgment and an increased extent of effort when performing audit procedures over the termination settlement.
How We Addressed the Matter in Our Audit
Our audit procedures over accrued retirement benefits included the following:
| ● | We obtained an understanding and evaluated the design and implementation of internal controls that address the risks of material misstatement relating to management’s review of the determination of the actuarial assumptions used in calculating accrued retirement benefits and related amounts. |
| ● | We evaluated the reasonableness of the methods and significant assumptions used by management and assessed the work and competency of the third-party actuarial specialists engaged by management. |
| ● | We evaluated management specialists’ reports and underlying data used related to the pension termination and settlement transaction for completeness, accuracy and reasonableness. |
/s/
We have served as the Company’s auditor since 2014.
March 31, 2026
MAUI LAND & PINEAPPLE COMPANY, INC. & SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
| December 31, 2025 | December 31, 2024 | |||||||
| (audited) | (audited) | |||||||
| (in thousands except share data) | ||||||||
| ASSETS | ||||||||
| CURRENT ASSETS | ||||||||
| Cash and cash equivalents | $ | $ | ||||||
| Accounts receivable, net | ||||||||
| Investments, current portion | ||||||||
| Prepaid expenses and other assets | ||||||||
| Assets held for sale | ||||||||
| Total current assets | ||||||||
| PROPERTY & EQUIPMENT, NET | ||||||||
| OTHER ASSETS | ||||||||
| Investment in joint venture | ||||||||
| Deferred development costs - Development projects | ||||||||
| Deferred development costs - Agave venture | ||||||||
| Right of use assets | ||||||||
| Other noncurrent assets | ||||||||
| Total other assets | ||||||||
| TOTAL ASSETS | $ | $ | ||||||
| LIABILITIES & STOCKHOLDERS' EQUITY | ||||||||
| LIABILITIES | ||||||||
| CURRENT LIABILITIES | ||||||||
| Accounts payable | $ | $ | ||||||
| Payroll and employee benefits | ||||||||
| Accrued retirement benefits, current portion | ||||||||
| Deferred revenue, current portion | ||||||||
| Long-term debt, current portion | ||||||||
| Line of credit | ||||||||
| Lease liability, current portion | ||||||||
| Other current liabilities | ||||||||
| Contract overbillings | ||||||||
| Total current liabilities | ||||||||
| LONG-TERM LIABILITIES | ||||||||
| Accrued retirement benefits, noncurrent portion | ||||||||
| Line of credit | ||||||||
| Deferred revenue, noncurrent portion | ||||||||
| Deposits | ||||||||
| Long-term debt, noncurrent portion | ||||||||
| Lease liability, noncurrent portion | ||||||||
| Total long-term liabilities | ||||||||
| TOTAL LIABILITIES | ||||||||
| COMMITMENTS AND CONTINGENCIES | ||||||||
| STOCKHOLDERS' EQUITY | ||||||||
| Preferred stock--$ par value; shares authorized; shares issued and outstanding | ||||||||
| Common stock--$ par value; shares authorized; and shares issued and outstanding at December 31, 2025 and December 31, 2024, respectively | ||||||||
| Additional paid-in-capital | ||||||||
| Accumulated deficit | ( | ) | ( | ) | ||||
| Accumulated other comprehensive loss | ( | ) | ( | ) | ||||
| Total stockholders' equity | ||||||||
| TOTAL LIABILITIES & STOCKHOLDERS' EQUITY | $ | $ | ||||||
See Notes to Consolidated Financial Statements
MAUI LAND & PINEAPPLE COMPANY, INC. & SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
AND COMPREHENSIVE LOSS
| Years Ended | ||||||||
| 2025 | 2024 | |||||||
| (in thousands except | ||||||||
| per share amounts) | ||||||||
| OPERATING REVENUES | ||||||||
| Land development and sales | $ | $ | ||||||
| Leasing | ||||||||
| Resort amenities and other | ||||||||
| Total operating revenues | ||||||||
| OPERATING COSTS AND EXPENSES | ||||||||
| Land development and sales | ||||||||
| Leasing | ||||||||
| Resort amenities and other | ||||||||
| General and administrative | ||||||||
| Share-based compensation | ||||||||
| Depreciation | ||||||||
| Total operating costs and expenses | ||||||||
| OPERATING LOSS | ( | ) | ( | ) | ||||
| Gain (loss) on assets disposal, net | ( | ) | ||||||
| Other income | ||||||||
| Pension and other post-retirement expenses | ( | ) | ( | ) | ||||
| Interest expense | ( | ) | ( | ) | ||||
| NET LOSS | $ | ( | ) | $ | ( | ) | ||
| Other comprehensive income - pension, net | ||||||||
| TOTAL COMPREHENSIVE LOSS | $ | ( | ) | $ | ( | ) | ||
| NET LOSS PER COMMON SHARE-BASIC AND DILUTED | $ | ( | ) | $ | ( | ) | ||
See Notes to Consolidated Financial Statements
MAUI LAND & PINEAPPLE COMPANY, INC. & SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
For the Years Ended December 31, 2025 and 2024
(in thousands)
| Accumulated | ||||||||||||||||||||||||
| Additional | Other | |||||||||||||||||||||||
| Common Stock | Paid in | Accumulated | Comprehensive | |||||||||||||||||||||
| Shares | Amount | Capital | Deficit | Loss | Total | |||||||||||||||||||
| Balance, December 31, 2023 | $ | $ | $ | ( | ) | $ | ( | ) | $ | |||||||||||||||
| Share-based compensation expense | - | $ | $ | $ | ||||||||||||||||||||
| Issuance of shares for incentive plan | ||||||||||||||||||||||||
| Restricted stock and options cancellation | - | |||||||||||||||||||||||
| Vested restricted stock issued | ( | ) | ||||||||||||||||||||||
| Shares cancelled to pay tax liability | ( | ) | ( | ) | ( | ) | ||||||||||||||||||
| Other comprehensive income - pension | - | |||||||||||||||||||||||
| Net loss | - | ( | ) | ( | ) | |||||||||||||||||||
| Balance December 31, 2024 | $ | $ | $ | ( | ) | $ | ( | ) | $ | |||||||||||||||
| Share-based compensation | - | |||||||||||||||||||||||
| Issuance of shares for incentive plan | ||||||||||||||||||||||||
| Vested restricted stock issued | ( | ) | ||||||||||||||||||||||
| Shares cancelled to pay tax liability | ( | ) | ( | ) | ( | ) | ||||||||||||||||||
| Other comprehensive income - pension | - | |||||||||||||||||||||||
| Net loss | - | ( | ) | ( | ) | |||||||||||||||||||
| Balance, December 31, 2025 | ( | ) | ( | ) | ||||||||||||||||||||
See Notes to Consolidated Financial Statements
MAUI LAND & PINEAPPLE COMPANY, INC. & SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
| Years Ended | ||||||||
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| CASH FLOWS FROM OPERATING ACTIVITIES | ||||||||
| Cash receipts from customers and other receipts | $ | $ | ||||||
| Cash paid to vendors | ( | ) | ( | ) | ||||
| Cash paid for payroll and taxes | ( | ) | ( | ) | ||||
| NET CASH PROVIDED BY OPERATING ACTIVITIES | ||||||||
| CASH FLOWS FROM INVESTING ACTIVITIES | ||||||||
| Purchases of bond securities | ( | ) | ( | ) | ||||
| Maturities of bond securities | ||||||||
| Purchases of property and equipment | ( | ) | ( | ) | ||||
| Payments for deferred development | ( | ) | ( | ) | ||||
| Distributions from (Contribution to) unconsolidated joint venture | ||||||||
| NET CASH USED IN INVESTING ACTIVITIES | ( | ) | ( | ) | ||||
| CASH FLOWS FROM FINANCING ACTIVITIES | ||||||||
| Borrowing under line of credit | ||||||||
| Principal payments on long term debt | ( | ) | ( | ) | ||||
| Principal payments on financing agreements | ( | ) | ||||||
| Common stock issuance costs and other | ( | ) | ( | ) | ||||
| NET CASH (USED IN) PROVIDED BY FINANCING ACTIVITIES | ( | ) | ||||||
| NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS | ( | ) | ||||||
| CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD | ||||||||
| CASH AND CASH EQUIVALENTS AT END OF PERIOD | $ | $ | ||||||
| RECONCILIATION OF NET LOSS TO NET CASH PROVIDED BY OPERATING ACTIVITIES: | ||||||||
| Net loss | $ | ( | ) | $ | ( | ) | ||
| Adjustments to reconcile net loss to net cash provided by operating activities: | ||||||||
| Depreciation and amortization | ||||||||
| Provision for credit losses and impairments | ||||||||
| Share-based compensation | ||||||||
| Loss on disposal of property, net | ||||||||
| Debt financed equipment | ||||||||
| Revenue from investment in JV | ( | ) | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | ( | ) | ||||||
| Retirement liabilities | ||||||||
| Accounts payable | ||||||||
| Deferred revenue | ( | ) | ||||||
| Contract overbilling | ( | ) | ||||||
| Other operating assets and liabilities | ( | ) | ||||||
| NET CASH PROVIDED BY OPERATING ACTIVITIES | $ | $ | ||||||
SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
| • | Common stock issued to certain members of the Company’s management totaled $ |
| • | During the year ended December 31, 2025, the Company entered into new operating and financing lease agreements resulting in the recognition of Right-of-Use assets and corresponding lease liabilities of approximately $ |
| • | The Company had $ |
| • | The Company's financed certain insurance premiums of $ |
See Notes to Consolidated Financial Statements.
MAUI LAND & PINEAPPLE COMPANY, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Years Ended December 31, 2025 and 2024
| 1. | DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES |
DESCRIPTION OF BUSINESS
Maui Land & Pineapple Company, Inc. is a Delaware corporation and the successor to a business organized in 1909 as a Hawaii corporation. The Company reincorporated from Hawaii to Delaware pursuant to a plan of conversion completed on July 18, 2022. Total authorized capital stock of the Company includes
| Land Development and Sales: | Our real estate operations consist of land planning and entitlement, development, and sales activities. | |
| Leasing: | Our leasing operations include commercial, agricultural, and industrial land and property leases, licensing of our registered trademarks and trade names, management of potable and non-potable water systems in West and Upcountry Maui, and stewardship of conservation areas. | |
| Resort Amenities: | The resort amenities operations include the operations of the Kapalua Club, a private, non-equity club program, providing its members special programs, access, and other privileges at certain amenities at the Kapalua Resort. |
BASIS OF ACCOUNTING AND CONSOLIDATION
The accompanying consolidated financial statements of the Company are presented in conformity with generally accepted accounting principles in the United States of America (“GAAP”) as codified by the Financial Accounting Standards Board (“FASB”). The consolidated financial statements include the accounts of Maui Land & Pineapple Company, Inc. and its subsidiaries. All significant intercompany balances and transactions have been eliminated in consolidation.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents include cash on hand, deposits in banks, and money market funds.
ACCOUNTS RECEIVABLE AND ALLOWANCE FOR CREDIT LOSSES
Receivables are recorded net of an allowance for credit losses. The Company estimates expected credit losses over the contractual life of the receivables based on delinquencies, credit ratings, aging trends, and historical experience. The Company believes the allowance for credit losses is adequate to cover anticipated losses; however, significant deterioration in any of the aforementioned factors or in general economic conditions could change these expectations, and accordingly, the Company’s consolidated financial condition and/or its future operating results could be materially impacted. Credit is extended after evaluating creditworthiness and no collateral is generally required from customers.
INVESTMENT IN BOND SECURITIES
Held-to-maturity debt securities are stated at amortized cost. Investments are reviewed for impairment for each reporting period. If any impairment is considered other-than-temporary, an allowance for credit losses would be established and held-to-maturity debt securities would be presented net of the allowance for credit losses. Adjustments to expected credit losses are recorded as a component of other income (expense).
ASSETS HELD FOR SALE
Assets are classified as held for sale when management approves and commits to a plan to sell the property; the property is available for immediate sale in its present condition, subject only to terms that are usual and customary; an active program to locate a buyer and other actions required to complete the plan to sell have been initiated; the sale of the property is probable and is expected to be completed within one year; the property is being actively marketed for sale at a price that is reasonable in relation to its current fair value; and actions necessary to complete the plan of sale indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Assets held for sale are stated at the lower of net book value or estimated fair value less cost to sell. There were
DEFERRED DEVELOPMENT COSTS
Deferred development costs consist primarily of design, entitlement and permitting fees and real estate development costs related to various planned projects. Deferred development costs are written off if management decides that it is no longer probable that the Company will proceed with the related development project. There were
DEFERRED DEVELOPMENT COSTS – AGAVE VENTURE
Deferred development costs - Agave venture represents costs expended on the Company's new Agave venture and capitalized in accordance with ASC-360. The amounts capitalized at December 31, 2025 and 2024, were $
INVESTMENT IN JOINT VENTURES
Investments in joint ventures in which we have less than a controlling financial interest are accounted for under the equity method of accounting. The initial capital contribution of assets to a joint venture is recorded at fair value.
PROPERTY & EQUIPMENT AND DEPRECIATION
Property is stated at cost. Major replacements, renewals and betterments are capitalized while maintenance and repairs that do not improve or extend the life of an asset are charged to expense as incurred. When property is retired or otherwise disposed of, the cost of the property and the related accumulated depreciation are written off and the resulting gains or losses are included in income. Depreciation is provided over the estimated useful lives of the respective assets using the straight-line method generally over to
LONG-LIVED ASSETS
Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. When such events or changes occur, an estimate of the future undiscounted cash flows expected to result from the use of the assets and their eventual disposition is made. If the sum of such expected future cash flows (undiscounted and without interest charges) is less than the carrying amount of the asset, an impairment loss is recognized in an amount by which the assets’ net book values exceed their fair value. These asset impairment loss analyses require management to make assumptions and apply considerable judgments regarding, among others, estimates of the timing and amount of future cash flows, expected useful lives of the assets, uncertainty about future events, including changes in economic conditions, changes in operating performance, changes in the use of the assets, and ongoing cost of maintenance and improvements of the assets, and thus, the accounting estimates may change from period to period. If management uses different assumptions or if different conditions occur in future periods, the Company’s consolidated financial condition or its future operating results could be materially impacted.
There was
LEASES – THE COMPANY AS LESSEE
Company determines whether an arrangement is a lease at inception by considering whether that arrangement conveys the right to use an identified asset for a period of time in exchange for consideration. The Company evaluates whether a lease is a finance or operating lease using the criteria established in ASC Topic 842, Leases. Right-of-use assets (ROU assets) and lease liabilities related to leases are included in lease right-of-use assets and lease liabilities, respectively, in the Company's consolidated balance sheets. Operating lease expense is recognized on a straight-line basis over the lease term. Finance lease ROU assets are amortized on a straight-line basis over the shorter of the useful life of the asset or the lease term or using the useful life of the asset if the financing lease contains a purchase option that is reasonably certain to be exercised. Interest expense on the finance lease liability is recognized using the effective interest rate method and is presented within Interest expense in the Company’s consolidated statements of operations.
ROU assets represent the Company's right to use an underlying asset for the lease term and lease liabilities represent the obligation to make lease payments arising from the lease. ROU assets and lease liabilities are recognized at commencement date based on the present value of lease payments over the lease term. As most of the Company's leases do not provide an implicit rate and are not readily determinable, the Company uses its incremental borrowing rate based on the estimated rate of interest for collateralized borrowing over a similar term of the lease payments at commencement date. ROU assets also include any lease payments made at or before the commencement date and excludes any lease incentives received. Lease terms may include options to extend or terminate the lease when it is reasonably certain that the Company will exercise that option.
In connection with its application of the lease guidance, the Company has evaluated the lease and non-lease components within its leases where it is the lessee and has elected, for all classes of underling assets, the practical expedient to present lease and non-lease components in its lease agreements as one component. The Company has also elected, for all classes of underlying assets, to not recognize lease liabilities and lease assets for leases with a term of 12 months or less.
ACCRUED RETIREMENT BENEFITS
The Company’s policy is to fund retirement benefit costs at a level at least equal to the minimum funding requirements under federal law, but not more than the maximum amount deductible for federal income tax purposes.
The funded status of the Company’s defined benefit pension plan is recorded as an asset or liability in the consolidated balance sheet reflecting the difference between the fair value of plan assets and the projected benefit obligation. Changes in the funded status of the plan are recorded in the year in which the changes occur, through comprehensive income.
Deferred compensation plans for certain former management employees provide for specified payments after retirement. A liability has been recognized based on the present value of estimated payments to be made.
REVENUE RECOGNITION
The Company recognizes revenue to represent the transfer of goods and services to customers in an amount that reflects the consideration to which the Company expects to be entitled in such exchange. This requires the Company to identify contractual performance obligations and determine whether revenue should be recognized at a point in time or over time, based on when control of goods and services transfers to a customer. Operating results pertaining to the Company’s business segments are summarized in Note 13 to the consolidated financial statements.
A customer is distinguished from a noncustomer by the nature of the goods or services that are transferred. Customers are provided with goods or services that are generated by a company’s ordinary output activities, whereas noncustomers are provided with nonfinancial assets that are outside of a company’s ordinary output activities. This distinction may not significantly change the pattern of income recognition but determines whether that income is classified as revenue (contracts with customers) or other gains/losses (contracts with noncustomers) in the Company’s consolidated financial statements. The Company’s revenue streams for the period were generated as ordinary output activities to customers as defined by the guidance and were properly classified as revenues.
The Company uses the five-step model to recognize revenue from customer contracts. The five-step model requires the Company to (i) identify the contract with the customer, (ii) identify the performance obligations in the contract, (iii) determine the transaction price, including variable consideration to the extent that it is probable that a significant future reversal will not occur, (iv) allocate the transaction price to the respective performance obligations in the contract, and (v) recognize revenue when (or as) the Company satisfies the performance obligation.
For each contract that involves variable consideration, the transaction price of the contract is considered the most likely outcome in estimating possible consideration amounts. The information used to determine the transaction price is similar to the information used in establishing prices of goods or services.
The Company is also required to determine if it controls the goods or services prior to the transfer to the customer in order to determine if it should account for the arrangement as a principal or agent. Principal arrangements, where the Company controls the goods or services provided, will result in the recognition of the gross amount of consideration expected in the exchange. Agent arrangements, where the Company simply arranges but does not control the goods or services being transferred to the customer, will result in the recognition of the net amount the Company is entitled to retain in the exchange.
Revenues from the Company’s land development and sales segment consist of sales of real estate. Revenues from sales of real estate are recognized in the period in which sufficient cash has been received, collection of the balance is reasonably assured, performance obligations have been performed and risks of ownership have passed to the buyer.
Sales of real estate assets that are considered central to the Company’s ongoing major operations are classified as real estate sales revenue, along with any associated cost of sales, in the Company’s consolidated statements of operations and comprehensive income (loss). Sales of real estate assets that are considered peripheral or incidental transactions to the Company’s ongoing major or central operations are reflected as net gains or losses in the Company’s consolidated statements of operations and comprehensive income (loss).
The construction contract for the Honokeana Homes Temporary Housing Project follows the cost to cost accounting method. Contracting revenues and expenses are proportionately recognized based on actual costs incurred in relation to reliable and updated estimates of the cost to complete the project. Project billings in excess of recognized revenues are recorded as Billings in Excess of Revenues (a deferred revenue account) project costs in excess of project billings are recorded as Costs in Excess of Billings (a deferred expense account).
Leasing revenues are recognized on a straight-line basis over the terms of the leases. Lease income may include certain percentage rents determined in accordance with the terms of the leases. Lease income arising from rents that are contingent upon the sales of the tenant exceeding a defined threshold are recognized only after the defined sales thresholds are achieved. Reimbursements received for real estate taxes, general excise taxes, insurance and common area maintenance expenses are recognized as revenue as provided in the underlying lease terms.
The Company elected the following practical expedients upon adoption of Accounting Standards Codification, Leases (Topic 842) (ASC Topic 842) on January 1, 2019:
| ● | Single component practical expedient – requires the Company to account for lease and non-lease components associated with that lease, if certain criteria are met. |
| ● | Short-term leases practical expedient – for operating leases with a term of 12 months or less in which the Company is the lessee, this expedient allows the Company to not record on its balance sheets the related lease liabilities, taxes collected from lessees, lessor costs paid directly by lessee to a third party and right-of-use assets. |
Included in leasing revenues are grants issued by the State of Hawai‘i to subsidize the conservation and preservation efforts of the Pu‘u Kukui Watershed Preserve (“PKW”). The PKW is approximately
Revenue from resort amenities consist of annual dues received from the Kapalua Club membership program. Member services include access, special programs, and other privileges at certain of the amenities at the Kapalua Resort. Annual membership dues are recognized on a straight-line basis over one year. Performance obligations for services are satisfied by relying on information received from the Company’s employees and vendors who have rendered services in accordance with the terms and conditions of the membership program.
The Company estimates expected credit losses on accounts receivable from customers by considering relevant information (past, current, and future) in assessing the collectability of cash flows. The expected credit losses of the Company’s accounts receivable are summarized in Note 14 to the consolidated financial statements.
Economic factors affecting the nature, amount, timing, and uncertainty of the Company’s revenue and cash flows are identified as Risks and Uncertainties in this Note 1.
OPERATING COSTS AND EXPENSES
Land development and sales, leasing, resort amenities, and general and administrative costs and expenses are reflected exclusive of depreciation and pension and other post-retirement expenses.
RECLASSIFICATION OF PRIOR YEAR PRESENTATION
Certain prior year amounts have been reclassified for consistency with the current year presentation. These reclassifications had no effect on the reported results of operations.
SHARE-BASED COMPENSATION PLANS
The Company accounts for share-based compensation, including grants of restricted shares of common stock and options to purchase common shares, as compensation expense over the respective vesting periods in the consolidated financial statements based on their fair values on the grant dates. The impact of forfeitures that may occur prior to vesting is estimated and considered in the expense recognized.
INCOME TAXES
The Company accounts for uncertain tax positions using a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return.
The Company’s provision for income taxes is calculated using the liability method. Deferred income taxes are provided for all temporary differences between the financial statement and income tax bases of assets and liabilities using tax rates enacted by law or regulation. A valuation allowance is established for deferred income tax assets if management believes that it is more likely than not that some portion or all of the asset will not be realized through future taxable income.
The Company recognizes accrued interest related to unrecognized tax benefits as interest expense and penalties in general and administrative expenses in its consolidated statements of operations and comprehensive income (loss) and such amounts are included in income taxes payable on the Company’s consolidated balance sheets.
COMPREHENSIVE INCOME (LOSS)
Comprehensive income (loss) includes all changes in stockholders’ equity, except those resulting from capital stock transactions. Comprehensive income (loss) also includes adjustments to the Company’s defined benefit pension plan obligations.
INCOME (LOSS) PER COMMON SHARE
Basic net income (loss) per common share is computed by dividing net income (loss) by the weighted-average number of common shares outstanding. Diluted net income per common share is computed similar to basic net income (loss) per common share except that the denominator is increased to include the number of additional common shares that would have been outstanding if dilutive potential common shares from share-based compensation arrangements had been issued. Potentially dilutive shares from stock option grants to purchase common shares and non-vested restricted stock are determined using the treasury stock method. Basic and diluted weighted-average common shares outstanding at December 31, 2025 and 2024 were
FAIR VALUE MEASUREMENTS
GAAP establishes a framework for measuring fair value and requires certain disclosures about fair value measurements to enable the reader of the consolidated financial statements to assess the inputs used to develop those measurements by establishing a hierarchy for ranking the quality and reliability of the information used to determine fair values. GAAP requires that financial assets and liabilities be classified and disclosed in one of the following three categories:
Level 1: Quoted market prices in active markets for identical assets or liabilities.
Level 2: Observable market-based inputs or unobservable inputs that are corroborated by market data.
Level 3: Unobservable inputs that are not corroborated by market data.
The Company considers cash and cash equivalents to be unrestricted for purposes of the consolidated balance sheets and consolidated statements of cash flows. The fair value of receivables and payables approximate their carrying value due to the short-term nature of the instruments. The valuation is based on settlements of similar financial instruments all of which are short-term in nature and are generally settled at or near cost.
USE OF ESTIMATES
The preparation of consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. Future actual amounts could differ from these estimates.
CONCENTRATION OF CREDIT RISK
Financial instruments that potentially subject the Company to concentration of credit risk consist principally of cash deposits. Accounts at each institution are insured by the Federal Deposit Insurance Corporation (“FDIC”) up to $250,000 per institution. The Company had deposits in excess of the FDIC limit at December 31, 2025 and 2024. No losses have been recognized in 2025 or 2024.
RISKS AND UNCERTAINTIES
Factors that could adversely impact the Company’s future operations or financial results include, but are not limited to the following: periods of economic weakness and uncertainty in Hawai‘i and the mainland United States; high unemployment rates and low consumer confidence; uncertainties and changes in U.S. social, political, regulatory and economic conditions or laws and policies and concerns surrounding ongoing developments in the European Union, Middle East, and Asia; the general availability of mortgage financing, including the effect of more stringent lending standards for mortgages and perceived or actual changes in interest rates; risks related to the Company’s investments in real property, the value and salability of which could be impacted by the economic factors discussed above or other factors; the popularity of Maui in particular and Hawai‘i in general as a vacation destination or second-home market; increased energy costs, including fuel costs, which affect tourism on Maui and Hawai‘i generally; untimely completion of land development projects within forecasted time and budget expectations; inability to obtain land use entitlements at a reasonable cost or in a timely manner; unfavorable legislative decisions by state and local governmental agencies; impact of governmental fines and assessments; the cyclical market demand for luxury real estate on Maui and in Hawai‘i generally; increased competition from other luxury real estate developers on Maui and in Hawai‘i generally; failure of future joint venture partners to perform in accordance with their contractual agreements; environmental regulations; acts of God, such as tsunamis, hurricanes, earthquakes and other natural disasters, such as the 2023 Maui wildfires; the spread of contagious diseases, such as COVID-19; the Company’s location apart from the mainland United States, which results in the Company’s financial performance being more sensitive to the aforementioned economic risks; failure to comply with restrictive financial covenants in the Company’s credit arrangements; and an inability to achieve the Company’s short and long-term goals and cash flow requirements.
LEGAL CONTINGENCIES
The Company is party to claims and lawsuits as well as threatened or potential actions or claims concerning matters arising from the conduct of its business activities. The outcome of claims or litigation and the timing of ultimate resolution are inherently difficult to predict and significant judgment may be required in the determination of both the probability of loss and whether the amount of the loss is reasonably estimable. The Company’s estimates are subjective and are based on the status of legal and regulatory proceedings, the merit of the Company’s defenses and consultation with external legal counsel. An accrual for a potential litigation loss is established when information related to the loss contingency indicates both that a loss is probable and that the amount of loss can be reasonably estimated. Refer to Note 9 to the consolidated financial statements for further information regarding the Company’s legal proceedings.
NEW ACCOUNTING STANDARDS ADOPTED
In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740), which requires public entities to provide disclosure of specific categories in the rate reconciliation, as well as disclosure of income taxes paid disaggregated by jurisdiction on an annual basis. ASU 2023-09 is effective for fiscal years beginning after December 15, 2024, with early adoption permitted. The Company adopted ASU 2023-09 propectively during the current year.
NEW ACCOUNTING STANDARDS ISSUED
In November 2024, the FASB issued ASU 2024-03, Income Statement - Reporting Comprehensive Income - Expense Disaggregation Disclosures (Topic 220), which requires public entities to disclose information about purchases of inventory, employee compensation, depreciation, intangible asset amortization, and depletion for each income statement line item that contains those expenses. ASU 2024-03 is effective for fiscal years beginning after December 15, 2026 and interim periods within annual reporting periods beginning after December 15, 2027, with early adoption permitted. The Company is currently evaluating the impact of adopting ASU 2024-03.
| 2. | INVESTMENTS IN BOND SECURITIES |
Bond securities investments were liquidated during the year ended December 31, 2025.Amortized cost and fair value of debt securities at December 31, 2025 and 2024 consisted of the following:
| December 31, | December 31, | |||||||
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| Amortized cost | $ | $ | ||||||
| Unrealized gains | ||||||||
| Fair value | $ | $ | ||||||
Maturities of debt securities at December 31, 2025 and 2024 were as follows:
| December 31, 2025 | December 31, 2024 | |||||||||||||||
| (in thousands) | ||||||||||||||||
| Amortized Cost | Fair Value | Amortized Cost | Fair Value | |||||||||||||
| One year or less | $ | $ | $ | $ | ||||||||||||
| Greater than one year through five years | ||||||||||||||||
| $ | $ | $ | $ | |||||||||||||
The fair value of debt securities were measured using Level 1 inputs which are based on quotes for trades occurring in active markets for identical assets.
| 3. | ASSETS HELD FOR SALE |
Assets held for sale consist of non-strategic land parcels identified for sale at December 31, 2025. There are fourteen parcels that carry a historical cost basis of approximately $
| 4. | PROPERTY & EQUIPMENT |
Property and equipment at December 31, 2025 and 2024 consist of the following:
| December 31, | December 31, | |||||||
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| Land | $ | $ | ||||||
| Land improvements | ||||||||
| Buildings | ||||||||
| Machinery and equipment | ||||||||
| Construction in progress | ||||||||
| Total property and equipment | ||||||||
| Less accumulated depreciation | ( | ) | ( | ) | ||||
| Property and equipment, net | $ | $ | ||||||
Land
Most of the Company’s
Land Improvements
Land improvements are comprised primarily of roads, utilities, and landscaping infrastructure improvements at the Kapalua Resort. Also included is the Company’s potable and non-potable water systems in West Maui. Majority of the Company’s land improvements were constructed and placed in service in the mid-to-late 1970s or conveyed in 2017. Depreciation expense would be considerably higher if these assets were stated at current replacement cost.
Buildings
Buildings are comprised of restaurant, retail and light industrial spaces located at the Kapalua Resort and Hali’imaile which are used in the Company’s leasing operations. Most of the Company’s buildings were constructed and placed in service in the mid-to-late 1970s. Depreciation expense would be considerably higher if these assets were stated at current replacement cost.
Machinery and Equipment
Machinery and equipment are mainly comprised of zipline course equipment installed in 2008 at the Kapalua Resort and used in the Company’s leasing operations and various rolling stock and off road equipment used in our land management and Agave farming operations.
Construction in Progress
Construction in progress is comprised of ongoing Kapalua Resort and Hal‘iimaile projects, including renovations and improvements to buildings, warehouses and commercial assets.
| 5. | INVESTMENT IN UNCONSOLIDATED JOINT VENTURE |
In December 2023, the Company entered into a joint venture agreement with a local developer to form a Hawai‘i limited liability company ("BRE2 LLC"). The Company's initial capital contribution to BRE2 LLC consisted of approximately
| 6. | LONG-TERM DEBT |
On December 22, 2025, the Company executed a Sixth Loan Modification Agreement and Third Amended and Restated Credit Agreement (“Agreements”) increasing the credit limit to $
At December 31, 2025, $
The terms of the Credit Facility include various representations, warranties, affirmative, negative and financial covenants and events of default customary for financings of this type. Financial covenants include a minimum liquidity (as defined) of $
The Company was in compliance with the covenants under the Credit Facility as of December 31, 2025.
In July 2024 the Company took out a loan to finance equipment purchases. The loan carried a principal amount of $
At December 31, 2025, long-term debt principal payments and imputed interest on this loan for the next years to maturity are as follows:
| Years ending December 31, in thousands | ||||
| 2026 | ||||
| 2027 | ||||
| 2028 | ||||
The Company financed insurance premiums of approximately $
| 7. | ACCRUED RETIREMENT BENEFITS |
Accrued retirement benefits at December 31, 2025 and 2024 consisted of the following:
| December 31, | December 31, | |||||||
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| Defined benefit pension plan | $ | $ | ||||||
| Non-qualified retirement plans | ||||||||
| Total | ||||||||
| Less current portion | ( | ) | ( | ) | ||||
| Non-current portion of accrued retirement benefits | $ | $ | ||||||
The Company had two defined benefit pension plans which covered substantially all former bargaining and non-bargaining full-time, part-time and intermittent employees. In 2011, pension benefits under both plans were frozen. In 2018, the Company merged the two defined benefit pension plans (the “Defined Plan”) to streamline the administration of the frozen plan in. The Company also has an unfunded non-qualified retirement plan (the”Non-qualified Plan”) covering nine of its former employees. The Non-qualified plan was frozen in 2009 and future vesting of additional benefits was discontinued. The Board of Directors (the “Board”) approved the termination of the Defined Plan and the Non-qualified Plan in 2023. The benefits paid from of the plan towards the final annuitization and plan termination was $
The measurement date for the Company’s benefit plan disclosures is December 31 of each year. The changes in benefit obligations and plan assets for the years ended December 31, 2025 and 2024, and the funded status of the plans and assumptions used to determine benefit information at December 31, 2025 and 2024 were as follows:
| Years Ended December 31, | ||||||||||
| 2025 | 2024 | |||||||||
| (in thousands) | ||||||||||
| Change in benefit obligations: | ||||||||||
| Benefit obligations at beginning of year | $ | $ | ||||||||
|
| ||||||||||
| Actuarial gain | ( | ) | ( | ) | ||||||
| Benefits paid | ( | ) | ( | ) | ||||||
| Benefit obligations at end of year | ||||||||||
| Change in plan assets: | - | |||||||||
| Fair value of plan assets at beginning of year | ||||||||||
| Actual return on plan assets | ( | ) | ( | ) | ||||||
| Employer contributions | ||||||||||
| Asset transfers | ( | ) | ||||||||
| Benefits paid | ( | ) | ( | ) | ||||||
| Fair value of plan assets at end of year | ||||||||||
| Funded status | $ | ( | ) | $ | ( | ) | ||||
| Accumulated benefit obligations | $ | ( | ) | $ | ( | ) | ||||
| Weighted average assumptions to determine benefit obligations: | ||||||||||
| Discount rate | % | - | % | |||||||
| Expected long-term return on plan assets | n/a | % | ||||||||
| Rate of compensation increase | n/a | n/a | ||||||||
Components of net periodic benefit cost and other amounts recognized in comprehensive income were as follows:
| Years Ended December 31, | ||||||||
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| Pensions and other benefits: | ||||||||
| Interest cost | $ | $ | ||||||
| Expected return on plan assets | ( | ) | ( | ) | ||||
| Amortization of net loss | ||||||||
| Settlement expense | ||||||||
| Pension and other postretirement expenses | $ | $ | ||||||
| Other changes in plan assets and benefits obligations recognized in comprehensive income: | ||||||||
| Net loss (gain) | $ | |||||||
| Amortization of recognized loss | ( | ) | ( | ) | ||||
| Total recognized gain in comprehensive income | $ | ( | ) | $ | ( | ) | ||
Weighted average assumptions used to determine net periodic benefit cost:
| 2025 | 2024 | |||||||||
| Discount rate | - | |||||||||
| Expected long-term return on plan assets | n/a | 5.40% | ||||||||
| Rate of compensation increase | n/a | n/a | ||||||||
Weighted average assumptions used to determine net periodic benefit cost:
| 2025 | 2024 | |||||||||
| Discount rate | - | |||||||||
| Expected long-term return on plan assets | n/a | 5.40% | ||||||||
| Rate of compensation increase | n/a | n/a | ||||||||
The expected long-term rate of return on plan assets was based on a building-block approach. Historical markets are studied and long-term historical relationships between equities and fixed income are presumed consistent with the widely accepted capital market principle that assets with higher volatility generate a greater return over the long run. Current market factors, such as inflation and interest rates, are evaluated before long-term capital markets are determined. Diversification and rebalancing of plan assets are properly considered as part of establishing long-term portfolio returns. As a result of the termination of the Defined Plan and the Non-qualified Plan in 2025, we did have any plan assets at December 31, 2025.
At December 31, 2024, the Defined Plan held shares of various Aon Collective Investment Trust (“ACIT”) funds. At December 31, 2025 the plan assets were $
| 2024 Fair Value Measurements | ||||||||||||||||
| ( in thousands) | ||||||||||||||||
| Quoted Prices in Active Markets for Identical Assets (Level 1) | Significant Other Observable nputs (Level 2) | Measured at NAC as a practical expedient | Total | |||||||||||||
| ACIT equity funds | $ | $ | $ | $ | ||||||||||||
| ACIT fixed income funds | ||||||||||||||||
| Cash management funds | ||||||||||||||||
| $ | $ | $ | $ | |||||||||||||
Level 1 assets are priced using quotes for trades occurring in active markets for the identical asset. Level 2 assets are priced using observable inputs for the asset (for example, interest rates and yield curves observable at commonly quoted intervals, volatilities, prepayment speeds, loss severities, credit risks, and default rates) or inputs that are derived principally from or corroborated by observable market data by correlation or other means (market-corroborated inputs). Net asset values (“NAV”) of ACIT funds included in Level 2 are readily determinable, measured daily and based on the fair value of each fund’s underlying investments. For certain ACIT funds, NAV is used as a practical expedient to estimate fair value and is not categorized in the fair value hierarchy. These funds determine NAV based on the fair value of its underlying investments on a monthly or quarterly basis and have redemption restrictions. Redemptions may be requested at the fund’s quarter-end NAV under the notification requirements of each fund, including a
An administrative committee consisting of certain senior management employees administers the Company’s Defined Plan. The pension plan assets are allocated among approved asset types based on the plan’s current funded status and other characteristics set by the administrative committee, subject to liquidity requirements of the Defined Plan.
Estimated future benefit payments are as follows (in thousands):
| Years ending December 31, | ||||
| 2026 | $ | |||
| 2027 | ||||
| 2028 | ||||
| 2029 | ||||
| 2030 | ||||
Plan cash contributions in the amount of $
A settlement expense in the amount of $
| 8. | CONTRACT ASSETS AND LIABILITIES |
Receivables from contracts with customers were $
Deferred license fee revenue
The Company entered into a trademark license agreement with the owner of the Kapalua Plantation and Bay golf courses, effective April 1, 2020. Under the terms and conditions set forth in the agreement, the licensee is granted a perpetual, terminable on default, transferable, non-exclusive license to use the Company’s trademarks and service marks to promote its golf courses and to sell its licensed products. The Company received a single payment royalty of $
| 9. | COMMITMENTS AND CONTINGENCIES |
DOH Order
On December 31, 2018, the State of Hawai‘i Department of Health (“DOH”) issued a Notice and Finding of Violation and Order (“Order”) for alleged wastewater effluent violations related to our Upcountry Maui wastewater treatment facility. The facility was built in the 1960’s to serve approximately 200 single-family homes developed for workers in our former agricultural operations. The facility is made up of two 1.5-acre wastewater stabilization ponds and surrounding disposal leach fields. The Order includes, among other requirements, payment of a $
The DOH agreed to defer the Order while we implement an approved corrective action plan to address the facility’s wastewater effluent issues. The construction of additional leach fields and installations of a surface aerator, sludge removal system, and natural pond cover using water plants were completed. Test results from wastewater monitoring indicate effluent concentration amounts within allowable ranges. A feasibility study was prepared and submitted identifying various technical solutions that could be implemented to resolve the Order. We submitted a plan and proposed solution to resolve the Order. The plan included the installation of an additional pond that will be lined and installed with aerators. One of the existing ponds will be lined and renovated as necessary and the other pond will be taken offline and used as a backup pond if needed. The Company continues to make progress with the DOH and was, as of the date of this Annual Report, awaiting approval of submitted engineering and design drawings from the State of Hawai‘i.
We have accrued approximately $
Maui County Water Filtration Settlement
Pursuant to a 1999 settlement agreement with the County of Maui, the Company and several chemical manufacturers agreed to pay for 90% of capital costs to install filtration systems in any future water wells if the presence of a nematicide, commonly known as DBCP, exceeds specified levels, and for the ongoing maintenance and operating cost for filtration systems on existing and future wells. The Company paid approximately $
Honokohau Stream Irrigation Water Dispute
On August 18, 2025, TY Management Corporation, which owns two golf courses (The Kapalua Plantation Golf Course and the Kapalua Bay Golf Course), the Plantation Estates Lot Owners Association (“PELOA”), the Association of Apartment Owners of the Coconut Grove on Kapalua, and the Association of Apartment Owners of the Ride at Kapalua (three owner associations located within the Kapalua Resort Association (“KRA”)), and Hui Momona Farms LLC, a Hawaii-based company that is a member of PELOA (collectively, the “Plaintiffs”), filed a complaint against the Company in the Circuit Court of the Second Circuit, State of Hawaii. The complaint alleged the Company failed to provide irrigation water from Honokohau Stream due to an alleged failure to maintain the ditch system that transports water from the stream. The complaint seeks declaratory and injunctive relief and unspecified monetary damages. The Company's insurance carrier accepted the claim and tendered defense on behalf of the Company.
In September 2025, the Company responded to the complaint and asserted counterclaims, including claims based on, alleged violations by Plaintiffs of irrigation-use restrictions intended to protect public trust purposes and fire protection for the entire Kapalua community as well as claims relating to alleged defamatory statements. At the time of filing this Annual Report, Company cannot reasonably estimate the possible loss or range of loss, or recovery from the counterclaim, if any, associated with this matter. The Company intends to defend against the claims and to prosecute its counterclaims.
Since 2019, the availability of divertible water from Honokohau Stream has been reduced under Hawai’i state law. In addition, the stream has experienced record low flows associated with historic drought conditions impacting the island of Maui. At its September 2025 meeting, the Commission on Water Resource Management, the state agency responsible for administering the state water code, reported that rainfall contributes to runoff and baseflow to streams, and that for the period between September 2024 and August 2025, annual rainfall in Honokohau Valley was 46% of normal. As a result of reduced rainfall and Hawaii state law public trust uses, including drinking water and traditional practices, there has been less water available for private commercial irrigation
KRA Annexations
In 2024 and 2025, the Company, as the developer of Kapalua and member of the KRA, annexed certain lands into Kapalua in accordance with procedures set forth in the KRA’s governing declaration. KRA's records reflect the annexed lands are part of Kapalua.
On September 25, 2025, TY Management Corporation and derivatively on behalf of KRA, filed a lawsuit in the Circuit Court of the Second Circuit, State of Hawai‘i, against certain directors of KRA and the Company as declarant of KRA, alleging that the annexations and related voting rights are invalid. As a result of the disputes regarding the annexations and related voting rights, KRA’s annual meeting had not been held as of the date of this Annual Report, as required to be held by Hawaii statutes.
On October 10, 2025, the Company, as a member of KRA and developer of Kapalua, petitioned the Second Circuit Court, State of Hawai‘i, to set the annual meeting.
At the time of filing this Annual Report, the financial impact to the Company, if any, cannot be determined or estimated. KRA is responsible for the defense of the directors named in the claim. The Company will intend to defend against claims.
In addition, from time to time, the Company is a party various legal proceedings, disputes, and other claims arising in the ordinary course of business. The Company believes the resolution of these other matters, in the aggregate, is not likely to have a material adverse effect on the Company’s consolidated financial position or operations.
| 10. | LEASING ARRANGEMENTS |
The Company leases land primarily to agriculture operators and space in commercial buildings, primarily to restaurant and retail tenants through 2048. These operating leases generally provide for minimum rents, licensing fees, percentage rentals based on tenant revenues, and reimbursement of common area maintenance and other expenses. Certain leases allow the lessee an option to extend or terminate the lease agreement. There are no agreements allowing a lessee an option to purchase the underlying asset. Total leasing income subject to ASC Topic 842 for the years ended December 31, 2025 and 2024 were as follows:
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| Minimum rentals | $ | $ | ||||||
| Percentage rentals | ||||||||
| Licensing fees | ||||||||
| Other | ||||||||
| Total | $ | $ | ||||||
Leased property, net of accumulated depreciation, was $
Future minimum rental income for the next five years and thereafter are as follows (in thousands):
| 2026 | $ | |||
| 2027 | ||||
| 2028 | ||||
| 2029 | ||||
| 2030 | ||||
| Thereafter |
| 11. | SHARE-BASED COMPENSATION |
The Company’s directors and certain members of management receive a portion of their compensation in shares of the Company’s common stock granted under the Company’s 2017 Equity and Incentive Award Plan, as amended (the “Equity Plan”).
Share-based compensation is awarded annually to certain members of the Company’s management based on their achievement of predefined performance goals and objectives under the Equity Plan. Their share-based compensation is comprised of an annual incentive paid in shares of common stock and a long-term incentive paid in restricted shares of common stock vesting quarterly over a period of years. Share-based compensation is valued based on the average of the high and low share price on the date of grant. Shares are issued upon execution of agreements reflecting the grantee’s acceptance of the respective shares subject to the terms and conditions of the Equity Plan. Restricted shares issued under the Equity Plan have voting and regular dividend rights but cannot be disposed of until such time as they are vested. All unvested restricted shares are forfeited upon the grantee’s termination of directorship or employment from the Company.
Directors receive both cash and share-based compensation under the Equity Plan. Their share-based compensation is comprised of restricted shares of common stock vesting quarterly over the directors’ annual period of service which are valued based on the average of the high and low share price on the date of grant. Shares are issued upon execution of agreements reflecting the grantee’s acceptance of the respective shares subject to the terms and conditions of the Equity Plan. Restricted shares issued under the Equity Plan have voting and regular dividend rights but cannot be disposed of until such time as they are vested. All unvested restricted shares are forfeited upon the grantee’s termination of directorship or employment from the Company.
Options to purchase shares of the Company’s common stock under the Equity Plan were granted to directors and the Chief Executive Officer in 2024 and 2023. Stock option grants are valued at the commitment date, based on the fair value of the equity instruments, and recognized as share-based compensation expense on a straight-line basis over its respective vesting periods. The option agreements provide for accelerated vesting if there is a change in control in ownership.
The number of common shares subject to options granted in 2023 for annual board service, board committee service, and continued service of the Chairperson of the Board are
For continued board service of the Chairperson, the stock option grant has a contractual period of years which vests as follows:
An option to purchase
The number of common shares subject to options granted in 2024 for annual board service and board committee service were
The simplified method described in Staff Accounting Bulletin No. 107 was used by management due to the lack of historical option exercise behavior. The Company does not currently issue dividends. There were forfeitures of stock option grants as of December 31, 2025. Management does not anticipate future forfeitures to be material.
Share-based compensation expenses totaled $
On August 5, 2024, R. Scot Sellers, a director and Chairperson of the Board, Steve Case, a director, and Race A. Randle, Chief Executive Officer, voluntarily executed agreements to cancel previously granted stock options and common stock grants. The Equity Plan was amended in February 2023 to increase the limit on the number of shares to be awarded during a plan year to
| 12. | INCOME TAXES |
GAAP prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return.
The Company’s provision for income taxes is calculated using the liability method. Deferred income taxes are provided for all temporary differences between the financial statement and income tax bases of assets and liabilities using tax rates enacted by law or regulation.
Reconciliations between the total income tax expense (benefit) and the amount computed using the statutory federal rate of
| Year Ended December 31, | ||||||||
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| Federal income tax expense/(benefit) at statutory rate | ( | ) | ( | ) | ||||
| Adjusted for: | ||||||||
| Non-deductible items | ( | ) | ||||||
| Return to provision adjustments | ( | ) | ( | ) | ||||
| State and local income tax, net of federal income tax effect | ( | ) | ||||||
| Valuation Allowance | ( | ) | ||||||
| Income Tax expense/(benefit) | N/A | |||||||
Deferred tax assets were comprised of the following temporary differences as of December 31, 2025 and 2024:
| Year Ended December 31, | ||||||||
| 2025 | 2024 | |||||||
| Net operating loss and tax credit carryforwards | $ | $ | ||||||
| Joint Venture and other investments | ( | ) | ( | ) | ||||
| Accrued retirement benefits and other compensation | ||||||||
| Property net book value | ||||||||
| Deferred Revenue | ||||||||
| Reserves and other | ( | ) | ||||||
| Total Deferred Tax Assets | ||||||||
| Valuation Allowance | ( | ) | ( | ) | ||||
| Net deferred tax asset | ||||||||
Valuation allowances at December 31, 2025 and 2024 have been established to reduce future tax benefits not expected to be realized. Net Operating Loss (NOL) carryforwards created in tax years beginning after December 31, 2017 are limited by the TCJA but do not expire. At December 31, 2025, the Company had approximately $
The Company is subject to U.S. federal income tax as well as income tax in Hawaii. The Company is currently open to examination by taxing authorities for tax years ended after . The Company recognizes and reports interest and penalties related to unrecognized tax benefits if applicable, within the provision for income tax expense. The Company had
| 13. | SEGMENT INFORMATION |
The Company’s operating segments are comprised of the discrete business units whose operating results are regularly reviewed by the Company’s Chief Executive Officer, its chief operating decision maker, and the Board of Directors in assessing performance and determining the allocation of resources. Reportable operating segments in 2025 were as follows:
| • | Land development and sales operations consist of land planning and entitlement, development, development related construction, and sales of land assets. |
| • | Leasing primarily includes revenues and expenses from real property leasing activities, license fees and royalties for the use of certain of the Company’s trademarks and brand names by third parties, and the cost of maintaining the Company’s real estate assets, including conservation activities. The operating segment also includes the management of ditch, reservoir and well systems that provide potable and non-potable water to West and Upcountry Maui areas. |
| • | Resort Amenities include a membership program that provides certain benefits and privileges within the Kapalua Resort for its members. |
The Company’s reportable operating segment results were measured based on operating income, exclusive of interest, pension and other postretirement expenses.
Condensed consolidated financial information for each of the Company’s reportable segments for the years ended December 31, 2025 and 2024 (in thousands) were as follows:
| Land Development & Sales | Leasing | Resort Amenities | Other | Consolidated | ||||||||||||||||
| 2025 | ||||||||||||||||||||
| Operating revenues (1) | $ | $ | $ | $ | $ | |||||||||||||||
| Operating costs and expenses | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||||
| Depreciation expense | ( | ) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||
| General and administrative expenses | ( | ) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||
| Operating income (loss) | ( | ) | ( | ) | ( | ) | ||||||||||||||
| Pension and other postretirement expenses | ( | ) | ||||||||||||||||||
| Interest expense | ( | ) | ||||||||||||||||||
| Loss on asset disposal, net | ( | ) | ||||||||||||||||||
| Other income, net | ||||||||||||||||||||
| Income from continuing operations | ( | ) | ||||||||||||||||||
| Capital expenditures (2) | $ | $ | $ | $ | $ | |||||||||||||||
| Assets (3) | $ | $ | $ | $ | $ | |||||||||||||||
| (1) | Amounts are principally revenues from external customers and exclude equity in earnings of affiliates. |
| (2) | Includes expenditures for property and deferred costs. |
| (3) | Segment assets are located in the United States. |
| Land Development & Sales | Leasing | Resort Amenities | Other | Consolidated | ||||||||||||||||
| 2024 | ||||||||||||||||||||
| Operating revenues (1) | $ | $ | $ | $ | $ | |||||||||||||||
| Operating costs and expenses | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||||
| Depreciation expense | ( | ) | ( | ) | ( | ) | ||||||||||||||
| General and administrative expenses | ( | ) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||
| Operating income (loss) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||||
| Pension and other postretirement expenses | ( | ) | ||||||||||||||||||
| Interest expense | ( | ) | ||||||||||||||||||
| Loss on asset disposal, net | ||||||||||||||||||||
| Other income | ||||||||||||||||||||
| Income from continuing operations | ( | ) | ||||||||||||||||||
| Capital expenditures (2) | $ | $ | $ | $ | $ | |||||||||||||||
| Assets (3) | $ | (4) | $ | $ | $ | $ | ||||||||||||||
| (1) | Amounts are principally revenues from external customers and exclude equity in earnings of affiliates. |
| (2) | Includes expenditures for property and deferred costs. |
| (3) | Segment assets are located in the United States. |
| (4) | The Land Development and Sales segment includes a $ |
| 14. | ALLOWANCE FOR CREDIT LOSSES |
Allowance for credit losses for 2025 and 2024 were as follows:
| Description | Balance at Beginning of Year | Increase (Decrease) | Balance at End of Year | |||||||||
| (in thousands) | ||||||||||||
| Alowance for Credit Losses | ||||||||||||
| 2025 | $ | $ | ( | ) | $ | |||||||
| 2024 | $ | $ | ( | ) | $ | |||||||
| 15. | LONG TERM LEASES |
As of December 31, 2025, the company’s lease portfolio consists of operating leases (office equipment and vehicles) and finance lease (heavy equipment).
The following table summarized the classification of leases on the Balance Sheet as of December 31, 2025 and 2024:
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| Assets | ||||||||
|
| $ | $ | ||||||
|
| ||||||||
| Total Lease Assets | $ | $ | ||||||
| 2025 | 2024 | |||||||
| (in thousands) | ||||||||
| Liabilities | ||||||||
| Current | ||||||||
|
| $ | $ | ||||||
|
| ||||||||
| Total Lease Liabilities - Current | $ | $ | ||||||
| Non-Current | ||||||||
|
| ||||||||
|
| ||||||||
| Total Lease Liabilities - Non-Current | $ | $ | ||||||
The company used weighted-average discount rate of
The following table projects the undiscounted cash flows for lease liabilities over the remaining five years:
| Operating Leases | Finance Lease | |||||||
| 2026 | $ | $ | ||||||
| 2027 | ||||||||
| 2028 | ||||||||
| 2029 | ||||||||
| 2030 | ||||||||
| Total lease payments | ||||||||
| Less: imputed interest | ( | ) | ( | ) | ||||
| Total lease liability | $ | $ | ||||||
| 16. | SUBSEQUENT EVENT |
On January 28, 2026 (“Effective Date”), the Company entered into a Purchase Agreement and Escrow Instructions (“Purchase Agreement”) with Race A. Randle, the Chief Executive Officer of the Company (“Buyer”), pursuant to which the Company agreed to sell to Buyer a
| Item 9. |
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE |
None.
| Item 9A. |
CONTROLS AND PROCEDURES |
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
Our management, with the participation of our principal executive officer and principal financial officer, evaluated the effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of December 31, 2025. We maintain disclosure controls and procedures that are designed to provide reasonable assurance that information required to be disclosed in our reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that such information is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate, to allow for timely decisions regarding required disclosure. Our management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on the evaluation of our disclosure controls and procedures as of December 31, 2025, our principal executive officer, principal financial officer, and principal accounting officer concluded that, as of such date, our disclosure controls and procedures were effective.
MANAGEMENT’S ANNUAL REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
Our management has the responsibility for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act, as a process designed by, or under the supervision of, the Company’s principal executive, principal financial officer, principal accounting officer, and effected by our Board, management and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America. Our internal controls over financial reporting include those policies and procedures that:
| • |
Pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets; |
| • |
Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with accounting principles generally accepted in the United States of America, and that receipts and expenditures of the Company are being made only in accordance with authorizations of our management and directors; and |
| • |
Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on the financial statements. |
Because of its inherent limitations, internal control over financial reporting only provides reasonable assurance with respect to financial statement presentation and preparation. Projections of any evaluation of effectiveness to future periods are subject to the risks that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Our management, including our Chief Executive Officer and Chief Financial Officer, assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2024. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control—Integrated Framework (2013). Based on its assessments, management believes that, as of December 31, 2024, the Company’s internal control over financial reporting is effective.
As we are a smaller reporting company, our independent registered public accounting firm is not required to attest to the effectiveness of our internal control over financial reporting.
| Item 9B. | OTHER INFORMATION |
| Item 9C. |
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS |
Not applicable.
| Item 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
The information required under this item will be set forth in our proxy statement related to our Annual Meeting of Stockholders, which will be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2025, and is incorporated herein by reference.
| Item 11. | EXECUTIVE COMPENSATION |
The information required under this item will be set forth in our proxy statement related to our Annual Meeting of Stockholders, which will be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2025, and is incorporated herein by reference.
| Item 12. |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
The information required under this item will be set forth in our proxy statement related to our 2026 Annual Meeting of Stockholders, which will be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2025, and is incorporated herein by reference.
| Item 13. |
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
The information required under this item will be set forth in our proxy statement related to our 2026 Annual Meeting of Stockholders, which will be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2025, and is incorporated herein by reference.
| Item 14. |
PRINCIPAL ACCOUNTANT FEES AND SERVICES |
The information required under this item will be set forth in our proxy statement related to our 2026 Annual Meeting of Stockholders, which will be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2025, and is incorporated herein by reference.
| Item 15. |
EXHIBITS, FINANCIAL STATEMENT SCHEDULES |
a)
| 1. | Financial Statements. The following financial statements of Maui Land & Pineapple Company, Inc. and subsidiaries and Report of Independent Registered Public Accounting Firm are included in Item 8 of this Annual Report: |
| 2. |
Financial Statements schedules. Financial statement schedules are omitted because they are not applicable, or the required information is shown in the financial statements or notes thereto. |
| 3. |
Exhibits. The following is a list of exhibits filed as part of this Form 10-K. |
| Incorporated by Reference |
||||||
| Exhibit Number |
Exhibit Description |
Form |
File No. |
Exhibit |
Filing Date |
Filed Herewith |
| 2.1 |
8-K |
001-06510 |
2.1 |
7/20/2022 |
||
| 2.1 |
8-K |
001-06510 |
3.1 |
7/20/2022 |
||
| 3.1 |
Certificate of Incorporation of Maui Land & Pineapple Company, Inc. |
8-K |
001-06510 |
3.2 |
7/20/2022 |
|
| 3.2 |
8-K |
001-06510 |
3.3 |
7/20/2022 |
||
| 4.1 |
S-8 |
333-273009 |
4.1 |
6/28/2023 |
||
| 10.1# |
Maui Land & Pineapple Company, Inc. Executive Severance Plan |
10-Q |
001-06510 |
10.1 |
4/28/2017 |
|
| 10.2# |
Maui Land & Pineapple Company, Inc. 2017 Equity and Incentive Award Plan |
DEF 14A |
001-06510 |
Appendix A |
3/28/2017 |
|
| 10.3# |
Amendment to Maui Land & Pineapple Company, Inc. 2017 Equity and Incentive Award Plan |
DEF 14A |
001-06510 |
Appendix A |
3/31/2023 |
|
| 10.4 |
X |
|||||
| 10.5 |
Third Amended and Restated Credit Agreement, dated December 22, 2025 |
X |
||||
| 10.6 |
Third Amendment of Mortgage and Security Agreement, dated December 22, 2025 |
X |
||||
| 10.7# |
10-Q |
001-06510 |
10.1 |
8/18/2023 |
||
| 10.8# |
Form of Stock Option Grant to Directors for Board Service and Committee Service |
10-Q |
001-06510 |
10.2 |
8/18/2023 |
|
| 10.9# |
Form of Restricted Stock Award Agreement to Employees (Long-Term Incentive) |
10-K |
001-06510 |
10.11 |
3/31/2025 |
|
| 10.10# |
10-K |
001-06510 |
10.12 |
3/31/2025 |
||
| 10.11# |
Form of Restricted Stock Unit Agreement to Directors (Issuance Upon Vesting) |
10-K |
001-06510 |
10.13 |
3/31/2025 |
|
| 10.12# |
10-K |
001-06510 |
10.14 |
3/31/2025 |
||
| 10.13# |
Form of Stock Award Agreement for Employees (Annual Incentive) |
10-K |
001-06510 |
10.15 |
3/31/2025 |
|
| 10.14 |
X |
|||||
| 10.15 |
X |
|||||
| 10.16# |
10-K |
001-06510 |
10.13 |
3/24/2023 |
||
| 10.17# |
10-K |
001-06510 |
10.10 |
3/1/2022 |
||
| 19.1 |
10-K |
001-06510 |
19.1 |
3/31/2025 |
||
| 21.1 |
X |
|||||
| 23.1* |
Consent of Accuity LLP, Independent Registered Public Accounting Firm, dated March 31, 2026 |
X |
||||
| 24.1 |
Power of Attorney (included on the signature page of this report) |
X |
||||
| 31.1 |
X |
|||||
| 31.2 |
X |
|||||
| 32.1* |
X |
|||||
| 32.2* |
X |
|||||
| 97.1 |
10-K |
001-06510 |
97.1 |
3/31/2025 |
||
| 101.INS |
Inline XBRL Instance Document |
X |
||||
| 101.SCH |
Inline XBRL Taxonomy Extension Schema Document |
X |
||||
| 101.CAL |
InlineXBRL Taxonomy Extension Calculation document |
X |
||||
| 101.DEF |
Inline XBRL Taxonomy Extension Definition Linkbase |
X |
||||
| 101.LAB |
InlineXBRL Taxonomy Extension labels Linkbase Document |
X |
||||
| 101.PRE |
Inline XBRL Taxonomy Extension Presentation Link Document |
X |
||||
| 104 |
Cover Page Interactive Data File (formatted in the Inline XBRL and contained in Exhibit 101). |
|||||
| * |
This certification shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liability of that section, nor shall it be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, except to the extent that the registrant specifically incorporates it by reference. |
|||||
| # |
Indicates a management contract or compensatory plan or arrangement. |
|||||
| Item 16. |
FORM 10-K SUMMARY |
Not applicable.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on March 31, 2026.
| MAUI LAND & PINEAPPLE COMPANY, INC. |
||
| By: |
/s/ Race Randle |
|
| Race Randle |
||
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Race Randle and Wade K. Kodama, and each or either of them, acting individually, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Annual Report, and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or any of them, or their or his or her substitutes, may lawfully do or cause to be done or by virtue hereof.
Pursuant to the requirements of the Exchange Act, as amended, this Annual Report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| By |
/s/ Race Randle |
Date: March 31, 2026 |
|
| Race Randle, Chief Executive Officer (Principal Executive Officer) |
|||
| By |
/s/ Scot Sellers |
Date: March 31, 2026 |
|
| Scot Sellers, Chairman of the Board |
|||
| By |
/s/ Wade K. Kodama |
Date: March 31, 2026 |
|
| Wade K. Kodama, Chief Financial Officer |
|||
| (Principal Financial Officer and Principal Accounting Officer) |
|||
| By |
/s/ Stephen M. Case |
Date: March 31, 2026 |
|
| Stephen M. Case, Director |
|||
| By |
/s/ Anthony P. Takitani |
Date: March 31, 2026 |
|
| Anthony P. Takitani, Director |
|||
| By |
/s/ Glyn F. Aeppel |
Date: March 31, 2026 |
|
| Glyn F. Aeppel, Director |
|||
| By |
/s/ Ken Ota |
Date: March 31, 2026 |
|
| Ken Ota, Director |
|||
| By |
/s/ Catherine Ngo |
Date: March 31, 2026 |
|
| Catherine Ngo, Director |
|||
| By |
/s/ John M. Sabin |
Date: March 31, 2026 |
|
| John M. Sabin, Director |
EXHIBIT 10.4
SIXTH LOAN MODIFICATION AGREEMENT
RECITALS:
(1) MAUI LAND & PINEAPPLE COMPANY, INC., a Delaware corporation, is called the “Borrower”.
(2) FIRST HAWAIIAN BANK, a Hawaii corporation, is called the “Lender”.
(3) The Lender made a revolving credit facility (the “Credit Facility”) in favor of the Borrower up to the Revolving Loan Commitment, pursuant to the terms of a Credit Agreement dated August 4, 2016, by and between the Borrower and the Lender, as amended and restated by that certain Amended and Restated Credit Agreement dated December 30, 2016, and as amended and restated again by that certain Second Amended and Restated Credit Agreement dated December 23, 2021 (as amended and restated, the “Credit Agreement”). Capitalized terms that are not otherwise defined herein shall have the meanings given to them in the Credit Agreement (as amended by the Third Amended and Restated Credit Agreement).
(4) The Credit Facility is evidenced by that certain Note dated August 4, 2016, executed by the Borrower, as Maker, and payable to the order of the Lender, as Payee, as amended and restated by that certain Amended and Restated Note dated December 23, 2021 in the principal amount of $15,000,000 (as amended and restated, the “Note”).
(5) The terms and conditions of the Credit Facility have been amended by (A) that certain Loan Modification Agreement dated December 30, 2016, (B) that certain Second Loan Modification Agreement dated March 16, 2017, (C) that certain Third Loan Modification Agreement dated December 31, 2019, (D) that certain extension letter dated December 31, 2019, (E) that certain Fourth Loan Modification Agreement dated December 23, 2021, and (F) that certain Fifth Loan Modification Agreement dated July 15, 2022 by and between Lender and Borrower.
(6) The Borrower has requested that the Credit Facility be amended, among other things, (A) to further extend the Maturity Date of the Credit Facility for an additional five (5) years, from December 31, 2025 to December 31, 2030, (B) to increase the Revolving Loan Commitment from $15,000,000 to $25,000,000, and (C) to provide for the issuance of commercial or standby letters of credit. The Lender is willing to accommodate the request under the terms and conditions of this Sixth Loan Modification Agreement (the “Agreement”).
(7) The parties to this Agreement agree that as of the Effective Date, the outstanding principal balance due under the Note was $3,000,000.00.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and intending to be legally bound, the parties do hereby agree as follows:
1. Third Amended and Restated Credit Agreement. To extend the Maturity Date of the Credit Facility, increase the Revolving Loan Commitment amount from $15,000,000 to $25,000,000, and allow for the issuance of commercial and standby letters of credit, the Lender and the Borrower shall execute and deliver a Third Amended and Restated Credit Agreement (the “Third Amended and Restated Credit Agreement”). The Third Amended and Restated Credit Agreement shall be in form and substance reasonably acceptable to the Lender.
2. Second Amended and Restated Note. To reflect the increased Revolving Loan Commitment amount of $25,000,000, the Borrower shall execute and deliver a Second Amended and Restated Note in the principal amount of $25,000,000 (the “Second Amended and Restated Note”). The Second Amended and Restated Note shall be in form and substance reasonably acceptable to the Lender.
3. Third Amendment of Mortgage, Security Agreement and Fixture Filing and Assignment of Lessor’s Interest in Leases and Rents. The Lender and the Borrower shall execute and record a Third Amendment of Mortgage, Security Agreement and Fixture Filing and Assignment of Lessor’s Interest in Leases and Rents (the “Third Amendment of Mortgage”) to amend (A) the Mortgage, Security Agreement and Fixture Filing made by the Borrower, as Mortgagor, in favor of the Lender, as Mortgagee, recorded in the Bureau of Conveyances of the State of Hawaii (the “Bureau”) as Document No. A-60610335, as amended by Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents dated December 30, 2016, recorded in the Bureau as Document No. A-62080398A through A-62080398C, that certain Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents acknowledged December 17, 2021 and recorded on December 23, 2021 in the Bureau as Document Nos. A-80270350 and A-80270351, and that certain Amendment to Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents dated January 28, 2022, recorded in the Bureau as Document Nos. A-80690089 and A-80690090 (as amended, the “Mortgage”), and (B) that certain Assignment of Lessor’s Interest in Leases and Rents dated August 4, 2016, made by the Borrower, as Assignor, in favor of the Lender, as Assignee, recorded in the Bureau as Document No. A-60610336, as amended by that certain Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents dated December 30, 2016, recorded in the Bureau as Document No. A-62080398A through A-62080398C, that certain Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents acknowledged December 17, 2021 and recorded on December 23, 2021 in the Bureau as Document Nos. A-80270350 and A-80270351, and that certain Amendment to Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents dated January 28, 2022, recorded in the Bureau as Document Nos. A-80690089 and A-80690090 to refer to the terms of this Sixth Loan Modification Agreement. The Third Amendment of Mortgage shall be in form and substance reasonably acceptable to the Lender. The Lender shall obtain, at the Borrower’s expense, an endorsement or endorsements to the Lender’s title insurance policy which shall confirm that the Mortgage, as amended by the Third Amendment of Mortgage, continues to be a lien of first priority against the real property encumbered by the Mortgage in the amount of $25,000,000.
4. Amendment of Security Agreement. Section 2(a) of the Security Agreement is hereby amended as follows:
“the payment of all indebtedness evidenced by that certain Credit Agreement dated on or about the date of this Agreement, made by and between the Grantor and the Lender, relating to a senior revolving credit facility in a principal amount not to exceed $25,000,000.00. Said Credit Agreement, as it now exists or as it may be hereafter modified, is herein called the “Credit Agreement”;
5. Amendment of UCC Financing Statements. The UCC-1 Financing Statement recorded with the Secretary of State of the State of Hawaii as Document No. 20225991831 and the UCC-1 Financing Statement recorded with the Secretary of State of the State of Hawaii as Document No. 20225991930 shall be terminated with the Secretary of State of the State of Hawaii. The Lender shall file UCC-1 Financing Statements with the Secretary of State of the State of Delaware in connection with this Agreement.
6. Acknowledgment by Borrower. The Borrower hereby confirms that its respective representations, warranties and agreements to the Lender under the Environmental Indemnity Agreement remain in full force and effect and apply to the Credit Facility, as amended, and the Loan Documents as amended pursuant to this Agreement. Notwithstanding the amendment of the Loan Documents, the Borrower acknowledges and confirms that its obligations under the Environmental Indemnity Agreement are not modified and shall remain in full force and effect.
7. Enlargement. Any provision contained in the Loan Documents to the contrary notwithstanding, all terms and provisions of the Loan Documents, including the provisions for acceleration upon or after default, are hereby enlarged and extended to include and constitute security for the observance of the terms of this Agreement and the Third Amended and Restated Credit Agreement. All references in the Loan Documents to the “Credit Agreement” and the “Note” are hereby enlarged and expanded to mean the Third Amended and Restated Credit Agreement and the Second Amended and Restated Note, respectively.
8. Modification. This Agreement is a modification only and not a novation. In all other respects, the terms and conditions of the Loan Documents, as hereby modified, are hereby ratified and confirmed and shall remain in full force and effect.
9. Reaffirmation. The Borrower confirms and reaffirms all of its representations, warranties and covenants in the Loan Documents.
10. No Claims. The Borrower agrees and acknowledges that there are no claims, defenses or offsets that may be asserted by the Borrower that may reduce any amounts outstanding under the Loan Documents arising prior to the Effective Date. In consideration of the Lender’s agreements herein, the Borrower agrees that any such claims, defenses and offsets are hereby released.
11. Costs and Expenses. In consideration of, and as a condition to, the agreements contained herein, the Borrower shall promptly reimburse the Lender upon demand for all costs and expenses, including recordation fees, title insurance premiums and reasonable attorneys’ fees, incurred by the Lender in connection with this transaction.
12. Other Terms and Conditions.
(a) This Agreement shall be effective as of December 22, 2025 (the “Effective Date”), when the following conditions have been satisfied:
(i) this Agreement, the Third Amended and Restated Credit Agreement, the Second Amended and Restated Note, and the Third Amendment of Mortgage have been executed and delivered to the Lender by the Borrower; and
(ii) the costs and expenses set forth in Section 11 above have been paid;
(iii) the Third Amendment of Mortgage has been recorded with a commitment from the title insurer to issue an endorsement acceptable to the Lender; and
(iv) the Borrower has provided the Lender with evidence that the Borrower has the authority to amend the Credit Facility as provided in this Agreement, the Third Amended and Restated Credit Agreement and the other Loan Documents, as amended, and to perform its obligations under the Loan Documents, as amended.
(b) The rights, duties and obligations hereunder shall be binding upon, and inure to the benefits of, the parties hereto and their respective successors and assigns.
(c) Within five (5) days of the Lender’s request, the Borrower shall execute and deliver such further documents and do such other acts as the Lender may reasonably deem necessary to carry out the purposes of this Agreement.
(d) This Agreement may be executed in counterparts, each of which shall be an original instrument and all of which shall together constitute one and the same agreement.
[Remainder of page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Loan Modification Agreement to be duly executed as of the Effective Date.
|
Lender: |
||
|
FIRST HAWAIIAN BANK |
||
|
By: |
/s/ Charles C Barbata |
|
|
Charles C. Barbata Its Senior Vice President |
||
|
Borrower: |
||
|
MAUI LAND & PINEAPPLE COMPANY, INC. |
||
|
By: |
/s/ Wade K. Kodama |
|
|
Wade K. Kodama Its Chief Financial Officer |
||
EXHIBIT 10.5
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This Third Amended and Restated Credit Agreement (the “Agreement”) dated December 22, 2025 (the “Effective Date”), is made by and between FIRST HAWAIIAN BANK, a Hawaii corporation (the “Lender”), and MAUI LAND & PINEAPPLE COMPANY, INC., a Delaware corporation (the “Borrower”).
RECITALS:
A. Lender made a revolving credit facility (the “Credit Facility”) in favor of the Borrower pursuant to the terms of that certain Credit Agreement dated August 4, 2016, by and between the Borrower and the Lender, as amended and restated by (1) that certain Amended and Restated Credit Agreement dated December 30, 2016, and (2) that certain Second Amended and Restated Credit Agreement dated December 23, 2021 (as amended and restated, the “Second Amended and Restated Credit Agreement”).
B. The Credit Facility is evidenced by that certain Amended and Restated Note dated December 23, 2021, executed by the Borrower, as Maker, and payable to the order of the Lender, as Payee, in the original principal amount of $15,000,000.
C. The terms and conditions of the Credit Facility have been amended by (A) that certain Loan Modification Agreement dated December 30, 2016, (B) that certain Second Loan Modification Agreement dated March 16, 2017, (C) that certain Third Loan Modification Agreement dated December 31, 2019, (D) that certain extension letter dated December 31, 2019, (E) that certain Fourth Loan Modification Agreement dated December 23, 2021, and (F) that certain Fifth Loan Modification Agreement dated July 15, 2022 by and between the Lender and the Borrower.
D. The Borrower has requested that the Credit Facility be amended, among other things, (1) to further extend the Maturity Date of the Credit Facility for an additional five (5) years, from December 31, 2025 to December 31, 2030, (2) to increase the Revolving Loan Commitment from $15,000,000 to $25,000,000 and (3) to provide for the issuance of commercial or standby letters of credit. The Lender is willing to accommodate the request under the terms and conditions of this Agreement.
E. The Lender and the Borrower wish to further amend and restate the Second Amended and Restated Credit Agreement in its entirety to accommodate the Borrower’s requests as more particularly set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower and Lender hereby agree, effective as of the Effective Date, the Second Amended and Restated Credit Agreement is hereby further amended and restated in its entirety (all capitalized terms used herein shall have the meaning specified therefor in Article VIII unless otherwise defined herein), as follows:
I. CREDIT FACILITY
1.1 In General.
(a) Credit Facility. Subject to the terms of this Agreement and the other Loan Documents, and provided that no Event of Default then exists, the Lender will extend credit to the Borrower, by way of drawings permitted by Section 1.2 hereof, from time to time prior to the Maturity Date. Each extension of credit under the Credit Facility, whether in the form of a Revolving Borrowing, a Term Loan, or a Letter of Credit (each called a “Loan” and collectively called the “Loans”) shall be in such amount as the Borrower may request; provided, that, (i) the aggregate principal amount of all extensions of credit at any one time outstanding under the Credit Facility shall not exceed the Revolving Loan Commitment and (ii) the L/C Exposure shall not any time exceed the L/C Exposure Limit. Subject to the terms of this Agreement, the Borrower may borrow Revolving Borrowings and Term Loans and repay all or part of the Revolving Borrowings and Term Loans and borrow further Revolving Borrowings and Term Loans.
(b) Purpose. The Borrower acknowledges and agrees that the specific stated purpose of the Credit Facility is to provide financing for working capital and general business purposes. The Credit Facility is for business purposes and is not a consumer loan.
(c) Maturity Date. Unless extended or sooner terminated in accordance with this Agreement, the Credit Facility shall terminate on December 31, 2030 (such date as extended or sooner terminated being referred to herein as the “Maturity Date”); provided, however, that the Term Loans may have Term Loan Maturity Dates beyond the Maturity Date, and Letters of Credit may expire at a date beyond the Maturity Date, subject to Section 4.19, in which case the terms and provisions of this Agreement shall continue to apply to such Term Loans and Letters of Credit beyond the Maturity Date.
1.2 Amount and Terms of the Credit Facility.
(a) Revolving Credit Commitment. Subject to and upon the terms and conditions herein set forth, and provided that no Event of Default then exists, the Lender agrees from time to time prior to the Maturity Date to make advances to the Borrower of up to the Revolving Loan Commitment by way of revolving loans (each called a “Revolving Borrowing” and collectively called the “Revolving Borrowings”) as described in this Section 1.2.
(i) Terms of Revolving Borrowings. All Revolving Borrowings: (i) may be borrowed, repaid and reborrowed in accordance with the provisions hereof; (ii) shall bear interest as described in Section 1.4 of this Agreement; and (iii) except as otherwise specified in this Agreement, shall mature and be payable on the Maturity Date.
(ii) Procedure and Conditions for Revolving Borrowings. From time to time prior to the Maturity Date, the Borrower may request that the Lender provide the Borrower with indicative rates, and/or request a draw on the Credit Facility in the form of a Revolving Borrowing. Each such request shall be made by written notice substantially in the form of Exhibit “A” attached hereto (a “Notice of Borrowing”) delivered to the Lender no later than 11:00 a.m. (Hawaii Standard Time) at least two (2) Business Days’ in advance (or such later time as the Lender may agree to in its sole discretion), shall be irrevocable, and shall specify the aggregate principal amount which the Borrower desires to draw, the date of the Revolving Borrowing (which shall be a Business Day and which must be a date no later than two (2) Business Days prior to the Maturity Date).
(iii) Disbursement of Revolving Loan Funds. No later than 11:00 a.m. (Hawaii Standard Time) on the date properly specified in a Notice of Borrowing, and provided that no Event of Default then exists, the Lender will make available the amount of the Revolving Borrowing requested to be made on such date in U.S. Dollars and in immediately available funds, against delivery to the Lender by the Borrower of any documents and papers provided for herein.
(b) Term Loans. Subject to and upon the terms and conditions herein set forth, and provided that no Event of Default then exists, the Borrower may request, and the Lender agrees from time to time prior to the Maturity Date to make advances to the Borrower of up to the Revolving Loan Commitment by way of term loans (each called a “Term Loan” and collectively called the “Term Loans”) as described in this Section 1.2.
(i) Terms of Term Loans.
(A) Each Term Loan shall bear interest as described in Section 1.4 of this Agreement.
(B) Except as otherwise specified in this Agreement, each Term Loan shall mature and be payable on the respective Term Loan Maturity Date.
(C) There shall be no more than three (3) Term Loans outstanding at any given time.
(ii) Procedure and Conditions for Term Loans.
(A) From time to time prior to the Maturity Date, the Borrower may request that the Lender provide the Borrower with indicative rates, and/or request a draw on the Credit Facility in the form of a Term Loan. Each such request shall be made by a Notice of Borrowing substantially in the form of Exhibit “A” attached hereto delivered to the Lender no later than 11:00 a.m. (Hawaii Standard Time) at least two (2) Business Days’ in advance (or such later time as the Lender may agree to in its sole discretion), shall be irrevocable, and shall specify the aggregate principal amount which the Borrower desires to draw, the date of the Term Loan (which shall be a Business Day and which must be a date no later than two (2) Business Days prior to the Maturity Date), and the maturity date of the Term Loan which shall be at the Borrower’s option but shall not be later than 120 months from the date of the Term Loan advance (the “Term Loan Maturity Date”).
(B) Each Term Loan advance is conditioned upon the Borrower’s demonstration to the Lender of a minimum Debt Yield of not less than 9.0% using the trailing 12-month Primary NOI.
(iii) Disbursement of Term Loans. No later than 11:00 a.m. (Hawaii Standard Time) on the date properly specified in a Notice of Borrowing, and provided that no Event of Default then exists, the Lender will make available the amount of the Term Loan requested to be made on such date in U.S. Dollars and in immediately available funds, against delivery to the Lender by the Borrower of any documents and papers provided for herein.
(c) Letters of Credit. The Borrower may request the issuance of commercial or standby letters of credit (“Letters of Credit”) issued by the Lender, subject to the following terms and conditions:
(i) Letters of Credit shall be issued solely for the Borrower’s ongoing business operations.
(ii) The Letters of Credit, together with the then aggregate outstanding principal amount of all Revolving Borrowings and Term Loans, shall not at any time exceed the amount of the Revolving Loan Commitment, and the L/C Exposure shall not at any time exceed the amount of the L/C Exposure Limit. The Borrower acknowledges that the aggregate amount available to be drawn on all existing and pending Letters of Credit shall reduce, dollar for dollar, the amount that the Borrowers may draw against the Revolving Loan Commitment.
(iii) No Letter of Credit shall have a maturity or expiration date later than six (6) months after the Maturity Date.
(iv) Each Letter of Credit shall be in an amount that is at least $10,000.
(v) The Borrower shall request a Letter of Credit by completing the Lender’s standard form of Letter of Credit Application substantially in the form attached hereto as Exhibit “B” (the “L/C Application”) and satisfying the requirements thereunder. The L/C Application shall be submitted to the Lender, together with a Notice of Borrowing substantially in the form of Exhibit “A” attached hereto. Each Letter of Credit shall be subject to the terms, conditions and fees specified in the L/C Application. In the event of any inconsistencies between the terms and conditions of this Agreement and the terms and conditions of any form of Letter of Credit or L/C Application, or any other agreement relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
(vi) If the Lender, as Issuing Bank, shall make any L/C Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such L/C Disbursement in accordance with the following procedures. If the Issuing Bank receives notice of a draw on a Letter of Credit accompanied by the L/C Application and any documentation required thereunder, the Issuing Bank will pay the draw between the third (3rd) and fifth (5th) Business Day after receipt of such notice. The Issuing Bank will notify the Borrower of receipt of the notice of draw on the same Business Day received, and no later than 10:00 a.m. on the following Business Day, the Borrower must give written notice to the Issuing Bank whether the draw will be reimbursed by the Borrower directly from their own funds or from the proceeds of a Revolving Borrowing on the date of payment of the draw, in which case the notice shall include a Notice of Borrowing that will be processed by the Issuing Bank in accordance with Section 1.2. If the Borrower elects to reimburse the draw directly with their own funds, an amount equal to such L/C Disbursement shall be paid by the Borrower to the Issuing Bank not later than 10:00 a.m. (Hawaii Standard Time), on the date that such L/C Disbursement is made. If the Borrower, either (A) fails to make a reimbursement election as required by this paragraph, or (B) having made an election to reimburse the draw directly fails to make such reimbursement when due, then the Lender will reimburse the Issuing Bank the L/C Disbursement, and such payment shall constitute a Revolving Borrowing under this Agreement, and shall bear interest at the rate set forth in Section 1.4 as a Revolving Borrowing.
(vii) The Borrower’s obligation to reimburse L/C Disbursements as provided above shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of: (A) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein; (B) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; (C) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms of such Letter of Credit; or (D) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this subsection (vii), constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
(viii) Neither the Lender nor the Issuing Bank shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding subsection 1.2(c)(vii), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the provisions of this paragraph shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as proposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(ix) In the event that there are any existing or pending Letters of Credit which are scheduled to expire after the Maturity Date, the Borrower shall provide the Lender with L/C Collateral as provided in Section 4.19 of this Agreement.
(d) Limits on Loans. Notwithstanding any other provision contained in this Agreement to the contrary, there shall be a limit of one (1) Revolving Borrowing or Term Loan advance per month.
(e) Note.
(i) The Borrower’s obligations to pay the principal of, and interest on, the Credit Facility and all Loans made pursuant thereto shall be evidenced by a Second Amended and Restated Note which shall: (A) be payable to the order of the Lender and be dated on or about the date of this Agreement; (B) be in a stated principal amount equal to the Revolving Loan Commitment; (C) mature on the Maturity Date except with respect to the Term Loans which shall mature on the respective Term Loan Maturity Dates and except with respect to any Letter of Credit which expire after the Maturity Date; (D) bear interest as provided in Section 1.4 of this Agreement; and (E) be entitled to the benefits, and subject to the terms and conditions, of this Agreement. The Second Amended and Restated Note, as from time to time amended, modified or replaced, shall be referred to as the “Note”.
(ii) The Lender shall maintain such records of its making of each Loan, repayment of principal thereof (if any) and interest thereon and other information relating thereto as it shall deem appropriate in accordance with its customary practices, which records shall constitute prima facie evidence thereof. Failure to maintain such records with respect to the Credit Facility, any Loan shall not limit or otherwise affect the obligation of the Borrower hereunder or under the Note with respect to the Credit Facility, any Loan, and payments of principal (if any) or interest by the Borrower shall not be affected thereby. Notwithstanding the date of the Note, interest in respect thereof shall be payable only for the periods during which Loans are outstanding, and although the stated principal amount of the Note shall be equal to the Revolving Loan Commitment, the Note shall be enforceable with respect to the Borrower’s obligation to pay principal thereunder (if any) and interest thereon only to the extent of the aggregate unpaid principal amount of the Loans at the time outstanding.
1.3 Security. The Credit Facility shall be secured by liens on or security interests in the following collateral (“Collateral”), which liens or security interests shall be of first priority unless otherwise agreed by the Lender:
(a) The Mortgaged Property and the Borrower’s interest as lessor in, and all rents from, leases relating to the Mortgaged Property; and
(b) The Personal Property, but excluding the stock and membership interests in the Borrower Subsidiaries.
1.4 Interest.
(a) Interest on Revolving Borrowings.
(i) The Borrower agrees to pay interest on the outstanding principal balance of each Revolving Borrowing at a fluctuating rate per annum equal to the Prime Rate minus one and 125/1000 percentage points (1.125%).
(ii) Interest shall be computed on a 365 or 366 day year, and the actual number of days elapsed.
(iii) Each change in such fluctuating rate shall take effect simultaneously with the effective date of the corresponding change in the Prime Rate. “Prime Rate” or “Prime” shall mean the lending rate of interest announced publicly by First Hawaiian Bank from time to time as its “prime interest rate”, which rate shall not necessarily be the best or lowest rate charged by First Hawaiian Bank from time to time.
(iv) Upon an Event of Default, the interest shall accrue at the rate four percentage points (4.00%) higher than the greater of (i) the rate which would be charged in the absence of default, or (ii) the Prime Rate, fluctuating with the Prime Rate (the “Default Rate”).
(b) Interest on Term Loans.
(i) With respect to each Term Loan, the interest rate, at the Borrower’s option, shall be as follows:
(A) Option 1. A fluctuating rate per annum equal to the Prime Rate minus one and 125/1000 percentage points (1.125%). To fix the interest rate, the Borrower will acquire an interest rate swap (the “Swap”) for the entire amount of the Term Loan with the Lender on mutually agreeable terms or other counterparty acceptable to the Lender.
(B) Option 2. A fixed rate per annum equal to the Lender’s prevailing rate for similar commercial loans. The interest rate shall be set two (2) Business Days prior to the Term Loan advance.
(ii) Interest shall be computed on a 365 or 366 day year, and the actual number of days elapsed.
(iii) Upon an Event of Default, the interest shall accrue at Default Rate.
(c) Miscellaneous.
(i) Interest hereunder shall be computed, but not compounded, daily on the basis of the rate of interest then in effect.
(ii) Notwithstanding any provision in this Agreement, the Note, or in any of the other Loan Documents to the contrary, the rate of interest which the Borrower shall be required to pay to the Lender shall in no event exceed the maximum rate which may be permitted under applicable law. If, from whatever circumstance whatsoever, performance by the Borrower of any obligation under this Agreement, the Note, or any of the other Loan Documents, at the time performance thereof shall be due (including, without limitation, the payment of interest at the Default Rate or otherwise, or the payment of any fee, charge or expense to be paid or incurred by the Borrower which shall be deemed to be interest), shall involve transcending the limits of validity prescribed by applicable law, then automatically, such obligation to be performed shall be reduced to the limit of such validity prescribed by applicable law. If, notwithstanding the foregoing limitations, any excess interest shall be determined to have been received, the same shall be deemed to have been held as additional security.
1.5 Repayment of Credit Facility.
(a) Repayment of Revolving Borrowings.
(i) Interest Payments. The Borrower shall make monthly payments of all accrued interest on the outstanding principal balance of each Revolving Borrowing on the first Business Day of each calendar month.
(ii) Maturity of the Credit Facility. All unpaid principal and accrued interest on all Revolving Borrowings will be due and payable on the Maturity Date, without notice or demand.
(b) Repayment of Term Loans.
(i) Principal and Interest Payments. The Borrower shall make monthly principal and interest payments on each Term Loan based on a twenty-five (25) year mortgage style amortization schedule, on the first Business Day of each calendar month.
(ii) Maturity of the Term Loans. All unpaid principal and accrued interest on the Term Loans will be due and payable on the respective Term Loan Maturity Date, without notice or demand.
(c) Prepayments.
(i) Voluntary Prepayments of Revolving Borrowings. The Borrower may prepay all or any portion of principal on any Revolving Borrowing without a prepayment charge, provided that a minimum of three (3) Business Days’ notice is given to the Lender, and provided that at the time of any such prepayment the Borrower shall pay all interest theretofore accrued on all Loans.
(ii) Voluntary Prepayments of Term Loans.
(A) If Option 1 was selected for a Term Loan, the Borrower may prepay all or any portion of principal on the Term Loan without a prepayment charge except for any termination costs under the Swap, provided that a minimum of three (3) Business Days’ notice is given to the Lender, and provided that at the time of any such prepayment the Borrower shall pay all interest theretofore accrued on all Loans.
(B) If Option 2 was selected for a Term Loan:
(i) During the first twenty-four (24) months of the Term Loan, the Borrower may prepay all or any portion of principal on the Term Loan subject to a Yield Maintenance prepayment charge. “Yield Maintenance” shall be defined as the product of (x) the prepayment amount, multiplied by (y) the difference between the interest rate being charged at the time of the prepayment, and the market yield of United States Treasury issues having a maturity date (month and year) closest to the Term Loan Maturity Date of the applicable Term Loan, as quoted in the Wall Street Journal three (3) Business Days prior to the prepayment date, multiplied by (z) a fraction equal to the number of days from the date of prepayment to the Term Loan Maturity Date, divided by 360.
(ii) After the twenty-fourth (24th) month of the Term Loan, the Borrower may prepay all or any portion of principal on the Term Loan without a prepayment charge.
(iii) Notwithstanding the foregoing, any prepayment pursuant to this Section 1.5(c)(ii)(B) shall be subject to the requirement that a minimum of three (3) Business Days’ notice be given to the Lender, and the condition that at the time of any such prepayment the Borrower shall pay all interest theretofore accrued on all Loans.
(iii) No Waiver. Until the Credit Facility is paid in full (principal and interest), no optional prepayment shall be credited to or relieve the Borrower to any extent from its obligation thereafter to pay any monthly installment of interest or any other payment required under the Credit Facility.
(iv) Cash Flow. The Borrower acknowledges that the Credit Facility is being underwritten by the Lender based on the cash flow from the Borrower’s operations and from the operations of the Borrower Subsidiaries, and the Borrower agrees that such cash flow will be used for the repayment of Revolving Borrowings and TermLoans under the Credit Facility.
(d) Currency, Place and Dates of Payments. Payments shall be made in United States money in immediately available funds at the Lender’s address in Section 7.5 of this Agreement, or at such other place as the Lender shall have designated by written notice to the Borrower. Whenever any payment to be made hereunder or under the Note shall be stated to be due on a day which is not a Business Day, as may be applicable, the due date thereof shall be extended to the next succeeding Business Day, and, if a payment of principal has been so extended, the interest shall be payable on such principal at the applicable rate during such extension. Any payment made after 10:00 a.m. (Hawaii Standard Time) may, at the Lender’s option, be credited as paid on the following Business Day.
(e) Net Payments. All payments under this Agreement shall be made without setoff or counterclaim and in such amounts as may be necessary in order that all such payments of principal and interest (after (i) deduction or withholding for or on account of any present or future taxes, levies, imposts, duties or other charges of whatsoever nature imposed by any government or any political subdivision or taxing authority thereof, other than any tax (except such taxes referred to in clause (ii) below) on or measured by the net income of a lender pursuant to the income tax laws of the jurisdiction where such lender’s principal or lending office is located (collectively the “Taxes”); and (ii) deduction of an amount equal to any taxes, on or measured by the net income, payable by such lender with respect to the amount by which the payments required to be made by this Section 1.5 exceed the amount otherwise specified to be paid under this Agreement and the Note) shall not be less than the amounts otherwise specified to be paid under this Agreement and the Note. A certificate as to any additional amounts payable to the Lender under this Section 1.5 submitted to the Borrower by such Lender shall show in reasonable detail the amount payable and the calculations used to determine such amount and shall, absent manifest error, be final, conclusive and binding upon all parties hereto. With respect to each deduction or withholding for or on account of any Taxes, the Borrower shall promptly furnish to the Lender such certificates, receipts and other documents as may be required (in the judgment of such Lender) to establish any tax credit to which such Lender may be entitled.
(f) Late Charges. If any payment under this Agreement is not made within ten (10) calendar days after such payment is due, the Borrower will pay to the Lender, a late charge in respect of that payment, in the amount of five percent (5%) of the overdue payment.
(g) Application of Payments. Except as otherwise specified in this Agreement, all payments made under this Agreement, the Note and other Loan Documents shall be applied first to advances made by the Lender or costs incurred by the Lender, then to late payment charges, then to interest, and then to principal; provided, however, that in an Event of Default, the Lender shall be entitled to allocate all payments received by the Lender to principal, interest, late payment charges, advances and/or costs in such order as the Lender may elect. The receipt of a check shall not, in itself, constitute payment hereunder unless and until the check is honored.
(h) Effect of Prepayments. No prepayments (whether voluntary or otherwise) shall reduce or affect any regularly scheduled installment payment or any required prepayment specified in this Agreement.
1.6 Evidence of Indebtedness; Loan Documents. The Credit Facility is or is to be evidenced and/or secured by this Agreement, the Note, the Mortgage, the Assignment of Rents, the Security Agreement, the Closing Certificate, and all such other documents as the Lender may require from time to time in order to effectuate the intent of this Agreement, together with all renewals, extensions and modifications thereto (the “Loan Documents”).
1.7 The Borrower’s Obligations. The Borrower’s obligations to pay, observe and perform all indebtedness, liabilities, covenants and other obligations on the part of the Borrower to be paid, observed and performed under this Agreement, the Note and all other Loan Documents, are herein collectively called the “Obligations”.
1.8 Loan Fee.
(a) The Borrower and the Lender acknowledge that a non‑refundable loan fee (the “Loan Fee”), in an amount equal to Two Hundred Seventy Thousand and No/100 Dollars ($270,000.00) has been earned and paid with respect to this Loan and is no longer due or payable.
(b) There will not be any additional loan fee applicable to the modification of the Loan made as of the Effective Date.
1.9 Letter of Credit Fees.
(a) Commercial Letter of Credit Fee. For each commercial Letter of Credit, the Borrower agrees to pay the Issuing Bank for its own account, fees at the time of issuance equal to the Issuing Bank’s standard fees and charges in effect at the time the commercial Letter of Credit is requested, plus, as applicable, annual fees on each anniversary of the original issuance date, fees for renewal or extension of any commercial Letter of Credit, and fees for processing of drawings thereunder.
(b) Standby Letter of Credit Fee. For each standby Letter of Credit, the Borrower agrees to pay the Issuing Bank for its own account, fees at the time of issuance equal to the Issuing Bank’s standard fees and charges in effect at the time the standby Letter of Credit is requested and a fee equal to 1.50% of the amount of the standby Letter of Credit, plus, as applicable, annual fees on each anniversary of the original issuance date, and fees for renewal or extension of any standby Letter of Credit. In the event any standby Letter of Credit is drawn, the Borrower shall pay a payment fee as specified in the application for the Letter of Credit.
II. CONDITIONS PRECEDENT
2.1 First Borrowing. The obligation of the Lender to make the Credit Facility available to the Borrower under this Agreement is subject to the satisfaction of all of the following conditions on or before the Closing Date or dates on which the Lender shall make any disbursement of Credit Facility proceeds to the Borrower:
(a) Documents Required for Closing. The Lender shall have received, in each case in form and substance satisfactory to the Lender, such fully executed originals or certified copies as the Lender may have requested of each of the following, in each case as amended through the Closing Date:
(i) Loan Documents. All of the Loan Documents, duly executed by the Borrower, including, without limitation:
(A) This Agreement;
(B) The Note;
(C) The Mortgage, in form and substance acceptable to the Lender;
(D) The Assignment of Rents, in form and substance acceptable to the Lender,
(E) Subordination, Nondisturbance and Attornment Agreements from Key Tenants in favor of the Lender, in form and substance acceptable to the Lender, provided that the Sansei SNDA may be deferred until after the Closing Date, as described in Section 4.17;
(F) The Security Agreement, in form and substance acceptable to the Lender;
(G) [RESERVED].
(H) One or more Uniform Commercial Code Financing Statement(s) perfecting the security interest in the Personal Property;
(I) [RESERVED].
(J) Environmental Indemnity Agreement, in form and substance acceptable to the Lender;
(K) The Closing Certificate, in form and substance acceptable to the Lender; and
(L) Notice of Mortgage, Pledge or Purchase, suitable for filing with the Department of Taxation of the State of Hawaii.
(ii) Consents. Evidence that all parties to the Loan Documents (except the Lender) have obtained all necessary and appropriate authority, approvals and consents to execute and deliver the Loan Documents.
(iii) Organizational Documents and Tax Clearances. All instruments pursuant to which the Borrower is organized and by which its internal affairs are governed and, if requested by the Lender, a Certificate of Good Standing or other evidence of the Borrower’s good standing in the State of Delaware and authority to conduct their business in the State of Hawaii, and a tax clearance certificate for the Borrower issued by the Department of Taxation of the State of Hawaii.
(iv) Evidence of Priority. Evidence acceptable to the Lender that the liens on and/or security interests in the Collateral have the priority required by the Lender.
(v) Title Insurance, Leasehold Instruments, etc. An ALTA Form Lender’s Title Insurance Policy, assuring to the Lender the validity and agreed-upon priority of the Mortgage, and, if the Mortgage encumbers a leasehold estate, the applicable lease and a lessor’s consent to the Mortgage (if required).
(vi) Opinion(s) of Counsel. An opinion or opinions of counsel for the Borrower, addressed to the Lender, covering to the Lender’s satisfaction: (1) the due authorization, execution, delivery, binding effect, and enforceability of the Loan Documents; (2) no undisclosed litigation, (3) no consents or approvals required; (4) no conflicts with any agreement or laws; and (5) such other matters as the Lender may require; and
(vii) Insurance. Evidence of the Borrower’s compliance, in respect of such properties, with the provisions stated below in Section 4.5.
(b) Certain Other Events. On the Closing Date:
(i) No Default or Event of Default shall have occurred and be continuing.
(ii) No material adverse change shall have occurred in the financial condition of the Borrower or any Borrower Subsidiary since the date of the most recent financial statements submitted to the Lender.
(iii) No material adverse change shall have occurred in the physical condition of the Borrower’s or any Borrower Subsidiary’s assets since the date of this Agreement.
(iv) All legal matters incidental to the transaction contemplated hereby shall be satisfactory to legal counsel for the Lender.
(v) The Borrower shall have paid to the Lender all fees described in Section 1.8 above.
(vi) The representations and warranties contained in Article III shall be true.
2.2 Subsequent Borrowings. The obligation of the Lender to disburse any draw or Borrowing on the Credit Facility, or to make any subsequent loan or other extension of credit is subject to: (a) the prior satisfaction of all conditions stated above in Section 2.1(a); (b) the satisfaction as of the date of such disbursement, conversion or subsequent loan or other extension of credit of the conditions stated above in Section 2.1(b); (c) the satisfaction as of the date of such loan, the conditions stated above in Section 1.2; and (d) the delivery to the Lender of such additional Loan Documents as may have been reasonably requested by the Lender in respect to such conversion, subsequent loan or other extension of credit.
III. REPRESENTATIONS AND WARRANTIES
To induce the Lender to make the Credit Facility available and to enter into this Agreement, the Borrower makes the following representations and warranties to the Lender, which representations and warranties shall survive the execution of this Agreement and continue so long as the Borrower is indebted to the Lender under the Loan Documents, and until payment in full of the Credit Facility:
3.1 Corporate Status.
(a) The Borrower is a Delaware corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;
(b) Borrower is authorized, to the extent required under applicable law, to do business and is in good standing in all other States of the United States and in any other jurisdiction wherein the nature of its business requires such qualification; there is no action required of the Borrower which has not already been taken to enable the Borrower to do business as presently conducted by it in the State of Hawaii and all other States and jurisdictions wherein it owns or leases properties or transacts or is engaged in business;
(c) the Borrower’s chief executive office is located at the address stated in Section 7.5 of this Agreement;
(d) the Borrower’s exact legal name is the name stated in the first paragraph of this Agreement; and the Borrower has all necessary power to execute, deliver and perform the Obligations, this Agreement, the Note, and each of the other Loan Documents to which it is party, to borrow under the Credit Facility hereunder and to incur the Obligations.
3.2 Authority; No Conflict. The execution, delivery and performance by the Borrower of this Agreement, the Note, and each of the other Loan Documents executed and delivered or to be executed and delivered by it as contemplated by this Agreement have been duly authorized by all necessary corporate action by the Borrower and will not immediately, or with the passage of time or the giving of notice, or both: (a) violate any provision of law or regulation, or any decree, order, writ or judgment, or any provision of the charter or articles of incorporation or by-laws (or other organic documents) of the Borrower or result in the breach of or constitute a default under any indenture or other agreement or instrument to which the Borrower is a party or by which its property is bound; or (b) result in the creation or imposition of any security interest in, or lien or encumbrance on, any of the assets of the Borrower, except in favor of the Lender.
3.3 Legality, Etc. This Agreement constitutes and, when executed and delivered, the Note, and each of the other Loan Documents will constitute legal, valid and binding obligations of the Borrower and each of the other parties thereto (other than the Lender) enforceable in accordance with their respective terms.
3.4 Litigation. No litigation, arbitration or administrative or bankruptcy proceeding is pending or, to the knowledge of the Borrower, threatened, which, if determined adversely to the Borrower or any Borrower Subsidiary, would materially and adversely affect the ability of the Borrower to perform any of its obligations under this Agreement, or any of the other Loan Documents, except as disclosed to the Lender from time to time in writing, and the Borrower agrees to provide the Lender with such information in respect thereof as the Lender may reasonably request. There is no litigation, arbitration or administrative proceeding pending or, to the knowledge of the Borrower, threatened which questions the validity of this Agreement, the Note, or any of the other Loan Documents.
3.5 No Violation. No part of the proceeds of the Credit Facility under this Agreement will be used, directly or indirectly, by the Borrower for the purpose of purchasing or carrying any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System, or for any other purpose which violates, or which conflicts with, the provisions of Regulations G, T, U or X of said Board of Governors. The Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any such “margin stock.”
3.6 ERISA.
(a) The issuance of the Note hereunder will not cause the Borrower to be engaged in a “prohibited transaction,” as such term is defined in Section 4975 of the Internal Revenue Code and there have not been any “reportable events,” as that term is defined in Section 4043 of the Employee Retirement Income Security Act of 1974, as amended, which would result in a material liability to the Borrower.
(b) With respect to each Plan, the Borrower and each member of the Controlled Group of which the Borrower is a member have fulfilled their respective obligations under the minimum funding standards of ERISA and the Code and are in compliance in all material respects with the presently applicable provisions of ERISA and the Code, and have not incurred any termination liability to the PBGC under Title IV of ERISA which is currently unsatisfied. With respect to each Plan which is a multi-employer pension plan, the Borrower and each member of the Controlled Group of the Borrower has fulfilled its respective Plan contribution requirements under the applicable collective bargaining agreement and has not incurred any withdrawal liability to the Plan under Title IV of ERISA which is currently unsatisfied.
3.7 Consents. No authorization, consent or approval from governmental bodies or regulatory authorities is required for the making and performance of this Agreement by the Borrower and the execution, delivery and performance of the Note or other Loan Documents issued or proposed to be issued by the Borrower hereunder, except such authorizations, consents and approvals as have been obtained prior to the making of the Credit Facility and are in full force and effect.
3.8 Hazardous Substances. With respect to Hazardous Substances: (a) the Borrower and each Borrower Subsidiary is in compliance with all Environmental Laws; (b) neither the Borrower nor any Borrower Subsidiary has engaged in any Hazardous Substance Activity in violation of any Environmental Laws, nor to the best of the knowledge of the Borrower, after due inquiry and investigation, has any Hazardous Substance Activity otherwise occurred in violation of any Environmental Laws; (c) neither the Borrower nor any Borrower Subsidiary will engage in any Hazardous Substance Activity in violation of any Environmental Laws; (d) if at any time Hazardous Substances are discovered on, under, in or about any of the Borrower’s or any Borrower Subsidiary’s premises at levels in excess of the levels at which remedial action is required under applicable laws and regulations, the Borrower, at its sole cost and expense, will inform the Lender of the same and remediate such Hazardous Substances in accordance with a remedial program or corrective action program in accordance with the requirements of the Hawaii Department of Health, the Environmental Protection Agency, or any other entity enforcing any applicable environmental laws; (e) if at any time the Borrower or any Borrower Subsidiary is notified by the Hawaii Department of Health, the Environmental Protection Agency, or any other entity enforcing any applicable environmental laws that it is in violation of any Environmental Laws or named as a “potentially responsible person” under any Environmental Laws, the Borrower, at its sole cost and expense, will inform the Lender of same, take prompt action to correct the violation and come into compliance with all Environmental Laws; and (f) the Borrower shall indemnify, defend and save and hold harmless forever the Lender from and against any and all claims, actions, fines and penalties of whatever nature and kind whatsoever caused by or relating to any breach or violation of any of the foregoing representations or warranties of the Borrower or otherwise any violation of any Environmental Laws. The foregoing obligation set forth in this Section 3.8 shall survive the execution of this Agreement and the performance of all obligations of the Borrower hereunder.
3.9 Investment Company. The Borrower is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
3.10 Validity. This Agreement is, and the remainder of the Loan Documents are, or when delivered will be, legal, valid, binding, and enforceable in accordance with their respective terms.
3.11 Financial Statements. All financial statements heretofore given by the Borrower to the Lender, including any schedules and notes pertaining thereto, were prepared in accordance with GAAP and fully and fairly present the financial condition of the Borrower and Borrower Subsidiaries at the dates thereof and the results of operations for the periods covered thereby, and as of the date of this Agreement there have been no material adverse changes in the financial condition or business of the Borrower or any Borrower Subsidiary from the date of the most recent financial statements given to the Lender.
3.12 Taxes. Except as otherwise permitted by this Agreement, the Borrower and each Borrower Subsidiary has filed all tax returns it was required by law to have filed prior to the date of this Agreement, has paid or caused to be paid all taxes, assessments, and other governmental charges that were due and payable prior to the date of this Agreement, and has made adequate provision for the payment of such taxes, assessments, or other charges accruing but not yet payable, and the Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or charges not provided for on its or any Borrower Subsidiary’s books.
3.13 Compliance With Law. Except to the extent that the failure to comply would not materially interfere with the conduct of its business, the Borrower and each Borrower Subsidiary has complied with all applicable laws in respect of: (a) restrictions, specifications, or other requirements pertaining to products that it sells or to the services it performs; (b) the conduct of its business; and (c) the use, maintenance, and operation of its properties.
3.14 Performance of Other Agreements. The Borrower is not in default in any manner under any other agreements to which the Borrower is a party which would materially and adversely affect its ability to: (a) perform its Obligations under this Agreement or other Loan Documents, (b) preserve and maintain the Collateral granted as security for the Credit Facility, or (c) perform or fulfill of any of its obligations, covenants or conditions contained in any agreement or instrument related to the Collateral to which the Borrower is a party or by which the Borrower or any of its properties is bound. No Borrower Subsidiary is in default in any manner under any other agreements to which it is a party which would materially and adversely affect its operations.
3.15 Title to Properties and Solvency of the Borrower. The Borrower and each Borrower Subsidiary has good and marketable title to all of its properties and assets. The Borrower is not insolvent (as defined in Section 101(32) of Title 11 of the United States Code) and will not be rendered so insolvent as a result of the transactions contemplated hereby or referred to herein.
3.16 Relationship Between Borrower and Subsidiaries. The Borrower is the parent company of and owns one hundred percent (100%) of the voting stock of KLC. KLC owns one hundred percent (100%) of the voting stock of KRC.
3.17 Borrower Subsidiaries. Each Borrower Subsidiary is a Hawaii corporation duly organized, validly existing and in good standing under the laws of the State of Hawaii; each Borrower Subsidiary is authorized, to the extent required under applicable law, to do business and is in good standing in all other States of the United States and in any other jurisdiction wherein the nature of its business requires such qualification; there is no action required of any Borrower Subsidiary which has not already been taken to enable such Borrower Subsidiary to do business as presently conducted by it in the State of Hawaii and all other States and jurisdictions wherein it owns or leases properties or transacts or is engaged in business.
3.18 True and Complete Copies. All copies of documents heretofore furnished by, or on behalf of, the Borrower to the Lender are true and complete copies of the originals thereof, and all amendments and modifications thereto, and are in full force and effect. There have been no amendments or modifications to any such document except as heretofore disclosed in writing to the Lender.
3.19 Statements and Omissions. No representation or warranty by the Borrower contained in this Agreement or in any certificate or other document furnished by the Borrower pursuant to this Agreement contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made.
IV. AFFIRMATIVE COVENANTS
For so long as the Credit Facility remains in effect or any of the Obligations remains outstanding, the Borrower will, unless otherwise permitted by the Lender in writing:
4.1 Payments. Punctually pay when due all sums which may be due under the Loan Documents.
4.2 Financial Reporting. Furnish or cause to be furnished to the Lender (in each case prepared in accordance with GAAP and in reasonable detail and form approved by the Lender as follows):
(a) For each fiscal quarter commencing with the third quarter of 2016 and continuing thereafter, as soon as practicable and in any event no later than sixty (60) days after the end of such fiscal quarter:
(i) the consolidated balance sheets and statements of shareholders’ equity of the Borrower and the Borrower Subsidiaries as of the end of such fiscal quarter, in comparative form to the figures for the corresponding quarter of the previous fiscal year;
(ii) the consolidated statements of income and expenses and statements of cash flow of the Borrower and the Borrower Subsidiaries for such fiscal quarter, in comparative form to the figures for the corresponding quarter of the previous fiscal year; and
(iii) Borrower prepared rent rolls and operating statements for the Mortgaged Property.
(b) For each fiscal year commencing with fiscal year 2016 and continuing thereafter, as soon as practicable and in any event no later than ninety (90) days after the end of such fiscal year:
(i) the consolidated balance sheet and statements of shareholders’ equity of the Borrower and the Borrower Subsidiaries as of the end of such fiscal year, in comparative form to the figures for the previous fiscal year; and
(ii) the consolidated statements of income and expenses and statements of cash flow of the Borrower and the Borrower Subsidiaries, in comparative form to the figures for the previous fiscal year;
all in reasonable detail and accompanied by an unqualified opinion (or an opinion thereon reasonably satisfactory to the Lender) of independent public accountants of recognized national standing selected by the Borrower and satisfactory to the Lender, which opinion shall not contain an adverse report, a disclaimer, or be qualified or limited because of any restricted or limited examination by such accountant of any material portion of the Borrower’s or any Borrower Subsidiary’s records and shall state that such financial statements present fairly the financial condition of the Borrower and the Borrower Subsidiaries as of the dates indicated and the results of their operations and cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise stated therein) and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards.
(c) Concurrent with the quarterly and annual statements required under Sections 4.2(a) and 4.2(b), a compliance certificate (a “Compliance Certificate”) of the chief financial officer or the president of the Borrower in the form attached hereto as Schedule 4.2 certifying, among other things, the Minimum Fixed Charge Coverage Ratio, Minimum Liquidity, Maximum Liabilities and Debt Yield of the Borrower and the Borrower Subsidiaries, in each case determined as provided in this Agreement, all in reasonable detail and certified by the chief financial officer of the Borrower that they fairly present the financial condition of the Borrower and the Borrower Subsidiaries as at the dates indicated and the results of their operations and changes in their financial position for the periods indicated, subject to changes resulting from audit and normal year-end adjustments. The Compliance Certificate shall also certify: (a) the financial ratios and other requirements referred to in Section 4.15 hereinbelow and set forth such calculations thereof as may be reasonably necessary to confirm the same; (b) the representations and warranties set forth in Article III herein as being true and correct on and as of such date; and (c) that no Default or Event of Default has occurred and is continuing. The Borrower shall provide a revised Compliance Certificate (each, a “Recertification”) within five (5) Business Days after discovery of any error in a previously submitted Compliance Certificate or concurrently with the submittal of audited annual financial statements pursuant to Section 4.2(b) if the audited statements are materially different than the Borrower‑prepared financial statements for the last fiscal quarter of the fiscal year.
(d) For each fiscal year commencing with fiscal year 2016 and continuing thereafter, as soon as practicable and in any event no later than the last day of the first fiscal calendar of such fiscal year: (i) with respect to the Borrower, 2‑year operating and cash flow projections.
(e) Copies of all other detailed financial reports or management letters submitted by certified independent accountants to the Borrower or any Borrower Subsidiary in connection with any audit or examination, annual, interim or otherwise, all promptly upon receipt in final form; and
(f) From time to time, with reasonable promptness, such further information regarding the business, affairs and financial condition of the Borrower or the Borrower Subsidiaries as the Lender may reasonably request.
4.3 Existence/Chief Executive Office. Preserve and maintain the Borrower’s and Borrower Subsidiaries’ legal existence and timely file all necessary and appropriate documents and exhibits and pay all appropriate fees and charges in connection therewith, and provide the Lender with forty-five (45) days’ prior written notice of any change in the Borrower’s or any Borrower Subsidiary’s name or type of entity or State of legal formation or the state of the Borrower’s or any Borrower Subsidiary’s chief executive office.
4.4 Observance of Laws. Comply, and cause each Borrower Subsidiary to comply, in all material respects with the requirements of all applicable laws, rules, regulations, orders, writs, judgments, decrees, determinations and awards of any Government Authority, non-compliance with which would materially adversely affect it or its operations or the Borrower’s ability to perform its obligations under the Loan Documents, and obtain and maintain all permits, memberships, franchises, contracts and licenses required, and all trademarks, trade names and trade name rights, patents, patent rights and fictitious name rights necessary for the Borrower and the Borrower Subsidiaries to conduct the business they operate during the term of this Agreement without conflict with the rights of others.
4.5 Insurance. Insure and keep insured, and cause each Borrower Subsidiary to insure and keep insured, with good and responsible insurance companies, all of their property of an insurable nature (including, without limitation, all buildings, equipment and fixtures) against damage, fire and other casualties in such manner and to the extent that like properties are usually insured by companies in similar businesses, and insure and keep insured and cause each Borrower Subsidiary to insure and keep insured, at all times with good and responsible insurance companies against liability on account of damage to Persons or property as reasonably required by the Lender, taking into account the nature of the Borrower’s and Borrower Subsidiaries’ business and operations, risk history, and financial condition, and also against liability under all applicable workmen’s compensation laws. The Borrower shall, promptly on demand, furnish the Lender with certificates (ACORD Form 27 or its substantial equivalent) and copies of endorsements (waiver of subrogation, notice of cancellation, additional insured, and mortgagee/loss payable) evidencing the required insurance coverage, and provide the Lender with renewal certificates at least ten (10) Business Days prior to the expiration date of each policy for which a certificate was previously furnished. If the Borrower or any Borrower Subsidiary fails to maintain the required insurance, the Lender is authorized to obtain the insurance at the Borrower’s expense.
4.6 Inspections of Property, Books and Records. Permit any authorized representative(s) designated by the Lender, at the Lender’s expense, to visit and inspect any of the properties of the Borrower and the Borrower Subsidiaries, including the Borrower’s and Borrower Subsidiaries’ financial and accounting records, and to make copies and take extracts therefrom, and to discuss the affairs, finances and accounts of the Borrower and Borrower Subsidiaries with the Borrower’s officers and independent public accountants, all upon reasonable notice and in such reasonable times during normal business hours, as often as may be reasonably requested.
4.7 Accounting Records. Keep, and cause the Borrower Subsidiaries to keep, accurate and proper books of record and account in which full, true and correct entries, in conformity with GAAP (and in conformity with all applicable laws), shall be made in all material respects of all dealings and transactions relating to their respective business and activities.
4.8 Maintenance; Preservation of Properties. Maintain, preserve and keep, and cause Borrower Subsidiaries to maintain, preserve and keep, their respective equipment and properties and every part thereof in good repair, working order and condition and in compliance with all applicable federal, state and local laws, statutes and ordinances, and from time to time make all needed and appropriate repairs, renewals, replacements, additions, betterments and improvements thereto so that at all times the efficiency thereof shall be fully preserved and maintained.
4.9 Taxes. Duly pay and discharge or cause to be paid and discharged, when due, all taxes, assessments and other charges of Government Authorities imposed upon Borrower, the Borrower Subsidiaries and their respective properties, or any part thereof or upon the income or profits therefrom, as well as all claims for labor, materials or supplies which if unpaid might by law become a lien or charge upon any of their respective properties, except such of the foregoing as are being diligently contested in good faith and reserved against on the respective balance sheets, if and to the extent required under GAAP, and by appropriate proceedings. If the Borrower or any Borrower Subsidiary receives a notice of assessment and has not reserved against it, the Borrower shall promptly give notice to the Lender of receipt thereof.
4.10 Governmental Authorizations. Maintain, preserve and protect all Governmental Authorizations, and comply in all respects with the terms of all Governmental Authorizations, and promptly (and in any event within ten (10) Business Days) notify the Lender upon obtaining knowledge of: (a) the termination, cancellation, material modification, lapse, non‑renewal or other loss of any Government Authorization relating to Collateral or operation of the Borrower’s or any Borrower Subsidiary’s business; and (b) any proceedings to which the Borrower or any Borrower Subsidiary is a party which involves a material risk of any matters set forth in clause (a) immediately preceding; and promptly furnish the Lender with copies of and information with respect to any new Governmental Authorizations relating to the Collateral or operation of the Borrower’s or any Borrower Subsidiary’s business issued to or acquired by the Borrower or any Borrower Subsidiary.
4.11 Reportable Event. As soon as possible and, in any event, within twenty (20) days after the Borrower knows or has reason to know that a Reportable Event has occurred, that an accumulated funding deficiency has been incurred or an application may be or has been made to the Secretary of the Treasury for a waiver of the minimum funding standard under Section 412 of the Code with respect to a Plan, that a Plan has been or may be terminated, that proceedings may be or have been instituted to terminate a Plan, or that the Borrower or any ERISA Affiliate of the Borrower will or may incur any liability to or on account of a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA, deliver to the Lender a certificate of the chief financial officer of the Borrower setting forth details as to such occurrence and action, if any, which it is required or proposes to take, together with any notices required or proposed to be filed with or by it, the ERISA Affiliate, the PBGC or the plan administrator with respect thereto. If requested by the Lender, the Borrower will furnish to the Lender a copy of the annual report of each Plan (Form 5500 series), if any, required to be filed with the Internal Revenue Service. Copies of annual reports or any notices required under this Agreement to be delivered to the Lender shall be delivered no later than thirty (30) days after the later of the date such report or notice has been filed with the Internal Revenue Service or the PBGC or the date of receipt thereof. If the Borrower does not maintain a Plan, but shall at any time adopt or become obligated to contribute to a Plan, it shall comply with the foregoing provisions of this Section 4.11.
4.12 Notices. Promptly give notice to the Lender of: (a) the occurrence of any Default or any Event of Default, including a certificate of an appropriate officer or officers of the Borrower specifying: (i) the nature of such Default or Event of Default; (ii) the period of the existence thereof; and (iii) the actions that the Borrower proposes to take with respect thereto; (b) any change in the name or organizational structure of the Borrower or any Borrower Subsidiary; (c) any uninsured loss suffered by the Borrower or any Borrower Subsidiary through fire, theft, liability or property damage exceeding $100,000; (d) any pending or threatened litigation affecting the Borrower or any Borrower Subsidiary or any Collateral; (e) any change in the Borrower’s or Borrower Subsidiaries’ principal place of business; and (f) change in the location of any Collateral.
4.13 Agreements. Duly and timely perform, within all required time periods (after giving effect to any applicable grace periods), all of Borrower’s obligations and enforce all leases to which the Borrower is a party, when the failure to so perform and enforce would materially adversely affect the Borrower or its ability to perform its obligations under the Loan Documents.
4.14 Supplemental Disclosure. From time to time as may be necessary (in the event that such information is not otherwise delivered by the Borrower to the Lender pursuant to this Agreement), disclose to the Lender in writing any material matter hereafter arising which, if existing or occurring at the date of this Agreement, would have been required to be set forth or described by the Borrower in the Loan Documents (including all appendices, schedules and exhibits thereto) or which is necessary to correct any information set forth or described by the Borrower hereunder or in connection herewith which has been rendered inaccurate thereby.
4.15 Financial Condition. Maintain the financial condition of the Borrower in accordance with GAAP, and as set forth in the applicable Compliance Certificate, as follows:
(a) Fixed Charge Coverage Ratio. The Borrower shall at all times during the Credit Facility maintain a Minimum Fixed Charge Coverage Ratio of not less than 1.0 to one. The Borrower’s Minimum Fixed Charge Coverage Ratio shall be tested quarterly as of the end of each fiscal quarter and shall be determined on a rolling basis.
(b) Minimum Liquidity, The Borrower and Borrower Subsidiaries shall on a consolidated basis satisfy the following Minimum Liquidity amounts as of each of the following dates:
|
As of |
Required Minimum Liquidity |
|||
|
12/31/16 |
$ | 500,000 | ||
|
6/30/17 |
$ | 1,000,000 | ||
|
12/31/17 |
$ | 1,500,000 | ||
|
12/31/18 |
$ | 2,000,000 | ||
|
12/31 of any calendar year thereafter |
$ | 2,000,000 | ||
(c) Maximum Liabilities. At all times during the Credit Facility, the Borrower’s and Borrower Subsidiaries’ consolidated Maximum Liabilities shall not exceed Forty‑Five Million Dollars ($45,000,000.00). Maximum Liabilities shall be tested quarterly as of the last day of each fiscal quarter.
(d) Debt Yield. The Borrower shall at all times maintain a minimum Debt Yield of not less than nine percent (9%). Debt Yield shall be tested annually as of December 31 of each year, based on Primary NOI and the outstanding principal balance of the Credit Facility.
In the event that the Borrower fails at any time to satisfy the Debt Yield requirement, it shall have the right to (i) repay the Credit Facility (subject to the requirements of Section 1.5(c)) or (ii) reduce the Revolving Loan Commitment, in each case to a level sufficient to meet the Debt Yield requirement.
4.16 [RESERVED]
4.17 Sansei Subordination Nondisturbance and Attornment Agreements. Diligently pursue the Sansei SNDA and keep the Lender fully apprised of the Borrower’s progress in obtaining the Sansei SNDA, including any communications sent or received with respect to the Sansei SNDA. The Borrower shall have sole responsibility for, and shall timely satisfy, all terms and conditions of delivery of the Sansei SNDA. Any failure to obtain the Sansei SNDA and to satisfy all terms and conditions of delivery thereof by September 1, 2016, shall be considered an Event of Default.
4.18 Compliance with USA PATRIOT Act. Use good faith and commercially reasonable efforts to comply (and cause the Borrower Subsidiaries and the Borrower’s and Borrower Subsidiaries’ officers and directors, and any direct or indirect owner of Borrower, to comply) with the USA PATRIOT Act (Title III of Pub. L. 107-56, signed into law October 26, 2011) (the “Patriot Act”), and all applicable requirements of governmental authorities having jurisdiction over the Borrower, the Borrower Subsidiaries, and the Borrower’s and Borrower Subsidiaries’ officers and directors, and any direct or indirect owner of the Borrower, including those relating to money laundering and terrorism. In the event that the Borrower or any Borrower Subsidiary fails to comply with this Section 4.18 or with the Patriot Act or with any such requirements of governmental authorities, then the Lender may, at its option, cause the Borrower or such Borrower Subsidiary to comply therewith, and any and all reasonable costs and expenses incurred by the Lender in connection therewith shall be payable by the Borrower to the Lender on demand, and shall be secured by the Loan Documents.
4.19 Letter of Credit Collateral after the Maturity Date. At least thirty (30) days prior to the Maturity Date, in the event that there are any outstanding Letters of Credit scheduled to expire after the Maturity Date as permitted under this Agreement, the Borrower shall either (a) make arrangements satisfactory to the Lender to extend the Maturity Date, or (b) deposit with the Lender cash or other acceptable collateral (in Lender’s reasonable discretion) in an amount equal to 100% of the L/C Exposure (the “L/C Collateral”) so that all outstanding Letters of Credit will be fully secured by the L/C Collateral on the Maturity Date and upon termination of the Credit Facility pursuant to collateral documents in form and substance reasonably acceptable to the Lender and Issuing Bank.
4.20 Loan to Value.
(a) The Borrower shall maintain a Loan to Value Ratio of no more than sixty-five percent (65%) (the “Loan to Value Ratio Cap”); provided, that, in the event that the Borrower can (a) maintain a Loan to Value Ratio equal to or below the Loan to Value Ratio Cap and (b) satisfy the conditions of Section 4.15(d) above, in each case without including the Appraisal Value of any one (1) piece of Mortgaged Property, the Borrower may elect to release such Mortgaged Property as Collateral.
(b) In the event that the Borrower fails at any time to satisfy the Loan to Value Ratio requirement in clause (a) above, it shall have the right to (i) repay the Credit Facility (subject to the requirements of Section 1.5(c)) or (ii) reduce the Revolving Loan Commitment, in each case to a level sufficient to meet such Loan to Value Ratio requirement.
V. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement remains in effect, the Note remains outstanding and unpaid or any other amount is owing to the Lender hereunder, thereunder or under any Loan Document, the Borrower shall not, and shall not permit any Borrower Subsidiary, directly or indirectly, to take any of the following actions without the prior written consent of the Lender (which consent may be given or withheld in the discretion of the Lender):
5.1 Limitation on Liens. Create, incur, assume or suffer to exist any Liens upon any of the Collateral or upon any of their respective property, assets or revenues, real or personal, tangible or intangible, whether now owned or hereafter acquired, or make any investment in Capital Expenditures, except (a) Liens in the ordinary course of the Borrower’s business, including easements and licenses, and (b) Liens associated with Capital Expenditures permitted under Section 5.3 below subject to the limitations contained therein and provided no Default or Event of Default has occurred or is continuing at the time of such Lien and after giving effect to such Lien no Default or Event of Default shall exist.
5.2 Other Indebtedness. Create, incur or permit any liabilities resulting from any Indebtedness except as set forth in subsections (a) and (b) below, provided no Default or Event of Default has occurred or is continuing at the time of such Indebtedness and after giving effect to such Indebtedness no Default or Event of Default shall exist:
(a) Indebtedness incurred in the ordinary course of the Borrower’s or a Borrower Subsidiary’s business, including equipment leases in the ordinary course of business; and
(b) Indebtedness associated with Capital Expenditures permitted under Section 5.3 below, subject to the limitations contained therein.
5.3 Investments, Acquisitions and Capital Expenditures. Make or allow any Acquisition, Investment or Capital Expenditure or enter into any agreement to make any Acquisition, Investment, or Capital Expenditure, except Capital Expenditures incurred in the ordinary course of the Borrower’s or a Borrower Subsidiary’s business or that do not exceed $500,000.00, and provided no Default or Event of Default has occurred or is continuing at the time of such Capital Expenditure and after giving effect to such Capital Expenditure, no Default or Event of Default shall exist.
5.4 Restriction on Fundamental Changes. Enter into any transaction of merger, spinoff, or consolidation, directly or indirectly, whether by operation of law or otherwise, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any material part of its respective business, property or fixed assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any Person, except that:
(a) any Borrower Subsidiary may be merged or consolidated with or into the Borrower or any wholly-owned Borrower Subsidiary; provided that, in the case of such a merger or consolidation, the Borrower or such wholly-owned Borrower Subsidiary shall be the continuing or surviving corporation;
(b) the Borrower and each Borrower Subsidiary may sell or otherwise dispose of real property inventory in the ordinary course of business, subject to obtaining any required release in accordance with the terms of this Agreement; and
(c) the Borrower and each Borrower Subsidiary may sell or otherwise dispose of obsolete or worn out property in the ordinary course of business;
provided that, in no event shall the Borrower or any Borrower Subsidiary sell, assign, transfer, pledge or otherwise grant any Lien to any Person on any of its property, assets or revenues, real or personal, tangible or intangible, whether now owned or hereafter acquired, in which the Borrower has granted, or hereafter may grant, a Lien to the Lender. Any exceptions provided under subsections (a) through (c) above are conditioned upon no Default or Event of Default occurring or continuing at the time of such exception and after giving effect to such exception, that no Default or Event of Default shall exist.
5.5 Restricted Payments. Make or agree to make any dividend payment or other distribution or any loan to any shareholder or agree to repurchase the shares of any shareholder without the Lender’s consent, which consent shall not be unreasonably withheld (any payment in respect of any such dividend, distribution, loan or repurchase without the Lender’s consent being referred to herein as a “Restricted Payment”), except that distributions and dividends to the Borrower and redemptions of the Borrower’s interest in the Borrower Subsidiaries shall be allowed provided that no Default or Event of Default has occurred and is continuing at the time of such transaction, and provided, further, that after giving effect to such transaction, no Default or Event of Default shall exist.
5.6 Events of Default. Take or omit to take any action, which act or omission would constitute: (a) a default or an event of default pursuant to, or noncompliance with any of, the terms of any of the Loan Documents; or (b) a default or an event of default pursuant to, or non-compliance with, any other contract, agreement, lease, mortgage deed of trust or instrument to which the Borrower or any Borrower Subsidiary is a party or by which any of them or any of their respective property is bound, and which alone or in the aggregate with all other such defaults, events of default or non-compliance would materially adversely affect the business of the Borrower or any Borrower Subsidiary or the Borrower’s ability to perform its obligations under the Loan Documents.
5.7 Sale, Mortgage or Pledge of Mortgaged Property or Collateral. Sell, mortgage, pledge, transfer, hypothecate, assign, encumber or convey the Mortgaged Property or the Collateral, or any portion thereof or interest therein, or any other portion of the Borrower’s or Borrower Subsidiaries’ assets without the prior written consent of the Lender.
5.8 Priority. Permit any of the obligation of the Borrower or any Borrower Subsidiary under or otherwise in respect of this Agreement, the Note, the Loan Documents, and the Credit Facility and any and all other amounts due hereunder or thereunder to rank, as to payment and security, in pari passu with or lower in priority than any other Indebtedness other than Indebtedness permitted under Section 5.2, whether now existing or incurred hereafter, including indebtedness for borrowed money or under guarantees or in respect of any indenture, contract, agreement or other instrument or by which the Borrower or any Borrower Subsidiary or any of their respective property is bound, whether now existing or incurred hereafter.
5.9 Business. Materially change the character of the Borrower’s or any Borrower Subsidiary’s current business, or engage in any type of business other than their respective current business.
5.10 Use of Funds. Use any of the proceeds of the Credit Facility for any purpose except as set forth in Section 1.1(b) of this Agreement.
5.11 Guaranties. Guarantee or become liable in any way as a surety, endorser (other than in the ordinary course of business), or accommodation endorser or otherwise for the debt or obligation of any Person.
VI. THE BANK’S RIGHTS UPON DEFAULT
6.1 Events of Default. Each of the following events is an “Event of Default” under this Agreement:
(a) Transfers.
(i) Any sale, conveyance, pledge, assignment, disposition or other transfer of corporate stock or membership interests of, or the creation or issuance of new stock or membership interests by any other Borrower Subsidiary, in one or a series of transactions which results in any of such Borrower Subsidiary’s corporate stock or membership interest being vested in parties other than the Borrower (any such sale, conveyance, pledge, assignment, disposition, transfer or other action being referred to as a “Transfer”), without the Lender’s prior written consent, which consent may be given or withheld at Lender’s sole discretion.
(ii) Prior to issuing any written consent or denial of consent, the Lender shall have the right (but not the obligation) to request, and the Borrower shall provide, at the Borrower’s sole cost and expense, any information Lender deems necessary to evaluate the proposed Transfer, including, but not limited to, any reports, statements, studies, appraisals, agreements, commitments, and other documents in the Borrower’s possession or control.
(iii) A Transfer shall include, but not be limited to: (a) an installment sales agreement wherein a stockholder or member agrees to sell all or any portion of the corporate stock or membership interest of the Borrower or a Borrower Subsidiary for a price to be paid in installments; (b) a sale, assignment or other transfer of, or the grant of a security interest in, the corporate stock or membership interest of the Borrower or a Borrower Subsidiary; (c) if a stockholder is a corporation, any merger, consolidation, or a sale or pledge of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions, by which such corporation’s stock shall be vested in a party or parties who are not its shareholders; (d) if a stockholder or member is a limited or general partnership or joint venture, any merger or consolidation or the change, removal or addition of a general partner or the sale or pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the sale or pledge of limited partnership interests or the creation or issuance of new limited partnership interests in one or a series of transactions, by which such limited partnership interests shall be vested in a party or parties who are not limited partners; (e) if a stockholder or member is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the sale or pledge of non‑managing membership interests or the creation or issuance of new non‑managing membership interests in one or a series of transactions, by which such non‑managing membership interests shall be vested in a party or parties who are not now non‑managing members; (f) if a stockholder or member is a trustee or nominee trustee of a trust, any merger, consolidation or the sale or pledge of the legal or beneficial interest in such trust or the creation or issuance of new legal or beneficial interests in one or a series of transactions, by which such beneficial or legal interests shall be vested in a party or parties who are not now legal or beneficial owners; or (g) the conversion of a stockholder or member from its present form of business organization to any other form of business organization, including, without limitation, a corporation, S‑corporation, general partnership, limited partnership, limited liability partnership, limited liability company, or sole proprietorship.
(b) Representations, etc. Any certificate furnished by the Borrower or any Borrower Subsidiary to the Lender pursuant hereto shall prove to have been incorrect in any material respect or any of the representations and warranties made by the Borrower or any Borrower Subsidiary herein or in connection herewith shall prove to have been incorrect in any material respect when made, or shall hereafter become incorrect in any material respect.
(c) Payments Under Loan Documents. The Borrower shall fail to pay within ten (10) days of the due date: (a) any payment of principal on the Note; (b) any payment of interest on the Note; or (c) any other amounts payable by the Borrower hereunder or under any of the other Loan Documents.
(d) Defaults Under Other Agreements. The Borrower or any Borrower Subsidiary shall default in the payment of any Indebtedness beyond any period of grace provided with respect thereto or the Borrower shall default in the performance or observance of any other agreement, term or condition contained in any instrument, agreement or indenture pursuant to which any such Indebtedness is created or by which it is secured for such period of time as would cause, or permit the holder or holders of such obligations (or a trustee or other Person on behalf of such holder or holders) to cause, such obligation to become due prior to its stated maturity or a portion thereof to be prepaid (other than by a regularly scheduled required prepayment) prior to such stated maturity.
(e) Bankruptcy, etc. The Borrower or any Borrower Subsidiary shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled “Bankruptcy” as now or hereafter in effect or any successor thereto (the “Bankruptcy Code”); or an involuntary case is commenced against the Borrower or any Borrower Subsidiary under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or other similar law of any jurisdiction now or hereafter in effect, and relief is ordered against the Borrower or such Borrower Subsidiary or the petition is not dismissed within sixty (60) days after the commencement of such case; or a trustee (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property the Borrower or any Borrower Subsidiary; or the Borrower or any Borrower Subsidiary commences any other proceeding under any reorganization, arrangement, readjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to it; or there is commenced against the Borrower or any Borrower Subsidiary any such proceeding which remains undismissed for a period of sixty (60) days; or the Borrower or any Borrower Subsidiary is adjudicated insolvent or bankrupt; or the Borrower or any Borrower Subsidiary fails to controvert in a timely manner any such case under the Bankruptcy Code or any such proceeding, or any order of relief or other order approving any such case or proceeding is entered; the Borrower or any Borrower Subsidiary by any act or failure to act indicates its consent to, approval of or acquiescence in any such case or proceeding or in the appointment of any custodian or the like for it or any substantial part of its property or suffers any such appointment to continue undischarged or unstayed for a period of sixty (60) days; or the Borrower or any Borrower Subsidiary makes a general assignment for the benefit of creditors; or any action is taken by the Borrower or any Borrower Subsidiary for the purpose of effecting any of the foregoing.
(f) Loan Documents. The Borrower shall fail to perform in full or observe in full any term, covenant or agreement on its part to be performed or observed in Sections 4.3, 4.15, 5.1, 5.2, 5.3, 5.4, 5.5, 5.7, 5.8, 5.9, 5.10 or 5.11 of this Agreement in accordance with the terms thereof.
(g) [RESERVED].
(h) Sansei SNDA. The Borrower fails to deliver either the Sansei SNDA by the dates specified in Section 4.17.
(i) Security. Any of the mortgages, guarantees and security agreements now or hereafter existing which secure the obligations of the Borrower under this Agreement, the Note, and the other Loan Documents shall be deemed not to be legal, valid, binding and/or enforceable in accordance with their respective terms or any party thereto (other than the Lender) shall deny all or any obligation or liability thereunder.
(j) ERISA. Any member of the Controlled Group of the Borrower shall fail to pay when due an amount or amounts aggregating in excess of U.S. $1,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of U.S. $3,000,000 (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against any member of the Controlled Group to enforce Section 515 of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC Material Plan must be terminated.
(k) Material Adverse Change. There shall be a material adverse change in the condition (financial or otherwise) of the Borrower or any Borrower Subsidiary which shall materially adversely affect the ability of the Borrower to perform its obligations under the Loan Documents.
(l) Termination; Dissolution; Etc. Any action or proceeding shall have been commenced to terminate or dissolve the Borrower or any Borrower Subsidiary or any petition or application shall have been filed to initiate any such termination or dissolution, or the Borrower or any Borrower Subsidiary shall otherwise be deemed to have terminated or dissolved.
(m) Other Loan Documents; Other Terms. (i) An “Event of Default” under and as defined in any of the other Loan Documents shall have occurred; or (ii) the Borrower shall otherwise fail to observe or perform any other term, covenant or agreement contained in this Agreement (other than the Events of Default described in any other subsection of this Section 6.1) or any of the other Loan Documents on its part to be observed or performed, and any such failure shall remain unremedied for any applicable grace period provided therefor, or if no grace period is so provided, then for a period of thirty (30) days after the earlier of: (A) the date written notice thereof shall have been given to the Borrower by the Lender; and (B) the date the Borrower should have delivered to the Lender a written notice of the occurrence of a Default or Event of Default in respect thereof pursuant to Section 4.12 hereinabove.
(n) Collateral. Any Collateral or any other property, assets or revenues or any portion thereof, real or personal, tangible or intangible, whether now owned or hereafter acquired, in which the Borrower has granted, or hereafter may grant, a Lien to the Lender: (i) is sold, transferred, hypothecated, assigned or otherwise conveyed without the Lender’s prior written consent, except as specifically permitted in this Agreement or the other Loan Documents; or (ii) is seized, attached, executed, forfeited, confiscated, levied upon under any legal process or under any claim of legal right, or subject to forfeiture proceedings under any state or federal laws, and such seizure, forfeiture, confiscation, attachment or levy is not released or discharged; or (iii) is destroyed, lost or damaged and such destruction, loss or damage is not covered by insurance and replaced within thirty (30) days of such destruction, loss or damage.
(o) Termination of Governmental Authorizations. Any Governmental Authorization: (a) which is material to the business or operations of the Borrower or any Borrower Subsidiary; or (b) the loss of which could materially adversely affect the ability of the Borrower to perform its Obligations under this Agreement or any of the Loan Documents, shall be suspended, terminated, revoked, shall expire without renewal on or before its expiration date, or shall become subject to any injunction or order which has not been stayed and which may, in the reasonable judgment of the Lender, materially adversely affect the business or operations of the Borrower or its ability to perform its Obligations under this Agreement or any other Loan Document.
(p) Judgment. Any final, uninsured judgment shall be rendered against the Borrower or any Borrower Subsidiary for the payment of money in an amount which alone or with other outstanding final judgments exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate and:
(i) such judgment shall not be discharged or fully bonded against within thirty (30) days; or
(ii) within thirty (30) days after entry of such judgment, execution shall not be stayed pending appeal; or
(iii) such judgment shall not be discharged within thirty (30) days after expiration of any such stay.
6.2 The Lender’s Rights. If an Event of Default shall occur and be continuing the Lender shall have, in addition to any and all other rights and remedies, legal or equitable, available to the Lender under any and all of the Loan Documents or at law, the following additional rights and remedies:
(a) The absolute right to deny to the Borrower any further disbursement of the Credit Facility proceeds or other funds (the Lender’s obligation to extend any further credit to the Borrower shall immediately terminate);
(b) The right, at the option of the Lender, to declare, without notice, the entire principal amount and accrued interest under the Credit Facility, plus any fees and charges reasonably incurred by the Lender under any of the Loan Documents, immediately due and payable;
(c) The right, at the option of the Lender, to charge interest on any principal amount outstanding under this Agreement and also in respect of overdue interest on any Revolving Borrowing at the Default Rate; and
(d) The right to the ex parte appointment without bond of a receiver, without regard to the value of any collateral or solvency of any party liable for payment, observance or performance of the Obligations and regardless of whether the Lender have any adequate remedy at law.
The Borrower hereby waives to the full extent that it may lawfully do so, the benefit of all such laws and any and all rights to have any of the property, assets or revenues or any portion thereof, real or personal, tangible or intangible, whether now owned or hereafter acquired, in which the Borrower has granted, or hereafter may grant, a Lien to the Lender marshaled upon any foreclosure of such property, assets or revenues and agrees that after the occurrence of any Event of Default, the Lender may, in its sole discretion, proceed to enforce its rights under the Loan Documents and to foreclose on any or all of such property, assets or revenue, irrespective of the differing nature thereof or whether or not the same constitutes real or personal property.
VII. MISCELLANEOUS
7.1 Further Assurance. From time to time within five (5) Business Days after the Lender’s demand, the Borrower will execute and deliver such additional documents, take such further action and provide such additional information as may be reasonably requested by the Lender to carry out the intent of this Agreement and the other Loan Documents and to be informed of Borrower’s status and affairs.
7.2 Accounting Principles. Except as otherwise specifically provided in this Agreement, all statements to be prepared and determinations to be made under this Agreement, including (without limitation) those pursuant to Article IV shall be prepared and made in accordance with GAAP.
7.3 Enforcement and Waiver by the Lender. The Lender shall have the right at all times to enforce the provisions of the Loan Documents as they may be amended from time to time, in strict accordance with their terms, notwithstanding any conduct or custom on the part of the Lender in refraining from so doing at any time or times. The failure of the Lender at any time or times to enforce its rights under such provisions, strictly in accordance with the same, shall not be construed as having created a custom in any way or manner contrary to specific provisions of the Loan Documents or as having in any way or manner modified or waived the same. All rights and remedies of the Lender are cumulative and concurrent and the exercise of one right or remedy shall not be deemed a waiver or release of any other right or remedy.
7.4 Expenses; Indemnity.
(a) The Borrower agrees to pay all reasonable out-of-pocket expenses of the Lender incurred in connection with the preparation, execution, delivery, enforcement and administration of this Agreement, the Note, and the Loan Documents and the making and repayment of the Credit Facility, including, without limitation the reasonable legal fees and expenses of the Lender;
(b) The Borrower further agrees to pay, and to save the Lender harmless from all liability for, any stamp or other documentary taxes which may be payable in connection with the Borrower’s execution or delivery of this Agreement and the other Loan Documents, its borrowings hereunder, or its issuance of the Note, or of any other instruments or documents provided for herein or delivered or to be delivered by the Borrower hereunder or in connection herewith;
(c) Whether or not the transactions contemplated hereby shall be consummated: the Borrower shall pay and indemnify and hold harmless the Lender and its officers, directors, employees, counsel, agents and attorneys-in-fact (each, an “Indemnified Person”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including all fees and disbursements of counsel, the allocated costs of internal legal services, and disbursements of internal legal counsel) of any kind or nature whatsoever (except for such Indemnified Person’s own gross negligence or willful misconduct) with respect to and to the extent arising from the Borrower’s or any Borrower Subsidiary’s execution, delivery, enforcement or performance of this Agreement and any other Loan Documents, or the Borrower’s use of the proceeds of the Credit Facility, or arising from the action or failure to act of the Borrower, the Borrower Subsidiaries, or their respective officers, directors, employees, counsel, agents or attorneys-in-fact; and
(d) All obligations provided for in this Section 7.4 shall survive any termination of this Agreement.
7.5 Notices. All notices, requests, demands or documents that are required or permitted to be given or served hereunder shall be in writing and personally delivered, or sent by registered or certified mail addressed, or by email with confirming hard copy of such email sent, as follows:
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To Borrower at: |
Maui Land & Pineapple Company, Inc. 500 Office Road Lahaina, Hawaii 96761 Attn: Wade K. Kodama Email: wkodama@kapalua.com |
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with copy to: |
Stradling Yocca Carlson & Rauth LLP 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Attention: Christopher D. Ivey Email: CIvey@stradlinglaw.com |
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To Lender at: |
First Hawaiian Bank 999 Bishop Street Honolulu, Hawaii 96813 Attn: Corporate Banking Division, Coby Barbata Email: cbarbata@fhb.com |
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with copy to: |
Goodsill Anderson Quinn & Stifel 999 Bishop Street, Suite 1600 Honolulu, Hawaii 96813 Attention: Joseph A. Dane, Esq.; Trent K. Miyashiro, Esq. Email: jdane@goodsill.com; tmiyashiro@goodsill.com |
The addresses may be changed from time to time by the addressee by serving notice as heretofore provided. Notices shall be effective, (i) if sent by e-mail, on the day sent, if sent before 5:00 p.m. Hawaii Standard Time, or on the next Business Day, if sent after 5:00 p.m. Hawaii Standard Time, in each case, (ii) if sent by nationally recognized private courier, on the next Business Day, (iii) if mailed, three Business Days after mailing or four Business Days if personally delivered, when delivered
The Borrower shall and does hereby hold the Lender harmless from, and indemnify the Lender against, any loss, cost, expense, claim or demand which may be incurred by or asserted against the Lender by virtue of the Lender acting upon any such notices, requests, demands or documents transmitted in accordance with the above provisions.
7.6 Waiver and Release by the Borrower. To the maximum extent permitted by applicable law, the Borrower:
(a) Waives notice and opportunity to be heard, after acceleration of the indebtedness evidenced by the Loan Documents, before exercise by the Lender of the remedy of setoff or of any other remedy or procedure permitted by any applicable law or by any prior agreement with the Borrower, and, except where specifically required by this Agreement or by any applicable law, notice of any other action taken by the Lender;
(b) Waives presentment, demand for payment, notice of dishonor, and any and all other notices or demands in connection with the delivery, acceptance, performance, or enforcement of this Agreement, and consents to any extension of time, renewals, releases of any person or organization liable for the payment of the Obligations under this Agreement, and waivers or modifications or other indulgences that may be granted or consented to by the Lender in respect of the Credit Facility and other extensions of credit evidenced by this Agreement; and
(c) Releases the Lender and its officers, agents and employees from all claims for loss or damage caused by any act or omission on the part of any of them except willful misconduct or gross negligence.
7.7 Sales and Participations.
(a) The Borrower shall have no right to assign or delegate any of its rights or obligations in the Credit Facility or under the Loan Documents without the prior written consent of the Lender, which the Lender may give or withhold in its sole and absolute discretion.
(b) The Lender may at any time sell, assign, transfer, negotiate, grant participations in, or otherwise dispose of, to any one or more Participants, all or any part of the indebtedness of the Borrower at any time outstanding and held by the Lender under any of the Loan Documents. The Borrower acknowledges and agrees that any such disposition will give rise to an obligation of the Borrower to each Participant and that, in such event, each Participant shall, for all purposes hereof, be entitled to the benefits of the Loan Documents and all other documents, instruments and agreements therein described, as its interest may appear.
(c) The Borrower will, at the Lender’s request, cooperate with and assist in the Lender’s participation effort, including preparation of materials regarding the Collateral and Borrower Subsidiaries and meeting with prospective Participants regarding the Collateral and Borrower Subsidiaries. The Borrower authorizes the Lender to disclose and distribute to prospective Participants such financial and other information concerning the Borrower, the Collateral and Borrower Subsidiaries as the Lender believes advisable in order to arrange participation of the Loan.
(d) The Borrower hereby consents to any and all discussions and agreements heretofore or hereafter made between the Lender and any Participant or prospective Participant regarding the interest rate, fees, and other terms and provisions applicable to the Credit Facility, and to the Lender’s disclosure to any Participant or prospective Participant, from time to time, of such financial and other information pertaining to the Borrower, any Borrower Subsidiary and the Credit Facility as the Lender and such Participant or prospective Participant may deem appropriate (whether public or non-public, confidential or non‐confidential, and including information relating to any insurance required to be carried by the Borrower and any financial or other information bearing on the Borrower’s creditworthiness and the value of any Collateral). The Borrower acknowledges that the Lender’s disclosure of such information to any Participant or prospective Participant constitutes an ordinary and necessary part of the process of effectuating and servicing the Credit Facility.
(e) Further, the Borrower shall, from time to time at the request of the Lender and any Participant, and at no cost to the Borrower, execute and deliver, or cause to be executed and delivered, to the Lender or to such Participant (or any other party as the Lender or such Participant may designate), any and all such further instruments as may in the opinion of the Lender or such Participant be reasonably necessary or desirable to give full force and effect to such participation, including, but not limited to, such estoppel certificates or other instruments as may be requested from the Borrower to evidence the continuing validity of the Loan Documents and the absence of any default by the Lender thereunder; provided, however, that the contents of such instruments shall not, in any way, increase the obligations, liabilities, responsibilities, or burdens of the Borrower under the Loan Documents.
(f) In addition, the Borrower shall furnish to the Lender or any Participant all financial and other information relating to the Credit Facility, the Mortgaged Property, the Collateral, or the Borrower or any Borrower Subsidiary as may be requested by the Lender or such Participant.
(g) Notwithstanding the foregoing, the Borrower acknowledges that no Participant shall be deemed a direct lender or co‑lender with the Lender. In the event the Loan is participated, the Lender, or an entity acceptable to the Lender and the Participants shall serve as administrative agent for all of the Loan Participants. If an administrative agent is appointed, the Lender and the Participants may require that any consent or approval rights of the Lender under the Loan Documents shall be processed thorough the administrative agent.
(h) The Lender or any Participant may at any time pledge or grant a security interest in all or any portion of its rights under this Agreement and the Loan Documents to secure obligations of the Lender or such Participant, including any pledge or grant to secure obligations to a Federal Reserve Bank or to any other agency or instrumentality of the United States of America to support borrowings of federal funds; provided that no such pledge or grant of a security interest shall release the Lender or such Participant from any of its obligations hereunder or substitute any such pledgee or grantee for the Lender or such Participant as a party hereto.
7.8 Applicable Law. The substantive laws of the State of Hawaii shall govern the construction of this Agreement and the rights and remedies of the parties hereto.
7.9 Binding Effect. This Agreement shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns, and shall be binding on the parties hereto and their respective heirs, personal representatives, successors and assigns.
7.10 Merger. This Agreement and the remainder of the Loan Documents constitute the full and complete agreement between the Lender and the Borrower with respect to the Credit Facility, and all prior oral and written agreements, commitments and undertakings shall be deemed to have been merged into the Loan Documents and such prior oral and written agreements, commitments and undertakings shall have no further force or effect except to the extent expressly incorporated in the Loan Documents.
7.11 Amendments; Consents. No amendment, modification, supplement, termination, or waiver of any provision of this Agreement or the other Loan Documents, and no consent to any departure by the Borrower therefrom, may in any event be effective unless in writing signed by the Lender, and then only in the specific instance and for the specific purpose given.
7.12 Severability. If any provision of any of the Loan Documents shall be held invalid under any applicable law, such invalidity shall not affect any other provision of the Loan Documents that can be given effect without the invalid provision, and, to this end, the provisions of the Loan Documents are severable.
7.13 Right of Setoff. In addition to any right now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence of an Event of Default, the Lender is hereby authorized at any time and from time to time, without presentment, demand, protest or other notice of any kind to the Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and any other indebtedness at any time held or owing by the Lender (including, without limitation, by branches and agencies of the Lender wherever located) to or for the credit or account of the Borrower against and on account of the duties, obligations, responsibilities, liabilities of the duties, obligations, responsibilities, liabilities and agreements of the Borrower to the Lender under this Agreement, the Note, or the other Loan Documents and all other claims of any nature or description arising out of or connected with this Agreement, the Note, or any other Loan Document, irrespective of whether or not the Lender shall have made any demand hereunder and although such agreements of the Borrower or claims of the Lender shall be contingent or unmatured.
7.14 Time is of the Essence. Time is of the essence under and in respect of this Agreement.
7.15 Headings. The headings of the various provisions of this Agreement are inserted for convenience of reference only and shall not affect the meaning or construction of any provision.
7.16 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original instrument and all of which shall together constitute one and the same agreement.
7.17 Survival of Representations and Warranties. All representations and warranties contained herein or otherwise made in writing by the Borrower or Borrower Subsidiaries in connection herewith shall survive the execution and delivery of this Agreement, the Note, and the other Loan Documents.
7.18 OFAC Restrictions. The Lender and the Borrower are obligated to comply with the laws and regulations administered by the United States Office of Foreign Asset Control (“OFAC Restrictions”). In order to comply with OFAC Restrictions, the Lender may be required to temporarily suspend processing a transaction, which may result in delayed availability of funds, or may be prohibited from closing a transaction altogether. The Borrower agrees to the foregoing, and further agrees that if the Lender is required by applicable OFAC Restrictions to suspend processing of a transaction, or is prohibited by applicable OFAC Restrictions from closing a transaction, the Lender will not be liable for any damages of any kind or nature (including, without limitation, actual, consequential, special, incidental, punitive, or indirect damages, whether arising out of claims for “lender liability” or any other cause), which the Borrower may suffer or incur in connection with any such suspension of, or failure to close, a transaction.
7.19 USA PATRIOT Act Notice. The Lender hereby notifies the Borrower that, pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Lender, as applicable, to identify Borrower in accordance with the Patriot Act.
7.20 Waiver of Jury Trial and Submission to Venue. The Borrower and each Borrower Subsidiary hereby knowingly, voluntarily and intentionally waives any right it may have to a jury trial in any legal proceeding which may be hereinafter instituted by the Lender or the Borrower or any Borrower Subsidiary to assert any of their respective claims arising out of or relating to this Agreement or any other agreement, instrument or document evidencing, securing or relating to the Credit Facility. In such event, the Borrower and each Borrower Subsidiary, at the request of the Lender, shall cause its attorney of record to effectuate such waiver in compliance with the Rules of Civil Procedure of the applicable jurisdiction, as the same may be amended from time to time. The Borrower and each Borrower Subsidiary each hereby submits to the jurisdiction of the courts of the State of Hawaii and agrees that any judgment of the courts of the State of Hawaii, including any in personam judgment, shall be deemed to have the same force and effect as that obtained from the courts in the jurisdiction in which the Borrower or such Borrower Subsidiary resides. The Borrower and each Borrower Subsidiary each hereby waives any right which it may have to transfer or change the venue of any litigation brought against it by the Lender in accordance with this Section 7.20.
VIII. DEFINITIONS
8.1 “Acquisition” means any transaction, or any series of related transactions, by which the Borrower or any Borrower Subsidiary directly or indirectly: (a) acquires any going business or all or substantially all of the assets of any firm, company, partnership, joint venture, limited liability, corporation or division thereof, whether through purchase of assets, merger or otherwise; or (b) acquires (in one transaction or as the most recent transaction in a series of transactions) control of at least a majority of the stock of a corporation having ordinary voting power for the election of directors; or (c) acquires control of fifty percent (50%) or more ownership interest in any partnership, limited liability company or other entity. The amount of any Acquisition shall be equal to the purchase price thereof.
8.2 “Adjusted EBITDA” means the following for the period being measured: (A) the Borrower’s and Borrower Subsidiaries’ consolidated earnings; plus (B) provision for income taxes recognized; plus (C) interest expense on Indebtedness; plus (D) depreciation and amortization; plus (E) non‑recurring charges and/or losses before taxes (whether cash or non‑cash); minus (F) non‑recurring earnings, income and/or gains before taxes (whether cash or non‑cash), determined based on the most recent fiscal quarter, but annualized.
8.3 “Affiliate” shall mean: (a) any Person, that directly or indirectly, through one or more intermediaries, controls Borrower or any Borrower Subsidiary (a “Controlling Person”); or (b) any Person (other than the Borrower or a Borrower Subsidiary) which is controlled by or is under common control with a Controlling Person. As used herein, the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
8.4 “Agreement” shall mean this Third Amended and Restated Credit Agreement, as it may from time to time be amended, supplemented or otherwise modified.
8.5 [RESERVED]
8.6 “Appraised Value” with respect to any property shall be the fair market value of such property as determined by a licensed appraiser acceptable to and retained by the Lender, determined in accordance with the Uniform Standards of Professional Appraisal Practice and FIRREA requirements.
8.7 “Assignment of Rents” means an assignment or assignments of rents and leases, in form and substance satisfactory to the Lender, assigning the Borrower’s interest as lessor in, and all rents from, leases relating to the Mortgaged Property, as amended from time to time.
8.8 “Bankruptcy Code” shall have the meaning provided in Section 6.1(e) of this Agreement.
8.9 “Borrower” shall have the meaning set forth in the first paragraph of this Agreement.
8.10 “Borrower Subsidiary” shall mean any Subsidiary of the Borrower. As of the Closing Date, the Borrower Subsidiaries consist of KLC, and KRC.
8.11 [RESERVED]
8.12 “Business Day” shall mean any day, excluding Saturdays and Sundays, on which the main branch of the Lender in Honolulu, Hawaii is open to the public for carrying on substantially all of its banking functions.
8.13 “Capital Expenditure” means any expenditure for equipment, fixed assets, real property or improvements, or for replacements or substitutions therefor or additions thereto, that have a useful life of more than one (1) year.
8.14 “Closing” shall refer to the execution and delivery of all Loan Documents, the recordation of the Mortgage, and the completion of all conditions for the first disbursement of Credit Facility proceeds to the Borrower, each in accordance with the terms of this Agreement.
8.15 “Closing Certificate” shall mean a Closing Certificate in form and substance acceptable to the Lender, executed by the Borrower and delivered to the Lender on the Closing Date.
8.16 “Closing Date” shall mean the date that Closing occurs.
8.17 “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
8.18 “Collateral” shall have the meaning set forth in Section 1.3 of this Agreement.
8.19 “Compliance Certificate shall have the meaning set forth in Section 4.2 of this Agreement.
8.20 “Controlled Group” shall mean with respect to any specified Person: (a) all members of a controlled group of corporations; and (b) all trades or businesses (whether or not incorporated) under common control which, together with such Person, are treated as a single employer under Sections 414(b) or 414(c) of the Code.
8.21 “Credit Facility” shall have the meaning set forth in Recital A of this Agreement.
8.22 “Debt Service” shall mean the Borrower’s actual or required debt service payments with respect to any Indebtedness, including required or actual principal and interest payments and also including all actual or required payments under capital leases.
8.23 “Debt Yield” shall mean Primary NOI divided by the outstanding principal balance of the Credit Facility.
8.24 “Default” shall mean any event, act or condition which notice or lapse of time or both would constitute an Event of Default.
8.25 “Default Rate” shall have the meaning given in Section 1.4(a) of this Agreement.
8.26 “Effective Date” shall have the meaning set forth in the first paragraph of this Agreement.
8.27 “Environmental Indemnity Agreement” shall mean an environmental indemnity agreement in form and substance satisfactory to the Lender, with respect to the Mortgaged Property.
8.28 “Environmental Laws” means all present and future federal, state or local laws, statutes, ordinances, rules or regulations and other requirements of governmental authorities relating to the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as now or hereafter amended, the Clean Water Act, 33 U.S.C. § 1251 et seq., as now or hereafter amended, the Clean Air Act, 42 U.S.C. § 7401 et seq., as now or hereafter amended, the Toxic Substances Control Act, 15 U.S.C. § 2601-2629, as now or hereafter amended, the Safe Drinking Water Act, 42 U.S.C. § 300f-300j, as now or hereafter amended, the Environmental Response Law, Hawaii Revised Statutes, as amended, Ch. 128D, as now or hereafter amended, and the regulations now or hereafter adopted, published and/or promulgated pursuant thereto.
8.29 “ERISA” shall mean the Employee Retirement Income Security Act of 1974 as amended from time to time. Section references to ERISA are to ERISA as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
8.30 “ERISA Affiliate” shall mean each trade or business (whether or not incorporated) which together with the Borrower or any of its Subsidiaries would be deemed to be a “single employer” within the meaning of Section 4001 of ERISA.
8.31 “Event(s) of Default” shall have the meaning set forth in Section 6.1 of this Agreement.
8.32 The term “fiscal year” shall mean, with respect to the Borrower and each Borrower Subsidiary, the fiscal year ending on December 31 of each year. References to specific fiscal years (e.g. “fiscal year 2016”) shall mean the fiscal year ending December 31 of the year specified.
8.33 The term “fiscal quarter” shall mean, with respect to the Borrower and each Borrower Subsidiary, the fiscal quarter ending on the last day of March, June, September and December of each year. References to specific fiscal quarter (e.g., “first fiscal quarter 2016”) shall mean the specified fiscal quarter of the fiscal year specified.
8.34 “Fixed Charges” shall mean the Borrower’s Debt Service for the most recent fiscal quarter, but annualized.
8.35 “GAAP” shall mean generally accepted accounting principles, consistently applied.
8.36 “Government Authority” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
8.37 “Governmental Authorizations” shall mean all franchises, licenses, permits, consents, approvals, authorizations and agreements granted or issued by any local, state or Federal commission, agency or authority or any other Government Authority, whether presently existing or hereafter granted or issued to or obtained or used by the Borrower or any Borrower Subsidiary in its business and/or for the operation and use of the Collateral.
8.38 “Hazardous Substance” means any substance that is at any time defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations, including, without limitation, the environmental laws, as a “hazardous substance, hazardous waste, infectious waste, toxic substance, toxic pollutant” and including, without limitation, asbestos, polychlorinated biphenyls, petroleum products, petroleum byproducts, petroleum wastes and byproducts associated with the extraction, refining or use of petroleum or petroleum products, whether or not so listed or classified in such laws or regulations.
8.39 “Hazardous Substance Activity” means any actual, proposed or threatened storage, holding, existence, use, release, migration, emission, discharge, generation, processing, abatement, removal, repair, cleanup, detoxification, disposition, handling or transportation of any hazardous substance from, under, into or on the property or any other activity that occurs or causes or would cause such event to exist.
8.40 “Indebtedness” shall mean, with respect to a Person, all items of indebtedness and other obligations of the Person which, in accordance with generally accepted principles of accounting, would be included on the liability side of a balance sheet on the date as of which Indebtedness is to be determined, including, without limitation, (i) all obligations for borrowed money, (ii) all obligations evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations in respect of accounts payable and accrued expenses, and (iv) all obligations to pay the deferred purchase price of property or services, plus obligations under leases which shall have been or should be, in accordance with GAAP, recorded as capital leases, in respect of which obligations the Person is liable, whether pursuant to a guarantee, contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations the Person otherwise assures a creditor against loss.
8.41 “Indemnified Person” shall have the meaning set forth in Section 7.4(c) of this Agreement.
8.42 “Investment” shall mean any investment by or of the Borrower or any Borrower Subsidiary, whether by means of purchase or other acquisition of capital stock, shares, options, warrants, participations or other interests of or in any other Person or by means of loan, advance, capital contribution, guaranty or other debt or equity participation or interest, or otherwise, in any other Person (other than any Affiliates), including any partnership, limited liability company and joint venture interests of such Person in any other Person. The amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
8.43 “Issuing Bank” means the Lender, in its capacity as issuer of a Letter of Credit.
8.44 “Key Tenants” shall mean the tenants holding the following tenant leases:
(a) Lease dated December 7, 2007, as amended, by and between the Borrower and BC Restaurant Operator Inc., a Hawaii corporation;
(b) Lease dated May 11, 2011, as amended, by and between the Borrower and MNS, Ltd., a Hawaii corporation;
(c) Lease dated October 28, 2005, as amended, by and between the Borrower and Octopus/DK, Inc., a Hawaii corporation.
8.45 “KLC” means Kapalua Land Company, Ltd., a Hawaii corporation.
8.46 “KRC” means Kapalua Realty Company, Ltd., a Hawaii corporation, the sole shareholder of which is KLC.
8.47 “L/C Application” shall have the meaning set forth in Section 1.2(e) of this Agreement.
8.48 “L/C Collateral” shall have the meaning set forth in Section 4.19 of this Agreement.
8.49 “L/C Disbursements” shall mean a payment (or payments) made by the Issuing Bank pursuant to a Letter of Credit.
8.50 “L/C Exposure” shall mean, at any time, the sum of: (A) the aggregate undrawn amount of all outstanding Letters of Credit at such time; plus (B) the aggregate amount of all L/C Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.
8.51 “L/C Exposure Limit” shall mean $5,000,000.
8.52 “Lender” shall have the meaning set forth in the first paragraph of this Agreement.
8.53 “Letter of Credit” shall have the meaning provided in Section 1.2(c) of this Agreement.
8.54 “Liens” shall mean any mortgage, pledge, lien or other charge or encumbrance of any kind (including, without limitation, the charge upon property purchased under conditional sale or other title retention agreements), or grant of any security interest.
8.55 “Loan” or “Loans” shall have the meanings set forth in Section 1.1(a) of this Agreement.
8.56 “Loan Documents” shall have the meaning set forth in Section 1.6 of this Agreement.
8.57 “Loan Fee” shall have the meaning set forth in Section 1.8 of this Agreement.
8.58 “Loan to Value Ratio” at any particular time shall mean the ratio that (a) the Revolving Loan Commitment at that time bears to (b) the Appraised Value of the Collateral.
8.59 “Material Plan” shall have the meaning provided in Section 6.1(j) of this Agreement.
8.60 “Maturity Date” shall have the meaning set forth in Section 1.1(c) of this Agreement.
8.61 “Maximum Liabilities” shall mean all liabilities which would, in conformity with GAAP, be classified as a liability on the consolidated balance sheet of the Borrower and the Borrower Subsidiaries.
8.62 “Minimum Fixed Charge Coverage Ratio” shall mean the ratio of Adjusted EBITDA to Fixed Charges.
8.63 “Minimum Liquidity” shall mean the sum of the Borrower’s and Borrower Subsidiaries’ consolidated (i) cash and cash equivalents; (ii) publicly traded marketable securities acceptable to the Lender; and (iii) the undisbursed Revolving Loan Commitment under the Credit Facility.
8.64 “Mortgage” shall mean that certain Mortgage, Security Agreement and Fixture Filing, as amended, in form and substance satisfactory to the Lender, executed by the Borrower in favor of the Lender, respectively granting to the Lender a first priority mortgage and security agreement in and to the Borrower’s interest in the Mortgaged Property, as may be further amended, modified, or restated from time to time.
8.65 “Mortgaged Property” shall mean all of the real and personal property at the following:
(a) Fee simple property (TMK Parcel No. (2) 4-2-004-035) located at 700 Office Road, Lahaina, Hawaii, owned by the Borrower, known as Honolua Village, occupied in part by the Borrower, the major tenant of which is Sansei Restaurant.
(b) Fee simple property (TMK Parcel Nos. (2) 4-2-004-025 and (2) 4‑2‑006‑011) located at One Bay Club Place, Lahaina, Hawaii, owned by the Borrower, currently occupied by Merriman’s Restaurant.
(c) Fee simple property (TMK Parcel No. (2) 4-2-004-054) located at 502 Office Road, Lahaina, Hawaii, owned by the Borrower, known as the Honolua Store, currently leased to ABC stores.
8.66 ‘‘Note” shall have the meaning set forth in Section 1.2(e) of this Agreement.
8.67 ‘‘Notice of Borrowing” shall mean notice of a requested Loan as described in Section 1.2 of this Agreement.
8.68 “Obligations” shall have the meaning set forth in Section 1.7 of this Agreement.
8.69 “OFAC Restrictions” shall have the meaning set forth in Section 7.18 of this Agreement.
8.70 “Participant” shall mean any lender or lenders that shall have agreed to purchase a participating interest in the Credit Facility and in the Loan Documents from the Lender.
8.71 “Patriot Act” shall have the meaning set forth in Section 4.18 of this Agreement.
8.72 “PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
8.73 “Person” shall mean and include any individual, corporation, partnership, limited liability company, association, trust, or legal entity or any governmental or political subdivision or agency, department or instrument thereof.
8.74 “Personal Property” shall mean all of the Borrower’s personal property, including, without limitation, accounts, accounts receivable, inventory, furniture, fixtures, equipment, general intangibles, trade names, licenses, deposit accounts and proceeds of the foregoing.
8.75 “Plan” means at any time an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and is either: (a) maintained by a member of the Controlled Group for employees of a member of the Controlled Group; or (b) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.
8.76 “Primary NOI” shall mean net operating income from tenant leases of the Mortgaged Property, calculated based on the trailing twelve months of revenues less the trailing twelve months of associated operating expenses. The calculation of Primary NOI shall exclude income and expenses from tenant leases which have expired or terminated within the trailing 12‑month period, tenant leases which are in default and tenants who are not paying rent.
8.77 “Prime Rate” or “Prime” shall have the meaning set forth in Section 1.4(a) of this Agreement.
8.78 The term “quarter” shall mean, unless “calendar quarter” is specified, the fiscal quarter.
8.79 “Reportable Event” shall mean an event described in Section 4043(b) of ERISA (with respect to which the 30‑day notice requirement has not been waived by the PBGC).
8.80 “Restricted Payment” shall have the meaning set forth in Section 5.5 of this Agreement.
8.81 “Revolving Borrowing” or “Revolving Borrowings” shall have the meanings set forth in Section 1.2(a) of this Agreement.
8.82 “Revolving Loan Commitment” shall mean $25,000,000.
8.83 “Sansei SNDA” shall mean a Subordination, Nondisturbance and Attornment Agreement in favor of the Lender, in form and substance acceptable to the Lender, from Octopus/DK, Inc. with respect to its tenant lease dated October 28, 2005, as amended.
8.84 “Second Amended and Restated Credit Agreement” shall have the meaning set forth in Recital A of this Agreement.
8.85 “Security Agreement” shall mean that certain Security Agreement, as amended, in form and substance satisfactory to the Lender, executed by the Borrower and granting a first priority security interest in the Personal Property.
8.86 “Subsidiary” shall mean and include, with respect to a Person, any company in which such Person now has or may hereafter acquire an aggregate of more than fifty percent (50%) of the voting stock and any partnership, limited liability company, or other entity in which such Person now has or may hereafter acquire majority control. For the purposes of this definition, “voting stock” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock “has such voting power by reason of any contingency, and the term “majority control” means the right, ability or authority to manage, direct or control the business affairs of the subject entity.
8.87 “Swap” shall have the meaning provided in Section 1.4(b) of this Agreement.
8.88 “Taxes” shall have the meaning set forth in Section 1.5(e) of this Agreement.
8.89 “Term Loan” or “Term Loans” shall have the meanings set forth in Section 1.2(b) of this Agreement.
8.90 “Term Loan Maturity Date” shall have the meaning set forth in Section 1.2(b)(ii)(A) of this Agreement.
8.91 “Transfer” shall have the meaning set forth in Section 6.1(a) of this Agreement.
8.92 “Unfunded Vested Liabilities” means, with respect to any Plan at any time, the amount (if any) by which: (a) the present value of all vested nonforfeitable benefits under such Plan exceeds; (b) the fair market value of all Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such Plan, but only to the extent that such excess represents a potential liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.
8.93 “Written” or “in writing” shall mean any form of written communication or a communication by means of telex, facsimile device, telegraph or cable.
8.94 “Yield Maintenance” shall have the meaning set forth in Section 1.5(c)(ii)(B) of this Agreement.
IN WITNESS WHEREOF, the Lender and the Borrower have duly executed this Agreement.
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FIRST HAWAIIAN BANK |
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By: |
/s/ Charles C. Barbata |
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Charles C. Barbata Its Senior Vice President |
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Lender |
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MAUI LAND & PINEAPPLE COMPANY, INC. |
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By: |
/s/ Wade K. Kodama |
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Wade K. Kodama Its Chief Financial Officer |
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Borrower |
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EXHIBIT “A”
NOTICE OF BORROWING
DATE:_____________________, 20___
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TO: |
First Hawaiian Bank |
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SUBJECT: |
Third Amended and Restated Credit Agreement (the “Agreement”) dated ________________, 2025, as amended, between First Hawaiian Bank (the “Lender”), and Maui Land & Pineapple Company, Inc. (the “Borrower”) |
Pursuant to Section 1.2 of the Agreement, the Borrower hereby requests a borrowing under the Credit Facility and confirms the following instructions therefor (capitalized terms not defined herein shall have the respective meanings assigned in the Agreement):
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A. |
BORROWING: |
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1. |
Date and Amount: |
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Principal Amount: |
$ |
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Type of Loan |
☐ Revolving Borrowing; ☐ Term Loan; ☐ Letter of Credit |
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2. |
Purpose of Borrowing and description of property on which Borrowing will be used: |
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3. |
Applicable to Term Loans: |
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Interest Rate |
☐ Option 1 (fluctuating rate) or |
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☐ Option 2 (fixed rate) |
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Maturity Date |
months |
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B. |
METHOD OF DRAWING: ☐ Credit to _______________’s Deposit Account No. __________________ maintained with the First Hawaiian Bank. |
☐ Wire Funds to:
ABA No.: _______________________________
Credit Account No.: _______________________
Special Instructions: ____________________________________________________
The Borrower hereby certifies as follows:
1. The representations and warranties set forth in Article III of the Agreement are true and correct on and as of the date hereto, provided that the representations and warranties set forth in Section 3.11 of the Agreement shall be deemed to be made with respect to the financial statements most recently delivered to the Lender pursuant to the Agreement.
2. As of the date hereof, no event has occurred and is continuing that: (a) constitutes an Event of Default under the Agreement; or (b) with the giving of notice or passage of time, or both, would constitute an Event of Default. The Borrower has observed and performed all of Borrower’s covenants and other agreements, and satisfied every condition, contained in the Agreement and in the other Loan Documents, to be observed, performed or satisfied by the Borrower.
3. Applicable to a Notice of Borrowing for a Term Loan: As of the date hereof, the Borrower has a minimum Debt Yield of not less than 9.0% using the trailing 12-month Primary NOI.
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BORROWER: |
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MAUI LAND & PINEAPPLE COMPANY, INC. |
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By: |
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Name |
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Title |
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SCHEDULE 4.2
COMPLIANCE CERTIFICATE
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DATE: |
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TO: |
First Hawaiian Bank __________________________ (808)______________________ |
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SUBJECT: |
Credit Agreement (the “Agreement”) dated _____________________, 2016, as amended, between First Hawaiian Bank (“Lender”), and Maui Land & Pineapple Company, Inc. (the “Borrower”). |
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Pursuant to Section 4.2 of the Agreement, the Borrower hereby certifies as follows:
1. The information furnished in Schedule 1 hereto is true, correct and complete as of the last day of the fiscal ____________ preceding the date of this Compliance Certificate.
2. Except as disclosed in Schedule 2 hereto (if any), the representations and warranties set forth in Article III of the Agreement are true and correct on and as of the date hereof, provided that the representations and warranties set forth in Section 3.11 of the Agreement shall be deemed to be made with respect to the financial statements most recently delivered to the Lender pursuant to the Agreement.
As of the date hereof, no event has occurred and is continuing that: (a) constitutes an Event of Default under the Agreement; or (b) with the giving of notice or passage of time, or both, would constitute an Event of Default. The Borrower has observed and performed all of Borrower’s covenants and other agreements, and satisfied every condition contained in the Agreement and in the other Loan Documents to be observed, performed or satisfied by Borrower.
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BORROWER: |
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MAUI LAND & PINEAPPLE COMPANY, INC. |
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By: |
/s/ |
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Name |
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Title |
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SCHEDULE 1
TO COMPLIANCE CERTIFICATE
FOR FISCAL [QUARTER/YEAR] ENDING: _______________________
FINANCIAL COVENANTS
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A. |
Fixed Charge Coverage Ratio (Tested and Reported Quarterly) |
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Adjusted EBITDA (consolidated) |
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divided by Fixed Charges (annualized) |
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equals Fixed Charge Coverage Ratio |
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B. |
Minimum Liquidity (Tested and Reported annually as of 12/31 and as of 6/30/17) |
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Undrawn Revolving Loan Commitment |
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plus Cash and Cash Equivalents (consolidated) |
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plus Publicly Traded Securities (consolidated) |
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equals |
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Total Minimum Liquidity (Required Minimum as set forth in Loan Agreement) |
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C. |
Maximum Liabilities (Tested and Reported Quarterly) |
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Total Maximum Liabilities (consolidated) |
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D. |
Debt Yield (Tested and Reported Annually) |
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Primary NOI |
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divided by Outstanding Principal Balance of the Credit Facility |
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equals Debt Yield |
Exhibit 10.6
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LAND COURT SYSTEM |
REGULAR SYSTEM |
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Return by Mail ☒ Pickup ☐ To:
First Hawaiian Bank 999 Bishop Street Honolulu, HI 96813 Attn: Commercial Real Estate Division
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Total Pages: |
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Tax Map Key No.: (2) 4-2-004-035, (2) 4-2-004-025, (2) 4-2-006-011, (2) 4-2-004-054 |
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THIRD AMENDMENT OF MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING AND ASSIGNMENT OF LESSOR’S INTEREST IN LEASES AND RENTS
This Third Amendment of Mortgage, Security Agreement and Fixture Filing and Assignment of Lessor’s Interest in Leases and Rents (this “Amendment”) is made as of December 22, 2025, by and between MAUI LAND & PINEAPPLE COMPANY, INC., a Delaware corporation, whose mailing address is 500 Office Road, Lahaina, Hawaii 96761 (hereinafter called the “Borrower”), and FIRST HAWAIIAN BANK, a Hawaii corporation, whose mailing address is 999 Bishop Street, Honolulu, Hawaii 96813 (hereinafter called the “Lender”).
RECITALS:
A. The Borrower executed and delivered to the Lender the following (collectively, the “Mortgage Documents”):
1. that certain Mortgage, Security Agreement and Fixture Filing dated August 4, 2016, made by the Borrower, as Mortgagor, in favor of the Lender, as Mortgagee, recorded in the Bureau of Conveyances of the State of Hawaii (the “Bureau”) as Document No. A-60610335, as amended by (a) that certain Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents dated December 30, 2016, recorded in the Bureau as Document No. A-62080398A through A-62080398C, (b) that certain Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents acknowledged December 17, 2021 and recorded on December 23, 2021 in the Bureau as Document Nos. A-80270350 and A-80270351, and (c) that certain Amendment to Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents dated January 28, 2022, recorded in the Bureau as Document Nos. A-80690089 and A-80690090 (as amended, the “Mortgage”); and
2. that certain Assignment of Lessor’s Interest in Leases and Rents dated August 4, 2016, made by the Borrower, as Assignor, to the Lender, as Assignee, recorded in the Bureau as Document No. A-60610336, as amended by (a) that certain Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents dated December 30, 2016, recorded in the Bureau as Document No. A-62080398A through A-62080398C, (b) that certain Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents acknowledged December 17, 2021 and recorded on December 23, 2021 in the Bureau as Document Nos. A-80270350 and A-80270351, and (c) that certain Amendment to Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents dated January 28, 2022, recorded in the Bureau as Document Nos. A-80690089 and A-80690090 (as amended, the “Assignment”).
B. The Mortgage Documents secure that certain revolving credit facility (the “Credit Facility”), by the Lender in favor of the Borrower pursuant to that certain unrecorded Credit Agreement dated August 4, 2016, by and between the Borrower and the Lender, as amended and restated by (1) that certain Amended and Restated Credit Agreement dated December 30, 2016, (2) that certain Second Amended and Restated Credit Agreement dated December 23, 2021, and (3) that certain Third Amended and Restated Credit Agreement dated on or about the date hereof (as amended and restated, the “Credit Agreement”).
C. The Borrower and the Lender wish to further amend the Mortgage Documents as more fully set forth in this Amendment.
AGREEMENT:
NOW, THEREFORE, intending to be legally bound, the Borrower and the Lender hereby agree as follows:
1. Amendment of Mortgage.
a. Section 2(a) of the Mortgage is hereby amended in its entirety to read as follows:
“The repayment of a senior revolving credit facility (the “Credit Facility”) made by the Mortgagee to the Mortgagor in a principal amount not to exceed TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00), pursuant to the terms of that certain unrecorded Third Amended and Restated Credit Agreement dated December 22, 2025, as further amended and/or restated from time to time (as so amended and restated, the “Credit Agreement”) and which Credit Facility is evidenced by that certain Second Amended and Restated Note dated December 3, 2025, in the stated principal amount of $25,000,000.00, executed by the Mortgagor, as maker, and made payable to the Mortgagee, the provisions of such note and any renewals, extensions or modifications thereof being incorporated herein by reference, being secured hereby and being hereinafter referred to as the “Note”; and
b. Section 2(d) of the Mortgage is hereby amended in its entirety to read as follows:
“The payment by the Mortgagor to the Mortgagee of all other sums now or hereafter loaned or advanced from time to time subsequent to the date of this Mortgage by the Mortgagee to the Mortgagor pursuant to any provision of the Loan Documents, expended by the Mortgagee for the account of the Mortgagor pursuant to any provision of the Loan Documents, or otherwise owing by the Mortgagor to the Mortgagee pursuant to any provision of the Loan Documents. The maximum aggregate principal amount of the future advances is $25,000,000.00.
2. Amendment of the Assignment. Section 1(g)(i) of the Assignment is hereby amended in its entirety to read as follows:
“The payment of all indebtedness evidenced by that certain Credit Agreement dated on or about the date of this Agreement, made by and between the Assignor and the Assignee, relating to a senior revolving credit facility in a principal amount not to exceed $25,000,000.00. Said Credit Agreement, as it now exists or as it may be hereafter modified, is herein called the “Credit Agreement”;
3. Borrower’s Confirmation. The Borrower hereby confirms and warrants to the Lender that (a) the Borrower is the lawful owner of the properties encumbered by the Mortgage Documents (collectively, the “Collateral”), free and clear of all liens and encumbrances, except for the Mortgage Documents, as amended by this Amendment, and the encumbrances mentioned in the Mortgage Documents; (b) the Borrower has not created, incurred, assumed or suffered to exist any other mortgage, lien, charge, security interest or encumbrance of any kind on the Collateral; (c) the Borrower has not alienated, assigned, conveyed or transferred any part of the Collateral, except as otherwise consented to by the Lender in writing; (d) the Borrower has paid all taxes and assessments due on the Collateral and none is delinquent or in default; (e) the Lender is entitled to the benefits of the liens and security interests of, the Mortgage Documents, as amended hereby; and (f) the Borrower has good right and authority to confirm the same to the Lender.
4. Conformance and Ratification. The provisions of the Mortgage Documents are amended to conform herewith, but in all other respects, such provisions are to be and continue in full force and effect.
5. No Waiver. This Amendment is made on the express condition that nothing herein contained shall in any way be construed as adversely affecting, impairing or waiving any rights of the Lender under the Mortgage Documents. Nothing herein contained or done pursuant hereto shall adversely affect or impair or be construed to adversely affect or impair the lien, charge or encumbrance of the Mortgage Documents or the priority thereof over other liens, charges or encumbrances, if any, or release or affect or be construed to release or affect the liability of any party or parties whomsoever may now or hereafter be liable under or on account of said documents.
6. Successors. This Amendment is binding upon and inures to the benefit of the Lender and the Borrower and their respective successors and assigns.
7. Counterparts. This Amendment may be executed in counterparts, each of which shall be an original instrument and all of which shall together constitute one and the same agreement.
[The following page is the signature page.]
IN WITNESS WHEREOF, the Borrower and the Lender have executed this Third Amendment of Mortgage, Security Agreement and Fixture Filing and Assignment of Lessor’s Interest in Leases and Rents as of the date first written above.
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MAUI LAND & PINEAPPLE COMPANY, INC., |
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a Delaware corporation |
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By: |
/s/ Wade K. Kodama |
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Wade K. Kodama |
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Its Chief Financial Officer |
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FIRST HAWAIIAN BANK, |
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a Hawaii corporation |
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By: |
/s/ Charles C. Barbata |
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Charles C. Barbata |
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Its Senior Vice President |
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| Lender |
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Exhibit 10.14
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Escrow Instructions (this “Agreement”) dated December 3, 2025 (the “Effective Date”), is made between MAUI LAND & PINEAPPLE COMPANY, INC., a Delaware corporation, as “Seller”, and HARVEST AT KUMULANI CHAPEL, a Hawaii nonprofit corporation, or permitted assignee, as “Buyer” with reference to the following:
A. Seller owns fee simple title to Lot 1D-1 of the “Kapalua Makai Subdivision No. 1” located at Kapalua, Maui, Hawaii, which is identified by Tax Map Key No. (2) 4-2-004-037 (“Parcel 37”).
B. This Agreement pertains to the approximately 6.5-acre portion of Parcel 37 that is depicted on Exhibit A attached hereto (the “Land”), all buildings and other improvements located thereon, and the Property as defined in Section 2.1 below. The Land is currently the site of five (5) buildings identified as (1) Unit O-1 located at 200 Village Road, containing approximately 2,927 square feet, (2) Unit O-2 located at 500-A Village Road, containing approximately 1,161 square feet, (3) Unit I-1 located at 500-B Village Road, containing approximately 5,158 square feet, (4) Unit O-3 located at 650 Village Road, containing approximately 1,416 square feet, and (5) Unit O-4 located at 700 Village Road, containing approximately 1,401 square feet. As shown on Exhibit A, the “Existing Campus Property” refers to the portion of the Land shaded in blue and containing approximately 224,940 square feet, more or less, and the “Sloped Property” refers to the portion of the Land shaded in green and containing approximately 57,745 square feet, more or less.
B. The Property is located within the Project District established by the Zoning Code of the County of Maui, Maui County Code Chapter 19.73 (the “Project District Ordinance”) that is identified as Lahaina Project District 1 (Kapalua) (the “Project District”). The Project District is located within the Kapalua Resort, a master-planned resort community established by Seller.
C. Buyer currently leases the Existing Campus Property and the improvements on that part of the Land under an unrecorded Ground Lease dated April 1, 2024 (the “Ground Lease”).
D. Buyer desires to acquire fee simple title to the Property in order to develop, own and operate a church, preschool and certain ancillary uses, as more specifically defined in Section 2.13 below (the “Permitted Uses and Improvements”).
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, Seller and Buyer agree as follows:
1. PURCHASE OF PROPERTY. Pursuant and subject to the terms of this Agreement, Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller, the Property (as described in paragraph 2.1), in consideration of the payment of the Purchase Price (as described in paragraph 2.4) and the respective promises of the parties set forth in this Agreement.
2. BASIC TERMS.
2.1 PROPERTY. The “Property” shall mean (a) a spatial condominium unit to be created by Seller consisting of the Land, (b) all existing improvements on the Land (the “Improvements”), (c) all easements, rights of way and other rights, if any, appurtenant to the Land, (d) all of Seller’s rights in and to any existing governmental agency approvals and entitlements pertaining to the Land or the Improvements. The Property shall expressly exclude any personal property, supplies or equipment belonging to Seller (which Seller shall remove prior to closing). Buyer acknowledges that prior to Closing, Seller will establish a condominium project for Parcel 37 (the “Condominium Project”) that creates a separate unit containing the Property (the “Unit”) and such Unit shall be conveyed to Buyer at Closing.
2.2 BUYER. “Buyer” shall mean HARVEST AT KUMULANI CHAPEL, a Hawaii nonprofit corporation, or its permitted assignee as provided in paragraph 14.1, whose address is 6115 Arlington Avenue, Riverside, CA 92504.
2.3 SELLER. “Seller” shall mean MAUI LAND & PINEAPPLE COMPANY, INC., a Delaware corporation, whose address is 500 Office Road, Lahaina, Hawaii 96761.
2.4 PURCHASE PRICE. “Purchase Price” shall mean the total sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00).
2.5 TERMS OF PURCHASE.
(a) The Initial Deposit. An initial deposit of THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) (the “Initial Deposit”) shall be delivered to Escrow Holder by Buyer within three (3) Business Days after the Effective Date. As used in this Agreement, a “Business Day” means any day on which the Bureau of Conveyances of the State of Hawaii (“Bureau”) is open for the recording of deeds.
(b) The Extension Deposit(s). Within two (2) Business Days after delivery of an Entitlement Extension notice set forth in paragraph 3.4(b), Buyer shall deliver to Escrow Holder an additional deposit of FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) (each, an “Extension Deposit”) (the Initial Deposit and any and all Extension Deposits, upon delivery to Escrow Holder and including all interest earned thereon, each being a “Deposit” and collectively being the “Deposits”).
(c) Maintenance and Release of the Deposits. Upon Buyer’s request, the Escrow Holder shall invest the Deposits in one or more federally-insured deposit accounts approved by Buyer. Buyer shall bear all costs of establishing and maintaining such accounts. Interest accrued on the Deposits shall be applied in the same manner as the Deposits. Upon the close of Escrow for this transaction (“Closing”), the Deposits shall be applied towards the Closing Price.
(d) Release and Refundability of the Deposits. On the date on which Buyer issues its Acceptance Notice under paragraph 3.3(c) and such Acceptance Notice has been received by Seller (the “Acceptance Date”), Escrow Holder, upon Seller’s written request, shall disburse the Initial Deposit to Seller (and thereafter, any Extension Deposit(s)); provided, however that such Initial Deposit and any Extension Deposit(s) shall be refundable to Buyer until the expiration of the Permitting Period, as same may have been extended pursuant to this Agreement. If this Agreement terminates as a result of the failure of a Buyer condition precedent to Closing as set forth in paragraph 3 or in the event of casualty, condemnation or Default by Seller, or as otherwise expressly provided in this Agreement or for any other reason this Agreement is terminated in Buyer’s sole discretion, the Deposits, including all interest accrued thereon shall be refundable to Buyer, except where such failure of a condition precedent is solely and demonstrably the result of a breach by Buyer of its covenants, representations or warranties under this Agreement.
(e) Cash at Closing. The Closing Price, less the Deposits, plus Buyer’s share of closing costs, prorations, and fees and charges payable pursuant to this Agreement, shall be delivered to Escrow Holder as provided in paragraph 6.3. This transaction is not contingent on financing.
2.6 EFFECTIVE DATE. The effective date (“Effective Date”) of this Agreement shall be the date Seller and Buyer execute this Agreement.
2.7 INSPECTION PERIOD. The “Inspection Period” shall mean the period commencing on the Effective Date and ending at 5:00 p.m. Hawaii Standard Time on the date 90 days after the later of the Effective Date or the date on which Seller delivers to Buyer all of the documents in its possession or control that are identified on the Document Inventory as set forth in Section 3.3(a), for Buyer to determine to Buyer’s satisfaction as provided in paragraph 3.3 whether the Property is acceptable to Buyer and suitable for Buyer’s planned development, ownership and operation of the Property.
2.8 CLOSING DATE. The “Closing Date” shall be the date designated by Buyer in its Notice to Proceed under paragraph 3.4(b), but in no event later than thirty (30) days after the Notice to Proceed.
2.9 ESCROW HOLDER. The “Escrow Holder” shall mean Title Guaranty Escrow Services, Inc., whose address is 225 Queen Street, Suite 500, Honolulu, HI 96813, Escrow Officer: Jeremy Trueblood (phone: (808) 521-0208; fax: (808) 521-0280; e-mail: jtrueblood@tghawaii.com).
2.10 TITLE COMPANY. The “Title Company” shall mean Title Guaranty of Hawaii, LLC, whose address is 225 Queen Street, Suite 500, Honolulu, HI 96813.
2.11 TITLE POLICY. The “Title Policy” shall mean an ALTA Extended Owner’s Policy of Title Insurance that the Title Company commits to issue to Buyer prior to the end of the Inspection Period with no exceptions or exclusions to coverage except for the easements reservations, covenants and exceptions as set forth in this Agreement and those set forth in schedule B (excluding, however, those Disapproved Exceptions Seller has agreed to cure pursuant to paragraph 3.1(b) below) on the Title Commitment (as hereinafter defined), unless otherwise expressly agreed to in writing by Buyer (“Permitted Exceptions”). The Permitted Exceptions shall include all matters shown on the Survey that are not Disapproved Exceptions that Seller has agreed to cure.
2.12 BROKERS. There are no brokers involved in this transaction and no commissions, finders fees or other like compensation shall be payable by Seller or Buyer to any third parties.
2.13 PERMITTED USES AND IMPROVEMENTS; RESTRICTIVE COVENANTS. As an essential inducement to Seller to enter into this Agreement, Buyer acknowledges and agrees that the Property is part of a planned development and a zoning project district, and the uses and improvements on the Property shall be perpetually limited to the following by way of restrictive covenants to be recorded on title the Property at Closing:
2.13.1 A church and ancillary buildings and spaces for non-commercial meetings and fellowship uses;
2.13.2 A privately operated preschool and associated areas for education, play, recreational activities, daycare center and related activities by students at the preschool;
2.13.3 One (1) dwelling unit located in a single structure, the interior area of which may not exceed 3,000 square feet in size (subject to Buyer’s right to add additional dwellings as set forth in this Agreement).
Buyer acknowledges that the restrictive covenants recorded at Closing will prohibit all other uses, improvements and activities of any kind, including without limitation additional residential dwellings, commercial, retail, restaurant, hotel and hospitality uses and improvements. The provisions of this paragraph 2.13 shall survive Closing.
3. CONDITIONS PRECEDENT TO BUYER’S PERFORMANCE. Buyer’s obligation to purchase the Property is subject to the satisfaction or waiver of all conditions set forth in this paragraph 3 below (which are for Buyer’s benefit) within the time periods specified.
3.1 TITLE CONDITION OF PROPERTY.
(a) Within three (3) Business Days after the Effective Date, Seller shall deliver to Buyer a current preliminary report Parcel 37 (the “Preliminary Report”). Within sixty (60) days after the Effective Date, Seller shall deliver a survey-prepared map depicting the proposed boundaries and configuration of the Property (the “Survey”). On or before the expiration of the Inspection Period, Buyer shall secure from the Title Company a commitment to issue the Title Policy to Buyer at Closing in the amount of the Purchase Price (the “Title Commitment”). No later than ten (10) Business Days after Buyer’s receipt of the Preliminary Report and the Survey, Buyer may disapprove of any of the matters reflected in the Preliminary Report, the Title Commitment or the Survey by delivering written notice to Seller and Escrow Holder (the “Notice of Defect”) specifying each matter which is disapproved, if any, by Buyer (each a “Disapproved Exception”) and stating the reasons for each disapproval. If Seller does not receive a Notice of Defect from Buyer by such date, Seller shall notify Buyer via email to Josh Morris (joshm@harvest.org), Jonathan Laurie (jonathanl@harvest.org) and Richard Alleway (ralleway@mannadevelopment.com) and Buyer shall have three (3) additional Business Days from the date of that email to submit its Notice of Defect. Any matters reflected in the Preliminary Report, the Title Commitment or the Survey that Buyer does not disapprove in the Notice of Defect shall be deemed approved by Buyer. Buyer’s failure to deliver the Notice of Defect by such date shall be conclusively deemed to constitute Buyer’s approval of the Title Commitment and Survey (if any) and satisfaction of the title condition under this paragraph 3.1.
(b) Within five (5) days after receiving the Notice of Defect, Seller shall deliver to Buyer and the Title Company notice as to whether Seller will cure or not cure each, or any, of the Disapproved Exception(s). Buyer’s failure to receive any notice from Seller within that 5‑day period shall be deemed to be notice to Buyer that Seller elected not to cure the Disapproved Exception(s). If Seller elects not to cure one or more Disapproved Exception(s), Buyer may terminate this Agreement prior to the expiration of the Inspection Period by written notice of termination to Seller and Escrow Holder, in which case Escrow Holder shall refund the Deposit to Buyer.
(c) A Disapproved Exception shall be considered to have been cured by Seller if the Title Company agrees to issue the Title Policy to Buyer either without that Disapproved Exception being reflected as an exception to coverage under the Title Policy or noting such exception and providing an endorsement fully insuring over such noted exception. The cost of such endorsement shall be borne by Seller.
(d) Notwithstanding the foregoing, Seller shall be obligated to discharge any mortgages, delinquent taxes, judgment liens, mechanics’ liens relating to work on the Property, and other monetary liens affecting the Property that are pre-existing or caused by Seller (other than governmental liens such as taxes and assessments not yet due) which are not solely and demonstrably the result of Buyer’s conduct or actions, or which affect a portion of Parcel 37 outside of the boundaries of the Property, and transfer the Property free from all tenants, encroachments, leases and licenses.
3.2 TITLE CONDITION OF THE UNIT. Promptly after Seller’s recordation of the Condominium Documents (as defined in paragraph 3.3(e) below), Escrow Holder shall promptly deliver a preliminary title report for the Unit (the “Unit Report”) and the updated Title Commitment (the “Unit Title Commitment”) to Buyer and thereafter Buyer shall have ten (10) Business Days to provide a Notice of Defect disapproving any matters shown in the Unit Report or Unit Title Commitment that were not shown in the Preliminary Report, Title Commitment or Survey that Buyer reviewed pursuant to Section 3.1. If Seller does not receive a Notice of Defect from Buyer by such date, Seller shall notify Buyer via email via email to Josh Morris (joshm@harvest.org), Jonathan Laurie (jonathanl@harvest.org) and Richard Alleway (ralleway@mannadevelopment.com) and Buyer shall have three (3) additional Business Days from the date of that email to submit its Notice of Defect. All matters in the Unit Report or Unit Title Commitment that Buyer does not so disapprove are deemed approved. Within five (5) days after receiving the Notice of Defect, Seller shall deliver to Buyer and the Title Company notice as to whether Seller will cure or not cure each, or any, of the Disapproved Exception(s). Buyer’s failure to receive any notice from Seller within that 5‑day period shall be deemed to be notice to Buyer that Seller elected not to cure the Disapproved Exception(s). If Seller elects not to cure one or more Disapproved Exception(s), or fails to respond within five (5) days, Buyer may within five (5) Business Days terminate this Agreement, in which case Escrow Holder shall refund the Deposit to Buyer.
3.3 DUE DILIGENCE AND CONDOMINIUM DOCUMENTS CONDITION.
(a) Within five (5) days after the Effective Date, Seller shall deliver to Buyer all of the documents set forth on Exhibit B (the “Document Inventory”) that are in Seller’s possession or control. Deliveries may be by electronic transmission or establishment of an online data room or file site. During the Inspection Period, Buyer may conduct Buyer’s physical inspection of the Property. Buyer acknowledges that it is currently in possession of a portion of the Property known as the Existing Campus Property pursuant to the Ground Lease and as a result Buyer already has some knowledge about the Property.
(b) Buyer shall have until 5:00 p.m. Hawaiian time on the last day of the Inspection Period to confirm, in Buyer’s sole and absolute discretion and Buyer’s sole expense, whether Buyer may feasibly acquire and use the Property for Buyer’s intended purpose. During the Inspection Period, Buyer shall have reviewed (or shall have had the opportunity to review) among other things: (i) the condition of the Property and all improvements thereon; (ii) the environmental, geological, soil and seismic conditions of the Property; (iii) all applicable laws, ordinances, conditions and requirements imposed by governmental bodies having jurisdiction over the Property or the development and use thereof, including zoning and land use characteristics of the Property; and (iv) the viability of the Property for Buyer’s intended uses, including as a church and preschool.
(c) If before the end of the Inspection Period, Buyer, in its sole and absolute discretion, determines to accept the condition of, and purchase, the Property, Buyer shall notify Seller and Escrow Holder in writing of its unconditional acceptance of the Property (the “Acceptance Notice”). If Seller and Escrow Holder have not received an Acceptance Notice from Buyer before the end of the Inspection Period, or if Buyer’s Acceptance Notice is subject to any conditions not acceptable to Seller in its sole discretion, this Agreement shall terminate, Escrow Holder shall return the Deposits to Buyer (less its share of Escrow Holder fees), and the parties shall have no further obligations under this Agreement except for those that expressly survive termination. If Seller and Escrow Holder receive an Acceptance Notice before the end of the Inspection Period, this feasibility condition shall be conclusively deemed satisfied in all respects. Buyer’s issuance of the Acceptance Notice does not waive or limit Buyer’s right to terminate this Agreement during the Permitting Period as provided in Section 3.4 below.
(d) No later than sixty (60) days after the Effective Date, Seller shall provide to Buyer initial drafts of the Condominium Documents (as defined in paragraph 3.2(e) below). Buyer shall have ten (10) Business Days after receipt of the Condominium Documents to provide written comments to Seller, and Seller and Buyer shall reasonably cooperate to agree on the final form of the Condominium Documents prior to the expiration of the Inspection Period. In the event Seller and Buyer are unable to reach an agreement on the final forms of the Condominium Documents prior to the expiration of the Inspection Period (as such period of time may be extended by agreement of Seller and Buyer), either party may terminate this Agreement by written notice to the other, and Escrow Holder shall return the Initial Deposit to Buyer (less its share of Escrow Holder fees), and the parties shall have no further obligations under this Agreement except for those that expressly survive termination.
(e) No later than sixty (60) days after the Effective Date, Seller shall at its expense cause (a) a licensed surveyor to prepare a condominium map (based on the Survey of the Property) for the creation of the Unit as a separate condominium unit within Parcel 37, and (b) prepare the Declaration of Condominium Property Regime and Condominium Association Bylaws for the proposed condominium (collectively, the “Condominium Documents”) that Seller will record prior to Closing to create a condominium property regime pursuant to the Hawaii Condominium Property Act, Chapter 514B Hawaii Revised Statutes (the “Condominium”) in which the Property is a separate spatial condominium unit. The Condominium Documents shall be subject to review and approval by Buyer and shall include, among other things:
(i) reserved rights and powers that Seller deems reasonably necessary to ensure its ability to unilaterally use, entitle, develop and or sell the remainder of Parcel 37 provided that such rights and powers do not materially interfere with the use of the Property by Buyer and do not alter or interfere any of Buyer’s improvements made thereat;
(ii) the right (but not the obligation) of Seller to subdivide the Property from the remainder of Parcel 37 as a separate lot (the “Subdivision”). Seller shall bear the costs of the Subdivision, provided that Buyer shall bear the costs of any required improvements or other actions that primarily benefit the Property. In case Seller initiates a Subdivision, Buyer shall cooperate reasonably in the processing of the Subdivision and shall, upon final approval of the subdivision, cooperate in the termination of the Condominium and such conveyances as are necessary to vest Buyer and Seller with fee title to their resulting lots, free and clear of any mortgages or other monetary liens incurred by the other, all at no out-of-pocket cost to Buyer, except as expressly set forth below. This means, among other things, that if Buyer has a mortgage loan Buyer must at its expense secure it’s lender’s agreement to modify the mortgage to reflect the conversion of the Property from a condominium unit to a lot.
(f) Promptly after Seller’s receipt of Buyer’s Notice to Proceed (as defined in paragraph 3.4(c) below), Seller shall record the Condominium Documents and register the Condominium with the Real Estate Commission of the State of Hawaii, and secure an effective date for a Developer’s Public Report for the Condominium Project or the unit comprising the Property (“DPR”). Upon issuance of the effective date for the DPR, Buyer shall execute such documentation as Seller reasonably requires and Buyer reasonably approves so as to confirm Buyer’s affirmation of this Agreement and Buyer’s waiver of any cancellation rights.
3.4 ENTITLEMENT CONDITION.
(a) No later than seven hundred thirty (730) days after the Effective Date (the “Permitting Period”), Buyer shall at its expense file and pursue an application (the “Entitlement Application”) with the Planning Department of the County of Maui (the “Planning Department”) any and all discretionary permits and approvals required for development, use and operation of the Permitted Uses and Improvements (the “Entitlements”). Seller shall provide any owner’s authorization that the Planning Department requires for such application, and upon Buyer’s written request, Seller shall cooperate with Buyer’s efforts to obtain the Entitlements at no material cost or liability to Seller. Buyer shall (i) upon Seller’s written request, apprise Seller of all material steps and developments in Buyer’s Entitlement Application and pursuit of the Entitlements, (ii) exercise good faith efforts to inform Seller in advance of all meetings or discussions regarding the Entitlements between Buyer (or its consultants) and government officials, and (iii) afford Seller the opportunity to participate in them provided such participation does not interfere with Buyer’s ability to obtain the Entitlements as reasonably determined by Buyer. Buyer shall be solely responsible for satisfying at Buyer’s expense any requirements or conditions of the Entitlements, and Buyer shall not have the right or power to bind Seller to comply with any such requirements or conditions without Seller’s prior written consent. If any requirements or conditions of the Entitlements are proposed that would impose obligations on Seller or lands owned by Seller other than the Land such conditions shall be subject to Seller’s approval in its sole discretion.
(b) Buyer shall have the right to extend the Permitting Period up to three (3) times for consecutive periods of sixty (60) days each (each, an “Entitlement Extension”), provided that Buyer shall have delivered written notice to Seller of Buyer’s Entitlement Extension prior to the expiration of the Permitting Period, and within two (2) Business Days of each Buyer’s Entitlement Extension election, Buyer shall deposit FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) with Escrow Holder (each, an “Extension Deposit”).
(c) Prior to the expiration of the Permitting Period, as may be extended, Buyer shall deliver to Seller and Escrow either written notice to proceed with the transaction described in this Agreement (“Notice to Proceed”), or written notice to terminate this Agreement, and in such instance this Agreement shall terminate and the Deposit shall be fully refunded to Buyer, less its share of Escrow Holder’s fees. The Notice to Proceed shall designate the intended Closing Date for this transaction, which shall be no later than thirty (30) days after Seller’s receipt of the Notice to Proceed.
(d) At any time prior to final approval of the Entitlements, Buyer may terminate this Agreement by written notice to Seller and Escrow Holder if Buyer determines in its sole discretion that it is unable or unlikely to secure the Entitlements on terms and conditions acceptable to Buyer. In addition, if Buyer has not secured final approval of the Entitlement Conditions by the Entitlement Deadline, as may be extended, either Buyer or Seller may terminate this Agreement by written notice to the other and Escrow Holder. In case of any termination under this paragraph Buyer’s Deposit shall be released to Buyer in full, including the Extension Deposits, with accrued interest (and less its share of Escrow Holder’s fees), and neither party shall have any further obligation under this Agreement except for obligations that expressly survive termination. Seller and Buyer acknowledges that in the event this Agreement is terminated, the Ground Lease shall not be terminated and shall continue in full force and effect.
(e) Buyer shall be solely responsible for all costs of pursuing and securing the Entitlements. In the event Seller is named as a party in any administrative procedure or litigation regarding the Entitlement Application or Entitlements, Buyer shall defend, indemnify and hold Seller harmless from and against any claims, costs, losses or liabilities in such actions, using counsel reasonably acceptable to Seller.
4. OPERATION OF PROPERTY.
4.1 EXISTING OPERATIONS. Prior to Closing, and subject to the Ground Lease, Seller may use, operate, lease and license portions of the Property, provided that any leases or licenses shall terminate prior to or at Closing and provided that the Property shall not be adversely affected in any way.
5. CONDITIONS PRECEDENT TO CLOSING.
5.1 CONDITIONS PRECEDENT TO SELLER’S PERFORMANCE. Subject to the notice and cure provisions set forth in paragraph 7.2 below, Seller’s obligation to sell the Property is subject to the satisfaction (or waiver) of all conditions set forth below (which are for Seller’s benefit) within the time periods specified.
5.1.1 PERFORMANCE OF COVENANTS. Buyer shall have complied in all material respects with the terms and provisions of this Agreement.
5.1.2 DELIVERY OF DOCUMENTS. Buyer shall have signed, acknowledged and delivered all monies, documents, and instruments to Seller and to Escrow Holder as required by this Agreement.
5.1.3 NO BREACH OF REPRESENTATIONS OR WARRANTIES. There shall be no material breach of Buyer’s representations and warranties set forth in paragraph 11.6.
5.2 CONDITIONS PRECEDENT TO BUYER’S PERFORMANCE. Subject to the notice and cure provisions set forth in paragraph 7.2 below, Buyer’s obligation to purchase the Property is subject to the satisfaction (or waiver in writing) of all conditions set forth below (which are for Buyer’s benefit) within the time periods specified.
5.2.1 PERFORMANCE OF COVENANTS. Seller shall have complied in all material respects with the terms and provisions of this Agreement.
5.2.2 DELIVERY OF DOCUMENTS. Seller shall have signed, acknowledged and delivered all monies, documents, and instruments to Seller and to Escrow Holder as required by this Agreement.
5.2.3 NO BREACH OF REPRESENTATIONS OR WARRANTIES. There shall be no material breach of Seller’s representations and warranties set forth in paragraph 11.5.
5.2.4 ISSUANCE OF TITLE POLICY. The Title Company shall be irrevocably and unconditionally prepared to issue the Title Policy to Buyer as of Closing in the form agreed upon by the parties prior to the expiration of the Inspection Period, and as updated in the Unit Title Commitment form agreed to in paragraph 3.2(a).
5.2.5 CONDITIONS IN PARAGRAPH 3 SATISFIED OR WAIVED. The conditions in paragraph 3 have been satisfied, waived, or deemed waived.
6. CLOSING.
6.1 THE CLOSING.
(a) Subject to satisfaction of all conditions precedent to Closing, including those set forth in paragraph 5, the Closing and Close of Escrow shall occur on the Closing Date identified in paragraph 2.8.
(b) The term “Closing Date” as used in this Agreement means the day and time the Limited Warranty Deed is recorded by the Escrow Holder in the Bureau. The terms “Close of Escrow” and “Closing” is used in this Agreement to mean the consummation of the transactions contemplated herein.
6.2 SELLER’S CLOSING OBLIGATIONS. On or before 12:00 p.m. on the second Business Day immediately before the anticipated Close of Escrow, Seller shall deliver to Escrow Holder, each duly executed by Seller and where required acknowledged:
(a) The Condominium Documents, unless previously recorded.
(b) The Limited Warranty Unit Deed with Reservations, Power of Attorney and Covenants in a form attached as Exhibit C (the “Limited Warranty Unit Deed”) conveying the Property to Buyer subject only to the Permitted Exceptions;
(c) A recordable Memorandum of Post-Closing Agreements and Obligations in the form attached as Exhibit D (the “Memorandum”) that documents the post-closing provisions of this Agreement, including, but not limited to, the post-closing agreements set forth in paragraph 8.
(d) Seller’s Closing Certificate in the form attached as Exhibit E (the “Closing Certificate”);
(e) The Declaration of Covenants, Conditions and Restrictions with Authorization of Permitted Uses and Improvements Use in the form attached hereto as Exhibit F (the “Declaration of Covenants, Conditions and Restrictions”) by which, among other things, Seller allocates to the Property the rights necessary to undertake the Permitted Uses and Improvements, prohibits all other uses and improvements, and restricts all structures at the Property to a maximum height of thirty (30) feet above existing or finish grade, whichever is lower;
(f) The Termination of the Ground Lease in the form attached as Exhibit G;
(g) A certificate of Seller in the form required of an entity transferor as set forth in Section 1.1445-2(b)(2)(iii) of the Regulations under Section 1445 of the Internal Revenue Code of 1986 and a certificate of exemption from the withholding of tax on the disposition of Hawaii real property (Form N-289);
(h) Any additional funds and/or instruments (signed and acknowledged by Seller, if appropriate) as may be necessary to comply with this Agreement; and
(i) Any title affidavit reasonably required by the Title Company in order to deliver the Title Policy in accordance with the terms hereof, in form that Seller agreed to deliver during the Inspection Period.
6.3 BUYER’S CLOSING OBLIGATIONS. On or before 12:00 p.m. on the second Business Day immediately before the anticipated Closing Date, Buyer shall deliver to Escrow Holder:
(a) Cash or other immediately available funds equal to that amount provided for in paragraph 2.5(e). The cash or its equivalent must be by direct deposit or by wire transfer of funds actually made in Escrow Holder’s depository bank account by 1:00 p.m. on the second Business Day immediately before the anticipated Closing Date;
(b) Any additional funds and/or instruments (signed and acknowledged by Buyer, if appropriate) as may be necessary to comply with this Agreement; and
(c) Executed counterpart of the documents delivered by Seller under paragraph 6.2 that require Buyer’s signature.
6.4 TITLE POLICY.
(a) As of the Close of Escrow, the Title Company shall issue and deliver to Buyer, the Title Policy with liability in the amount of the Closing Price, insuring title to the Property vested in Buyer, subject only to the Permitted Exceptions. Subject to the following paragraph, Seller and Buyer shall each pay one half of the premium for the Title Policy.
(b) If Buyer desires any special endorsements to the coverage provided by the Title Policy (including, without limitation, extended ALTA coverage), Buyer shall obtain a commitment therefor prior to the expiration of the Inspection Period and shall pay for these endorsements and coverage, including the cost of any ALTA survey that Buyer secures during the Inspection Period. The issuance of the endorsements and/or coverage shall not unduly delay the Closing or extend the Inspection Period.
(c) After the Close of Escrow and issuance of the Title Policy, except for breaches of warranties of title in the Limited Warranty Unit Deed, the issuance of the Title Policy shall be in lieu of any express or implied warranty of Seller concerning title to the Property. The provisions of this paragraph 6.4 shall survive any termination of this Agreement.
7. TERMINATION OF THIS AGREEMENT.
7.1 If Escrow fails to close as of 5:00 p.m. on the Closing Date, either party may terminate this Agreement and Escrow shall terminate and cancel without further action by Escrow Holder or any party and notwithstanding any provision contained in Escrow Holder’s general provisions (the “General Provisions”), and the Deposits shall be refunded to Buyer in full if the failure of closing is not due to a Default by Buyer. Termination of this Agreement and cancellation of Escrow, as provided in this paragraph, shall be without prejudice to whatever legal rights Buyer or Seller may have against each other arising from this Agreement.
7.2 If any condition or performance is not satisfied or waived within the time period and in the manner set forth in this Agreement (“Default”), then the party for whose benefit the condition or performance exists may terminate this Agreement after providing five (5) Business Days written notice and opportunity to cure to the other party and the failure of such party to satisfy or cure such Default (except that in the event the nature of such Default requires longer than five (5) Business Days to cure, then the cure period shall be extended, together with the Closing Date, if applicable, for such reasonable period of time as agreed upon by the parties to allow such party to diligently complete its cure of same). Notwithstanding the foregoing, in the event of a Default by failing to close on the Closing Date, there shall be no cure period.
7.3 If either party elects to terminate this Agreement pursuant to a right to do so hereunder, then each of the following shall occur, and upon completion thereof this Agreement shall terminate: Escrow shall be deemed automatically cancelled regardless of whether cancellation instructions are signed; neither party shall have any further obligation to the other under this Agreement (except under paragraphs 12.1 and 12.2 which shall survive termination of this Agreement); all rights granted to Buyer under this Agreement and in the Property shall terminate, except as provided to the contrary in paragraph 7.6 (concerning Buyer’s right to pursue all remedies at law or in equity, including specific performance); and, except as provided to the contrary in paragraph 7.5 (concerning Seller’s right to retain the Deposit(s) as liquidated damages), Escrow Holder shall return all funds and documents then held in Escrow to the party depositing the same and Seller shall promptly return any funds and documents paid or delivered to Seller by Escrow Holder or by Buyer outside of Escrow.
7.4 If the Escrow fails to close solely and demonstrably because of either party’s default, the defaulting party shall be liable for all Escrow cancellation and Title Company charges. If Escrow fails to close for any other reason, Buyer and Seller shall each pay one half of any Escrow cancellation and Title Company charges. The provisions of this paragraph 7 shall survive any termination of this Agreement.
7.5 SUBJECT TO PARAGRAPH 7.2, IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT OR OTHERWISE DEFAULTS HEREUNDER FOR ANY REASON OTHER THAN SELLER’S DEFAULT (AS EVIDENCED BY WRITTEN NOTICE FROM BUYER TO SELLER AND ESCROW HOLDER) AND/OR THE NONSATISFACTION OF THE CONDITIONS TO BUYER’S PERFORMANCE SET FORTH IN PARAGRAPHS 5.2.1, 5.2.2, 5.2.3 AND 5.2.4 ABOVE OR FOR OTHER REASON PERMITTED UNDER THIS AGREEMENT, SELLER SHALL BE RELEASED FROM ALL OF ITS OBLIGATION UNDER THIS AGREEMENT, ESCROW HOLDER SHALL IMMEDIATELY DELIVER THE DEPOSIT(S) (THEN HELD BY ESCROW HOLDER) TO SELLER, AND SELLER SHALL BE ENTITLED TO RETAIN THE DEPOSIT(S) PREVIOUSLY RELEASED TO SELLER AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. THE PARTIES EXPRESSLY AGREE THAT THE AMOUNT OF THE DEPOSITS RELEASED PURSUANT HERETO IS A REASONABLE ESTIMATE OF THE EXTENT TO WHICH SELLER WOULD BE DAMAGED BY BUYER’S FAILURE TO COMPLETE THIS PURCHASE AND, IN LIGHT OF THE DIFFICULTY THE PARTIES WOULD HAVE IN DETERMINING SELLER’S ACTUAL DAMAGES, SHALL BE SELLER’S EXCLUSIVE REMEDY FOR DAMAGES BY REASON OF BUYER’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY OR OTHERWISE DEFAULTS UNDER THIS AGREEMENT.
7.6 Subject to paragraph 7.2, if a Seller Default should occur, Buyer shall be entitled to all remedies in law or equity, including without limitation, to either (1) assert and seek judgment against Seller for specific performance of this Agreement, or (2) terminate this Agreement by written notice to Seller and the Escrow Company, in which event the Deposit shall be returned to Buyer. If Buyer elects to terminate this Agreement per this paragraph 7.6, Seller shall pay for Buyer’s actual out-of-pocket Due Diligence costs, in an amount not to exceed $125,000.00.
8. POST-CLOSING AGREEMENTS.
8.1 OPTION TO PURCHASE RIGHT TO CONSTRUCT ADDITIONAL DWELLINGS. Up to five (5) years after Closing (the “Option Deadline”), Buyer shall have the option to purchase the right to construct up to three (3) additional dwellings or residential units no greater than 3,000 square feet in size each, on the Property (the “Option”). The purchase price for the Option shall be TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00) per residential unit (the “Option Purchase Price”). To exercise the Option, Buyer shall provide written notice to Seller, prior to the expiration of the Option Deadline, notifying Seller of the number of residential units Buyer desires to construct. Buyer may receive credit up to $500,000 off the Option Purchase Price for improvements to the Property that provide benefit to Seller’s adjacent lands, the determination of which shall be in Seller’s sole but reasonable discretion. Upon payment of the Option Purchase Price and approval by Seller, the parties shall execute an amendment to the Declaration of Covenants, Conditions and Restrictions to allow such additional residential uses.
8.2 OPERATION OF PRESCHOOL. Within two (2) years of Closing, Buyer shall have the obligation to commence operation of a preschool serving a similar local clientele and an equal or greater number of students as the current existing Kapalua Preschool. The terms and conditions of Buyer’s obligation to construct and commence operation of a preschool shall be further defined in the post-closing agreement, which shall be negotiated prior to the expiration of the Inspection Period. Buyer acknowledges that at a minimum it will be obligated to commence operations within two (2) years of Closing.
8.3 SELLER’S RIGHT OF FIRST REFUSAL TO PURCHASE THE PROPERTY. Seller shall have a right of first refusal to purchase the Property in the event Buyer elects to sell the Property as set forth in this Section 8.3, which shall survive Closing.
8.3.1 In the event Buyer receives a bona fide offer from a third party to purchase the Property, and Buyer intends to accept such offer, Buyer shall notify Seller of such offer and deliver a copy of the offer to Seller, or in the event Buyer has submitted a counter-offer to such third party and the counter-offer has been accepted by such third party, Buyer shall deliver to Seller a copy of the accepted counter-offer. Upon receipt of the third party offer and/or counter-offer, which shall specify the purchase price and the material financial terms of the proposed transaction and the proposed closing date (the “Offer”), Seller will have the right and option to purchase the Property on the same terms and conditions as set forth in the third party offer or counter-offer, if applicable (the “Right of First Refusal”).
8.3.2 If Seller desires to exercise the Right of First Refusal, Seller shall deliver written notice to Buyer of its election to purchase the Property pursuant to the Offer, no later than 5:00 p.m. HST on the tenth (10th) Business Day following the date Seller receives the Offer from Buyer (the “ROFR Notice”). If Seller delivers the ROFR Notice within the time period provided, the parties shall proceed to close the purchase of the Property in accordance with the Offer, and Buyer shall not sell the Property to any third party. If Seller fails to timely deliver the ROFR Notice, or elects not to purchase the Property, Buyer shall be free to sell the Property to the third party on the Offer terms; provided, however, that if the Property is not sold to such third party in accordance with the Offer, or if the terms of the Offer materially change to be more favorable to the third party (e.g., a reduced purchase price (i.e., reduced by at least 5%) or an agreement by Buyer to provide seller financing), Buyer shall again provide Seller with a copy of the revised Offer and Seller shall again have a right to exercise its Right of First Refusal at the revised Offer terms in accordance with this paragraph 8.3.2. but within a period of five (5) Business Days following delivery of the revised Offer to Seller.
8.3.3 Closing Procedure. If Seller (as buyer) exercises the Right of First Refusal, the terms and conditions of the closing of the sale of the Property to Seller (as buyer) (the “ROFR Closing”) shall be as follows:
(a) Escrow. Seller (as buyer) will establish an escrow to close the sale of the Property with Escrow Holder.
(b) Title Commitment. Seller (as buyer) will request that Title Company, issue to Seller (as buyer) a title commitment covering title to the Property (the “ROFR Title Commitment”) within ten (10) Business Days following the date that Seller (as buyer) gives to Buyer (as seller) the ROFR Notice, at Seller’s sole cost.
(c) Title Objections. Within ten (10) Business Days following receipt of the ROFR Title Commitment, Seller (as buyer) may notify Buyer (as seller) in writing of any exceptions set forth in the ROFR Title Commitment which are unacceptable to Seller (as buyer) (the “ROFR Title Objections”). Within ten (10) Business Days after Buyer (as seller) receives any ROFR Title Objections, Buyer (as seller) will notify Seller (as buyer) in writing whether Buyer (as seller) will (a) cause the removal or discharge of each of the ROFR Title Objections on or prior to the ROFR Closing, (b) arrange for the Title Company to insure over such ROFR Title Objections to the satisfaction of Seller (as buyer), or (c) not take any action to remove, discharge or insure over such ROFR Title Objections. If Buyer (as seller) is unable or unwilling to eliminate or modify any or all of the ROFR Title Objections to the reasonable satisfaction of Seller (as buyer), Seller (as buyer) may proceed with the purchase of the Property subject to the ROFR Title Objections or withdraw and cancel its exercise of the Right of First Refusal, by delivering written notice thereof to Buyer (as seller) within five (5) days after Seller (as buyer) receives written notice from Buyer (as seller) of Buyer’s (as seller) decision to not cure any or all of ROFR Title Objections. If Seller (as buyer) withdraws or cancels its exercise of the Right of First Refusal as a result of Buyer’s (as seller) decision not to cure, Buyer (as seller) shall have one (1) year from Buyer’s (as seller) receipt of notice thereof to sell all or a portion of the Property to a third party on the same (or more favorable to Buyer (as seller)) terms and conditions accepted by Seller (as buyer) and subject to Buyer’s (as seller) position on the ROFR Title Objections. For avoidance of doubt, in such third party transaction Buyer (as seller) shall not remove, discharge or insure over any ROFR Title Objections raised by Seller (as buyer) which Buyer (as seller) elected not to cure.
(d) ROFR Closing Date. The closing date for the sale of the Property to Seller (as buyer) shall be such date as shall be selected by Seller (as buyer), but in any event shall not be more than thirty (30) days following Seller’s (as buyer) receipt of the ROFR Title Commitment (the “Closing Date”).
(e) Tax-Deferred Exchange; ROFR Closing Extension. Either party may incorporate in the sale or acquisition of the Property as an Exchange. Both parties agree to reasonably cooperate with the other party to permit such party to accomplish the Exchange, but at no additional expense or liability to the other party for the Exchange, and with no delay in the ROFR Closing. Buyer’s (as seller) and Seller’s (as buyer) cooperation will include, without limitation, executing such supplemental documents as either party may reasonably request. Seller (as buyer) shall have three (3) options to extend the ROFR Closing Date by up to thirty (30) days each (i.e., up to ninety (90) days).
(f) Closing Costs. Closing costs for the sale of the Property to Seller (as buyer) will be allocated and borne as follows:
(i) Buyer’s (as seller) Closing Costs. Buyer (as seller) shall be responsible for (i) Buyer’s (as seller) own legal fees, (ii) the costs of standard owner’s title policy for Seller (as buyer), (iii) one -half of conveyance taxes, (iv) one-half of all recording fees, (v) one-half of all Escrow Holder fees, and (vi) any other fees and expenses not specifically mentioned herein and customarily paid by sellers in Hawaii real estate transactions.
(ii) Seller’s (as buyer) Closing Costs. Seller (as buyer) shall be responsible for (i) Seller’s (as buyer) own legal fees, (ii) the costs any additional endorsements to the standard owner coverage under Seller’s (as buyer) title policy and any Title Company fees required for Buyer to provide the ROFR Title Commitment, (iii) one-half of conveyance taxes, (iv) one-half of all recording fees, (v) one-half of all Escrow Holder fees, and (vi) any other fees and expenses not specifically mentioned herein and customarily paid by buyers in Hawaii real estate transactions.
(g) Title. At the ROFR Closing, Buyer (as seller) will convey via limited warranty unit deed to Seller (as buyer) good, marketable and insurable title to the Property, free and clear of all mortgages, debts, monetary liens and security interests.
(h) Prorations. Real property taxes and assessments will be prorated as of the ROFR Closing.
8.4 NO OPPOSITION. Buyer shall not oppose or contest Seller’s permitting and government approvals of Seller’s adjacent and nearby lands and projects within the Kapalua Resort so long as such permitting or approvals do not require any material alterations to be made to the Property or the Improvements or prevent Buyer from using the Property for the Permitted Uses. In the event Buyer shall breach this obligation, Seller shall have the right to sue only for actual damages and a preliminary and/or permanent injunction.
8.5 SURVIVAL. The provisions of this paragraph 8 shall survive Closing. The post-closing agreements set forth in this paragraph 8 shall be memorialized in the Memorandum.
9. GENERAL ESCROW PROVISIONS.
9.1 ESCROW INSTRUCTIONS. This Agreement when signed by Buyer and Seller shall also constitute Escrow Instruction to Escrow Holder.
9.2 OPENING OF ESCROW. Escrow Holder shall notify Buyer and Seller in writing of the date of receipt of this fully executed Agreement.
9.3 GENERAL PROVISIONS. Notwithstanding anything to the contrary in this Agreement, the General Provisions of Escrow Holder, if any, which are either attached to this Agreement or later signed by the parties, are incorporated herein by reference to the extent they are not inconsistent with the provisions of this Agreement. If there is any inconsistency between the provisions of those General Provisions and any of the provisions of this Agreement, the provisions of this Agreement shall control. If any requirements relating to the duties or obligations of the Escrow Holder are unacceptable to the Escrow Holder, or if the Escrow Holder requires additional instructions, the parties agree to make any deletions, substitutions and additions as counsel for Buyer and Seller shall mutually approve and which do not materially alter the terms of this Agreement. Any supplemental instructions shall be signed only as an accommodation to Escrow Holder and shall not be deemed to modify or amend the rights of Buyer and Seller, as between Buyer and Seller, unless these supplemental instructions expressly so provide.
9.4 PRORATIONS. Except for taxes, utilities and other charges and assessments paid by Buyer under the Ground Lease and accruing prior to the Closing Date, all real property taxes, rents, utilities, assessments, and maintenance charges for the Property shall be prorated between Buyer and Seller as of 12:01 a.m. on the Closing Date. Rent under the Ground Lease shall be prorated as of that date and time as well. Until such time as the County of Maui commences separate assessments of the units in the Condominium any post-Closing real property tax assessments of the Unit shall be allocated between Seller and Buyer based on Seller’s and Buyer’s mutually agreed upon reasonable determination, provided that if the County assesses or taxes the land comprising the Property based on a different classification or use than the remainder of Parcel 37 (including the imposition of any rollback tax) then Buyer shall be responsible for the taxes thus assessed. This paragraph 9.4 shall survive closing.
9.5 PAYMENT OF CLOSING COSTS. Seller and Buyer shall share equally the fees of Escrow Holder and the conveyance tax. Seller and Buyer shall each pay one half of the base premium of the Title Policy (excluding endorsements and extended coverage) in the amount of the Purchase Price. Seller shall pay all recording fees. Buyer shall pay all premiums for the Title Policy in excess of the base premium. Each party shall pay its own attorneys’ fees. There are no brokerages commissions or fees payable in connection with Closing.
9.6 ESCROW HOLDER AUTHORIZED TO COMPLETE BLANKS. If necessary, Escrow Holder is authorized to insert the Closing Date as the date of the Limited Warranty Deed.
9.7 RECORDATION AND DELIVERY OF DOCUMENTS. When Buyer and Seller have satisfied their respective closing obligations under paragraphs 6.2 and 6.3 and each of the conditions under paragraphs 3 and 5 have either been satisfied or waived, Escrow Holder shall cause the Limited Warranty Unit Deed and all other Closing documents requiring recordation to be recorded with the Bureau, in a manner so that the Title Company is in a position to issue the Title Policy as provided in paragraph 6.4(a). Immediately after the Close of Escrow, Escrow Holder shall deliver to Seller and to Buyer all documents and funds to which each is entitled. As soon as practicable after recordation, Escrow Holder shall deliver a copy of all documents recorded through escrow. Escrow Holder is authorized to insert the Closing Date as the date of all documents delivered or recorded at Closing.
10. BROKERAGE COMMISSIONS. It is understood that there are no brokers involved in this transaction. Each party shall indemnify and hold the other harmless from and against all liabilities, costs, damages, and expenses, including without limitation attorneys’ fees, resulting from or arising out of any claims for finder’s fees or commissions arising out of any contract or commitments made by or through the indemnifying party.
11. CONDITION OF PROPERTY/REPRESENTATION AND WARRANTIES.
11.1 CONDITION OF PROPERTY. Except as otherwise provided herein, Buyer agrees (a) that it is purchasing the Property on an “AS IS” basis and based on its own investigation of the Property, (b) that Seller has made no warranty, representation or guarantee, expressed, implied or statutory, written or oral, including, without limitation, any implied warranty of merchantability or fitness for any purpose or of reasonable workmanship, concerning the Property or any of the improvements located thereon or therein, and (c) that Seller has made no warranty, representation or guarantee as to any government limitation or restriction, or absence thereof, pertaining to the Property, or as to the presence or absence of any latent defect, subsurface soil condition, environmental condition, hazardous substance, toxic waste or any other matter pertaining to the physical condition of the Property (collectively, the “Property Conditions”). The entire risk as to the quality and performance of the Property and Buyer’s use of the Property is with Buyer, and if the Property proves defective following the Closing Date, Buyer, and not Seller, assumes the entire risk and costs of all necessary servicing, curing, correcting, or repair of the defects. In making its decision to purchase the Property, Buyer represents that it has had sufficient opportunity to review, investigate, study and conduct tests on the Property and that it has relied solely upon its investigation of the Property and the Closing Certificate. Except as otherwise provided herein, and in the Closing Certificate, all of Seller’s statements, whenever made, are made only as an accommodation to Buyer and are not intended to be relied or acted upon in any manner by Buyer. All documents, records, agreements, writings, statistical and financial information and all other information (together “Documents”) which have been given to Buyer by Seller have been delivered in good faith as an accommodation to Buyer and without any representation or warranty as to the accuracy, enforceability, or assignability of any of the Documents, all of which Buyer relies on at its own risk. Buyer acknowledges that Seller has made no representation regarding the availability of, or amount of, any fee, assessment, or cost relating to the development, construction, occupancy or ownership of the Property. Seller has not made any representation, warranty or guarantee as to any land use controls or other laws, rules, and regulations of any governmental agency having jurisdiction applicable to the Property. Buyer shall be solely responsible for complying with all land use and environmental controls and other laws, rules, and regulation, including without limitation, those pertaining to hazardous substances and toxic wastes.
11.2 ADDITIONAL DISCLAIMERS. Without limiting the other provisions set forth in this paragraph 11, Buyer acknowledges and agrees to the following:
(a) Buyer acknowledges that (i) the Property is or may be located adjacent to or in the vicinity of various construction activities, including, but not limited to, ongoing residential and commercial and related construction (collectively, the “Development Activities”), (ii) these Development Activities may result in noise, dust, vibration and other nuisances, disturbances or hazards to Buyer and to persons and property on or within the Property; (iii) no representations or warranties are made by Seller or any of its affiliated companies, their respective employees or agents concerning plans, or the absence of plans, by Seller or others for future development of adjacent or nearby properties, and any plans for the future development of adjacent and nearby properties are subject to change in the sole and absolute discretion of Seller; and (iv) Seller makes no representations regarding the view from the Property or any view easements or rights, and the views from the Property are not guaranteed and may be altered, diminished, eliminated or blocked entirely by the future development of adjacent or surrounding properties (items (i) through (iv) are hereinafter collectively called the “Development Effects”).
(b) Buyer acknowledges that the Property is adjacent to, nearby or in the vicinity of lands being, or which in the future may be, actively used for the growing, ranching, harvesting and processing of livestock and agricultural products (such activities being herein collectively called the “Agricultural Activities”), which activities may from time to time bring upon the Project or result in surface water runoff, noise, soot, smoke, dust, light, heat, vapors, odors, chemicals, vibrations, insect pests, agricultural chemicals, particulates and similar substances and nuisances (collectively, the “Agricultural By-Products”). Buyer hereby assumes complete risk of and forever releases Seller from all claims for damages (including, but not limited to, consequential, special, exemplary and punitive damages) and nuisances occurring on the Lot or elsewhere in the Project and directly arising out of any Agricultural Activities or Agricultural By-Products. Without limiting the generality of the foregoing, Buyer hereby, with full knowledge of its rights, forever: (i) waives any right to require Seller, and releases Seller from any obligation, to take any action to correct, modify, alter, eliminate or abate any Agricultural Activities or Agricultural By-Products, and (ii) waives any right to file any suit or claim against Seller for injunction or abatement of nuisances. Buyer hereby agrees that any Agricultural Activities or Agricultural By-Products, and any claim, demand, action, loss, damage, liability, cost or expense arising therefrom, shall not constitute a breach of any covenant or warranty of Seller under this Agreement or be the basis for a suit or other claim for injunction or abatement of nuisances, and Buyer hereby forever waives any right to file any such suit or claim.
11.3 RESERVATION OF EASEMENTS AND OTHER RIGHTS. Without limiting the other provisions set forth in this paragraph 11, Buyer and Seller acknowledge and agree to the following:
(a) Buyer acknowledges the Property may be subject to existing drainage and flowage from adjacent and nearby properties.
(b) The Limited Warranty Unit Deed shall subject the Property to such other easements as, prior to the end of the Inspection Period, Seller has granted, reserved, or reserves, the right to grant at Seller’s sole discretion.
(c) Seller agrees that Buyer shall have the right to construct an easement road in the approximate location depicted on Exhibit A-1 attached hereto (or in such other location as is mutually acceptable to Seller and Buyer), at Buyer’s expense. During the Inspection Period the parties shall mutually agree on the form of a grant of non-exclusive easement for such road.
11.4 ASSUMPTION OF RISK AND WAIVERS. Buyer represents and warrants to Seller that Buyer, in Buyer’s sole discretion, has determined that the benefits of owning and enjoying the Property outweigh the risks of the Property Conditions. Buyer hereby covenants and agrees to assume all risks of impairment of Buyer’s use and enjoyment of the Property, loss of market value of the Property, and property damage or personal injury arising from the Property Conditions. Upon Closing, Buyer shall assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions and the effect of the Property Conditions, may not have been revealed by Buyer’s investigations; and Buyer, upon Closing, shall be deemed to have waived, relinquished, and released Seller (and Seller’s respective officers, directors, shareholders, members, managers, employees, and agents) from and against any and all claims, demands, causes of action (including causes of action in tort), losses, damages, liabilities, costs and expenses (including attorneys’ fees and court costs) of any and every kind or character, known or unknown, which Buyer might have asserted or alleged against Seller (and its officers, directors, shareholders, members, managers, employees, and agents) at any time by reason of or arising out of any latent or patent defects or physical conditions, violations of any applicable laws (including, without limitation, any environmental or zoning laws), the Property Conditions, and any and all other acts, omissions, events, circumstances, or matters regarding the Property. Buyer agrees that should any clean-up, remediation, or removal or hazardous substances or other environmental conditions on the Property be required after the date of Closing, such clean-up, removal or remediation shall be the responsibility of and shall be performed at the sole cost and expense of Buyer.
11.5 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to Buyer that as of the Effective Date, the last day of the Inspection Period and the Closing:
(a) Seller is the owner of the Property and has the legal right, power, capacity and authority to execute this Agreement and perform all of the obligations of Seller under this Agreement. This Agreement is the valid, binding and enforceable obligation of Seller. All action necessary to authorize the execution, delivery and performance of this Agreement by Seller has been taken and such action has not been rescinded or modified. Each person signing this Agreement on behalf of Seller is duly authorized and empowered to do so.
(b) Seller is not subject to any judgment or decree of a court of competent jurisdiction or governmental agency that would limit or restrict Seller’s right to enter into and carry out this Agreement.
(c) To Seller’s actual knowledge, without inquiry, (1) Seller has not received written notice from any governmental authority asserting that there are uncured violations of any law, ordinance, order or requirement of any governmental authority with respect to the Property, (2) Seller has no specific knowledge of any such uncured violations (with the caveat that many of the existing Improvements at the Property are old and pre-date current laws and codes, such that Seller cannot make any assurance that they are compliant), and (3) there are no actions, suits or proceedings, pending or threatened, before any judicial body or any governmental authority or any other writ, injunction, decree, or demand of any court or governmental authority concerning the Property.
(d) Seller has not received any uncured written notice from any applicable governmental authority that the Property is not in substantial compliance with any federal, state or local statute, ordinance, rule, regulation, requirement or code relating to the ownership, use and operation of the Property.
(e) The representations and warranties of Seller set forth in paragraph 11.5 as remade by the certificate of Seller to be delivered to Buyer at Closing shall survive Closing for a period of twelve (12) months.
(f) Other than this Agreement and any agreements disclosed in the Preliminary Report or by Seller during the Inspection Period, there are no contracts for sale or options to purchase or any other agreements existing and in force with respect to or in any manner affecting all or any portion of the Property or any interest therein, including any service or maintenance contracts, written leases, or occupancy agreements.
(g) To Seller’s actual knowledge, Seller has not received written threat of condemnation of the Property from any governmental authority or otherwise been told by a governmental official that condemnation of the Property is planned and there is no condemnation pending against the Property, or any part thereof.
The term “to Seller’s actual knowledge” shall mean the actual knowledge of Race Randle.
11.6 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to Seller that:
(a) Buyer has the capacity and authority to execute this Agreement and perform the obligations of Buyer under this Agreement. All action necessary to authorize the execution, delivery and performance of this Agreement by Buyer has been taken and such action has not been rescinded or modified. Each person signing this Agreement on behalf of Buyer is duly authorized and empowered to do so.
(b) Buyer is not subject to any judgment or decree of a court of competent jurisdiction or governmental agency that would limit or restrict Buyer’s right to enter into and carry out this Agreement.
(c) Buyer shall have examined and investigated to Buyer’s satisfaction the physical condition of the Property and the Document Inventory during the Inspection Period. Except for Seller’s representation and warranties set forth in paragraph 11.6 hereof and the Closing Certificate, Buyer has not relied and will not rely on, and Seller is not liable for or bound by, any express or implied warranties, guaranties, statements, representations or information pertaining to the Property or relating thereto made or furnished by Seller.
(d) To Buyer’s actual knowledge, Buyer is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the “Orders”. Neither Buyer nor, to the best of Buyer’s knowledge, any beneficial owner of Buyer (a) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”), or (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (c) is owned or controlled by, or acts for or on behalf of, any person on the Lists or any other person who has been determined by competent authority to be subject to the prohibitions contained in the Orders.
(e) Buyer has not filed or been the subject of any filing of a petition under the Federal Bankruptcy Law or any federal or state insolvency laws or laws for composition of indebtedness or for the reorganization of debtors and Buyer is not insolvent.
11.7 EFFECT AND SURVIVAL. Seller and Buyer agree that the provisions of paragraphs 11.1 through 11.7 shall survive Closing.
11.8 COVENANTS OF SELLER. Seller hereby covenants and agrees with Buyer that from and after the execution of this Agreement until the Closing that:
(a) Seller will maintain the Property in a condition consistent with its condition on the date of execution of this Agreement.
(b) Except for the agreements and easements contemplated herein, Seller will not enter into any agreement, written or oral, that will be binding on Buyer or the Property subsequent to Closing.
(c) Except as may be requested by Buyer in writing, Seller will not take, approve or consent to any action or omission that would change the zoning, uses, permits or licenses of or for the Property.
(d) Except as otherwise contemplated herein, Seller shall not place on, nor consent to the placement on, any of the Property, any lien, encumbrance, or other matter which would constitute an encumbrance or title exception to the Property and/or under Schedule B of the Preliminary Report unless such matter shall be pre-approved by Buyer or released prior to Closing at no cost to Buyer.
(e) Seller agrees not to take any action or fail to take any action after the date of the execution of this Agreement and prior to Closing which will cause or prevent the Property from being in compliance with the provisions of this Agreement or which will cause or prevent the Title Company to issue to Buyer the Title Policy with liability in the full amount of the Closing Price showing Buyer in title, subject only to the Permitted Exceptions. Consistent therewith, Seller shall satisfy all customary requirements and other matters set forth in the Title Commitment so that the same are deleted and not transferred to Schedule B of the Title Policy.
11.9 COVENANTS OF BUYER.
(a) Except for the agreements contemplated herein, Buyer will not enter into any new agreement, written or oral, that will be binding on the Property prior to Closing.
(b) Prior to Closing, Buyer will not take, approve or consent to any action or omission that would change the zoning, uses, permits or licenses of or for the Property, except with the prior written consent of Seller, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Except as otherwise contemplated herein, prior to the Closing, Buyer shall not place on, nor consent to the placement on, any of the Property, any lien, encumbrance, or other matter which would constitute an encumbrance or title exception to the Property and/or under Schedule B of the Preliminary Report.
(d) Buyer acknowledges that it shall be solely responsible for securing all governmental approvals required for its proposed use of the Property, including without limitation Special Management Area use permit and building permits.
(e) Buyer agrees not to take any action or knowingly fail to take any action after the date of the execution of this Agreement and prior to Closing which will cause or prevent the Property from being in compliance with the provisions of this Agreement.
12. ENTRY ON PROPERTY.
12.1 LICENSE TO ENTER. Beginning on the Effective Date and at all times prior to Closing, Seller shall, upon reasonable notice and at reasonable times, make the Property available to Buyer and its agents, employees, consultants, and representatives for such inspections and tests as Buyer Deems appropriate, at Buyer’s sole cost and expense. Buyer shall provide notice to Seller (which notice may be telephonic to Race Randle at (808) 349-9364 or by email to Race Randle at race@mauiland.com and Jon Grobe at jon@mauiland.com) at least one (1) Business Day prior to any entry onto the Property. Seller may have a representative present during any tests or investigations. After any entry, testing or investigations, Buyer shall promptly restore the Property to the Property’s condition before Buyer entered on the Property. Buyer shall not knowingly allow any dangerous or hazardous condition to be created on or arise from Buyer’s entry, testing or investigations on the Property. Buyer shall comply with all applicable laws and governmental regulations applicable to the Property. This limited license shall be deemed revoked upon termination of this Agreement.
12.2 INDEMNIFICATION ON ENTRY. Buyer shall indemnify, defend and hold the Seller and Seller’s officers, directors, shareholders, employees, agents, subsidiary and parent corporations, affiliated entities, and predecessors, successors and assigns, and the Property harmless from and against all claims, loss, liability, damage, expense and cost (including, without limitation, attorneys’ fees and costs) arising from or directly relating to the entry of Buyer and its representatives, agents and contractors on the Property. Buyer’s obligations under this paragraph shall survive the Close of Escrow and the termination of this Agreement and shall not be limited by any insurance required under paragraph 12.3.
12.3 INSURANCE ON ENTRY. Buyer shall maintain or cause its contractors or consultants to maintain adequate comprehensive liability insurance policies to cover Buyer’s activities on the Property. Buyer shall keep the Property free and clear of all mechanics’ liens and materialmen’s liens arising out of any of Buyer’s activities. Before entering on the Property, Buyer shall deliver to Seller a certificate of insurance evidencing compliance with the terms of this paragraph. The liability insurance policy shall have a combined single limit per occurrence liability limit of at least $2,000,000 for premises liability, bodily injury and property damage, shall be primary and noncontributing with any insurance which may be carried by Seller, and shall name the Seller as an additional insured. The insurance policy shall be maintained and kept in effect by Buyer (or Buyer’s agent), at Buyer’s (or Buyer’s agent’s) sole expense, at all times during the term of this Agreement.
13. CONDEMNATION & CASUALTY. If, before the Closing, all or any material portion of the Property is taken by eminent domain or is the subject of a pending taking which has not been consummated (collectively, a “Taking”) or the Improvements are destroyed or materially damaged by fire, earthquake, natural disaster or other casualty (“Casualty”), Seller promptly shall notify Buyer of the event after actual knowledge of the Taking or Casualty and, in that event, Buyer shall have the option to continue under this Agreement as of the date of the Taking or Casualty by delivery of written notice of Buyer’s election to Seller within fifteen (15) Business Days after receipt of Seller’s notice. If Seller has not received Buyer’s notice within the 15-Business Day period, then Buyer shall be deemed to have elected to terminate the transactions contemplated by this Agreement, and the condemnation proceeds shall become the property of Seller and Buyer shall have no rights to any portion of the condemnation proceeds. If Buyer elects to consummate the transactions contemplated by this Agreement, the condemnation proceeds shall become the property of Buyer. In the event Buyer elects to terminate this Agreement pursuant to this paragraph 13, Buyer and Seller shall share equally all Escrow cancellation charges, Escrow Holder shall promptly return the Deposit to Buyer and upon such reimbursement this Agreement shall terminate.
14. GENERAL PROVISIONS.
14.1 ASSIGNMENT.
(a) This Agreement shall be binding upon and shall inure to the benefit of Buyer and Seller and their respective successors and permitted assigns.
(b) Buyer may not assign its rights under this Agreement without the consent of Seller, in its sole but reasonable discretion. Any direct or indirect change in ownership or control of Buyer prior to Closing shall constitute an assignment for purposes of this restriction.
(c) Seller shall have the right to assign this Agreement or any interest or right under this Agreement or under the Escrow, without the prior written consent of Buyer, so long as any assignment is fully subject to the terms of this Agreement.
14.2 ATTORNEYS’ FEES AND/OR COSTS. In any action or proceeding between the parties to enforce or interpret any of the terms or provisions of this Agreement, the prevailing party in the action or proceeding shall be entitled to its reasonable actual out-of-pocket costs and expenses, including without limitation, costs and reasonable attorneys’ fees.
14.3 NOTICES AND APPROVALS. Any notice, approval, disapproval, demand or other communication required or permitted to be given by any provision of this Agreement (“Notice”) which either party desires to give to the other party or to Escrow Holder shall be in writing and shall be deemed to be sufficiently given or served if: (a) delivered personally to the party to whom the notice is to be delivered; or (b) sent by mail, express mail or commercial courier addressed to the party at the party’s address as it appears in this Agreement, or at any other address as that party may from time to time specify by written notice; or, (c) given by transmittal over electronic transmitting device, such as Telex or telecopy machine, if the party to whom the notice is sent has such a device in its office, provided a complete copy of any notice of transmitted shall also be mailed in the same manner as required for a mailed notice. Any notice shall be deemed to be given as of the date received (and in the event of facsimile confirmed with confirmation by sender’s facsimile machine).
14.4 CONTROLLING LAW. This Agreement shall be construed under the laws of the state where the Property is located which are in effect at the time of the signing of this Agreement.
14.5 TITLES AND CAPTION. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. References to paragraph numbers are to paragraphs in this Agreement, unless expressly stated otherwise.
14.6 INTERPRETATION. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” If a dispute arises over the interpretation or construction of any provision, term, or word contained in this Agreement, this document shall be interpreted and construed neutrally, and not against either Buyer or Seller.
14.7 NO WAIVER. A waiver by either party of a breach of any of the covenants, conditions or obligations under this Agreement to be performed by the other shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement.
14.8 MODIFICATIONS. Any alteration, change, or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party.
14.9 SEVERABILITY. If any term or provision of this Agreement, or its application to any party or set of circumstances, shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and each shall be valid and enforceable to the fullest extent permitted by law.
14.10 INTEGRATION OF PRIOR AGREEMENTS AND UNDERSTANDINGS. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by the Agreement. All prior or contemporaneous agreement, understandings, representations, warranties, and statements, whether oral or written, are superseded by this Agreement.
14.11 NOT AN OFFER. Seller’s delivery of unsigned copies of this Agreement is solely for the purposes of review by Buyer, and neither the delivery nor any prior communications between Buyer and Seller, whether oral or written, shall in any way be construed as an offer by Seller, nor in any way imply that Seller is under any obligation to enter the transaction which is the subject of this Agreement. The signing of this Agreement by Buyer constitutes an offer which shall not be deemed accepted by Seller unless and until Seller has signed this Agreement and delivered a duplicate original to Buyer. The signing of this Agreement by Seller constitutes an offer which shall not be deemed accepted by Buyer unless and until Buyer has signed this Agreement and delivered a duplicate original to Seller.
14.12 TIME OF ESSENCE. Time is expressly made of the essence as to the performance of each and every obligation and condition of this Agreement.
14.13 POSSESSION OF PROPERTY. Buyer shall be entitled to exclusive possession of the Property upon execution and delivery of the deed.
14.14 COUNTERPARTS. This Agreement may be signed in multiple counterparts which shall, when signed by all parties constitute a binding agreement.
14.15 EXHIBITS INCORPORATED BY REFERENCE. All exhibits attached to this Agreement are incorporated in this Agreement by this reference.
14.16 COMPUTATION OF TIME. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the Effective Date), and including the last day, unless the last day is not a Business Day, and then that day is also excluded. All references to time shall be deemed to refer to Hawaii time.
14.17 SURVIVAL. Except as otherwise provided herein, all of the terms and provisions hereof shall not survive the Closing and the delivery of the Limited Warranty Deed.
14.18 JOINT AND SEVERAL LIABILITY. If Buyer is composed of more than one individual or entity, all obligations and liabilities of Buyer under this Agreement shall be joint and several as to each of those individuals or entities who compose Buyer.
14.19 BUYER’S WORK PRODUCT CONCERNING THE PROPERTY. Intentionally omitted.
14.20 NO OBLIGATIONS TO THIRD PARTIES. The execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties to this Agreement to, any person or entity other than Seller and Buyer.
15. HAZARDOUS MATERIALS DISCLOSURE AND INDEMNIFICATION.
15.1 HAZARDOUS MATERIAL DISCLOSURE. Seller and Buyer understand, acknowledge and agree that various materials may be utilized in the construction of any improvements or may already be existing in or on, around, or under the Property; and which materials may have contained materials that may have been or may in the future be determined to be toxic, hazardous or undesirable and may need to be specially treated, specially handled and/or removed from the property. (For example, some electrical transformers and other electrical components contain PCBs, and asbestos has been used in a wide variety of building components, such as fire-proofing, air duct insulation, acoustical tiling, spray-on acoustical materials, linoleum, floor tiling and plaster.) Due to current or prior uses, the property, of which the Property is a part, or the improvements thereto, may contain materials such as metal, minerals, chemicals, pesticides, arsenic, hydrocarbons biological or radioactive materials and other substances which are considered, or may in the future may be determined to be toxic waste, hazardous materials or undesirable substances. Such substances may be in above or below ground containers on the property, of which the Property are a part, or may be present on, or in soils, water, building components or other portions of the property, in areas that may or not be acceptable or noticeable.
Current and/or future federal, state and local regulations may require the clean-up of such toxic, hazardous or undesirable materials at the expense of those persons who in past, present or future have had any interest in the Property, including, but not limited to, current, past and future owners and users of any such Property. Buyer agrees to be solely responsible for any such clean-up and to indemnify Seller and Seller’s affiliated companies against the same. Buyer hereby releases Seller and Seller’s affiliated companies from all such liability, except to the extent of a breach of warranty of Seller under this Agreement.
SELLER AND BUYER HAVE BOTH BEEN ADVISED TO SEEK AND CONSULT WITH INDEPENDENT LEGAL COUNSEL AND HAVE CONSULTED WITH SUCH COUNSEL, TO THE EXTENT THAT EACH HAS DEEMED NECESSARY, PRIOR TO THE EXECUTION OF THIS AGREEMENT, TO DETERMINE THEIR POTENTIAL OBLIGATIONS AND LIABILITY WITH RESPECT TO SUCH TOXIC, HAZARDOUS AND UNDESIRABLE MATERIAL.
Seller represents and agrees that to its actual knowledge, without inquiry, the Property is not in violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene, Hazardous Materials (as defined herein) or to environmental conditions on, or about the Property, including, but not limited to soil and ground water conditions. Seller represents and warrants that during the time Seller has leased, owned or controlled the Property, neither Seller, nor, to the Seller’s actual knowledge, any third party, has used, generated, manufactured, produced, transported or stored or disposed of, on, under or above the Property, transported to or from the property any inflammable explosives, asbestos, radioactive materials, hazardous waste, toxic substances or related hazardous materials, whether injurious by themselves or in combination with other materials (collectively “Hazardous Materials”) in violation of applicable law, except that Seller has informed Buyer that Seller or Seller’s affiliated companies have used pesticides and other chemicals on the Property in connection with agricultural operations and that some of the pesticides or other chemicals, including but not limited to arsenic, may remain on the Property. For the purpose of this Agreement, Hazardous Materials include but are not limited to substances defined as “hazardous or toxic substances”, “hazardous or toxic materials”, or “hazardous or toxic wastes”, or other form of pollutant or contaminants including petroleum, asbestos, polychlorinated biphenyls and radioactive materials in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et. seq.; Hazardous Materials Transportation Act, 49 U.S.C. §5101, et. seq.; Resource Conservation and Recovery Act, 42 U.S.C. §6901, et. seq.; 42 U.S.C. Section 7401 et. seq., 33 U.S.C. Section 1251 et. seq.; and in the regulations adopted and publications promulgated pursuant to said laws and in any relevant or corresponding or supplemental laws, of the State of Hawaii or any municipality thereof, together with any successor or amended laws or regulations as may be hereinafter promulgated, or new regulations or laws similarly purporting to regulate substances used, generated, disposed of or situated in real property which are hereinafter enacted. Buyer shall indemnify, defend and hold Seller and Seller’s officers, directors, shareholders, employees, agents, subsidiary and partner corporation, affiliated entities, predecessors, successors, and assigns, harmless from and against all claims, losses, liabilities, damage, fines, causes of action, penalties, costs and expenses (including without limitation, reasonable attorneys’ fees and costs) arising from or relating to any use of, or conduct on the Property after the Closing Date of any Hazardous Materials by Buyer.
16. TAX DEFERRED EXCHANGE. Seller reserves the right to structure the conveyance of the Property to Buyer as a tax-deferred exchange under Section 1031 of the Code (an “Exchange”). Seller may assign this Agreement to a qualified intermediary in order to facilitate the Exchange transaction. Seller and Buyer agree to, at no cost to the other, cooperate in effecting such transaction, including, without limitation, consenting to the assignment of this Agreement to a qualified intermediary, provided that any such Exchange transaction, and the related documentation, shall: (a) not require Seller or Buyer to execute any contract (other than as set forth herein), make any commitment, or incur any obligations, contingent or otherwise, to third parties which would expand Seller’s or Buyer’s obligations beyond this Agreement, (b) not delay the Closing or the transaction contemplated by this Agreement, or (c) not include Seller’s or Buyer’s acquiring title to any other property. Seller agrees to indemnify and hold harmless Buyer from and against any cost, expense, liability, tax, charge, penalty or assessment arising out of or resulting from such party’s activities or participation pursuant to this paragraph. Buyer shall not be obligated to delay the Closing or to execute any document which would impose any liability on the other party Seller or to take title to any property. The obligations of Buyer under this paragraph shall survive the Closing and shall not be merged therein.
17. If requested by Buyer, Seller agrees with Buyer to cooperate with Buyer to effect a tax-deferred exchange under the provisions of Section 1031 of the Internal Revenue Code, at no cost, expense or liability to the other party. Buyer agrees to indemnify and hold harmless Seller from and against any cost, expense, liability, tax, charge, penalty or assessment arising out of or resulting from such party’s activities or participation pursuant to this Section. Notwithstanding anything to the contrary contained in this Agreement, Buyer shall have the right to assign this Agreement to a qualified intermediary for purposes of completing such a tax deferred exchange. Seller shall not be obligated to delay the Closing or to execute any document which would impose any liability on the other party or to take title to any property.
18. PUBLIC DISCLOSURE. Prior to Closing, any release to the public of information with respect to the sale contemplated herein or any matters set forth in this Agreement will be made only in the form approved by Buyer and Seller and their respective counsel, except that Seller may make any disclosure Seller reasonably believes is necessary to comply with applicable law or prudent as a publicly traded company.
19. WAIVER OF TRIAL BY JURY. SELLER AND BUYER, TO THE EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, OR IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, SELLER AND BUYER HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
20. LIMITED LIABILITY. No constituent officer, director or agent of Seller, nor any manager, advisor, trustee, member, partner, employee, beneficiary, shareholder, participant, representative or agent of any partnership, limited liability company, corporation, trust or other entity that has or acquires a direct or indirect interest in Seller, shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or pursuant to the provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Buyer, its successors and assigns and, without limitation, all other persons shall look solely to Seller’s interest in the Property and proceeds thereof for payment of any claim or for any performance, and Buyer, on behalf of itself and its successors and assigns, hereby waives any and all such personal liability, except in the event of fraud or material misrepresentation by any such person or party.
No constituent officer, director or agent of Buyer, nor any manager, advisor, trustee, member, partner, employee, beneficiary, shareholder, participant, representative or agent of any partnership, limited liability company, corporation, trust or other entity that has or acquires a direct or indirect interest in Buyer, shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or pursuant to the provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Seller, on behalf of itself and its successors and assigns, hereby waives any and all such personal liability, except in the event of fraud or material misrepresentation by any such person or party.
21. EXECUTION. This Agreement may be executed in counterparts and signatures delivered by electronic means or fax transmission shall be valid and binding for all purposes.
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IN WITNESS WHEREOF Seller and Buyer have executed this Agreement as of the Effective Date.
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“BUYER” |
“SELLER” |
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HARVEST AT KUMULANI CHAPEL |
MAUI LAND & PINEAPPLE COMPANY, INC. |
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By: /s/ Josh Morris |
By: /s/ Race Randle |
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Name: Josh Morris |
Name: Race Randle |
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Its: Executive Director |
Title: CEO |
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Exhibit 10.15
PURCHASE AGREEMENT
Between
MAUI LAND & PINEAPPLE COMPANY, INC.,
and
RACE RANDLE
Property: Approximately 30 acres of land within Lot 5 of the Maui Preparatory Academy Subdivision located at Honokeana, Maui
Dated: January 28, 2026
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TABLE OF CONTENTS
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Page |
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1. |
PURCHASE OF PROPERTY |
1 |
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2. |
BASIC TERMS |
1 |
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3. |
CONDITIONS PRECEDENT TO BUYER’S PERFORMANCE |
2 |
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4. |
OPERATION OF PROPERTY AFTER DUE DILIGENCE PERIOD AND PRIOR TO CLOSING |
5 |
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5. |
CONDITIONS PRECEDENT TO SELLER’S PERFORMANCE |
5 |
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6. |
CLOSING |
5 |
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7. |
TERMINATION OF THIS AGREEMENT |
6 |
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8. |
GENERAL ESCROW PROVISIONS |
7 |
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9. |
BROKERAGE COMMISSIONS |
8 |
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10. |
CONDITION OF PROPERTY/REPRESENTATION AND WARRANTIES |
8 |
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11. |
ENTRY ON PROPERTY |
10 |
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12. |
CONDEMNATION |
11 |
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13. |
GENERAL PROVISIONS |
11 |
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14. |
HAZARDOUS MATERIALS DISCLOSURE AND INDEMNIFICATION |
12 |
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15. |
TAX DEFERRED EXCHANGE |
13 |
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17. |
PUBLIC DISCLOSURE |
13 |
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
This Purchase Agreement and Escrow Instructions (“Agreement”) dated January 28, 2026 (the “Effective Date”) is between MAUI LAND & PINEAPPLE COMPANY, INC., a Delaware corporation, as “Seller”, and RACE RANDLE, as “Buyer”.
22. PURCHASE OF PROPERTY. Pursuant to the terms hereof, Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller, the Property (as described in paragraph 2.1), in consideration for the payment of the Purchase Price (as described in paragraph 2.4), together with the respective promises of the parties set forth in this Agreement.
23. BASIC TERMS.
23.1 PROPERTY. “Property” shall mean a spatial condominium unit to be created by Seller consisting of approximately 30 acres of land within Lot 5 of the Maui Preparatory Academy Subdivision (DSA File No. 4.895, Tax Map Key No. (2) 4-3-1-89) (“Lot 5”). The proposed location and boundaries of the Property are shown on the conceptual plan attached as Exhibit A attached hereto.
23.2 BUYER. “Buyer” shall mean RACE RANDLE.
23.3 SELLER. “Seller” shall mean MAUI LAND & PINEAPPLE COMPANY, INC., a Delaware corporation.
23.4 PURCHASE PRICE. “Purchase Price” shall mean the sum of ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($1,200,000.00). Seller’s obligations under this Agreement shall be contingent on receipt and approval by Seller’s Board of Directors of an apprisal of the Property from an independent licensed Hawaii third-party appraiser that confirms the Purchase Price is equal to or exceeds the current fair market value for the Property as of the Effective Date. Subject to Board approval, the July 2025 appraisal may be used to satisfy this requirement. The cost of the appraisal shall be shared equally by the parties.
23.5 TERMS OF PURCHASE.
(a) The Deposit. Buyer shall make a deposit of $50,000.00 (“Initial Deposit”) to Escrow Holder within two (2) business days after the Effective Date. Within two (2) business days after the expiration of the Due Diligence Period, Buyer shall deliver to Escrow Holder an additional deposit of $50,000.00 (“Second Deposit”) (the Initial Deposit and the Second Deposit are collectively called the “Deposit”). Upon Buyer’s request and at Buyer’s expense, the Escrow Holder shall invest the Deposit in an insured deposit account, money market fund or other form of investment approved by Buyer. Interest accrued on the Deposit shall be applied in the same manner as the Deposit. Upon the close of Escrow for this transaction (“Closing”), the Deposit and all interest accrued thereon shall be applied towards the Purchase Price. Except as otherwise provided Section 3, if Buyer elects to proceed with the purchase of the Property at the expiration of the Due Diligence Period, the entire Deposit shall be non-refundable, whether or not this transaction Closes. If Buyer elects not to proceed with the purchase of the Property at the expiration of the Due Diligence Period, or if this Agreement terminates due to exercise of a termination right set forth herein, or terminates as a result of the failure of a condition precedent to Closing as set forth herein (unless such failure occurs as a result of a default of Buyer), the Deposit, including all interest accrued thereon, shall be refunded to Buyer.
(b) Cash at Closing. The Purchase Price (less the Deposit and any interest accrued thereon,), plus Buyer’s share of closing costs, prorations, and fees and charges payable pursuant to this Agreement, shall be delivered to Escrow Holder as provided in paragraph 6.3. At Closing, and subject to approval of Seller’s legal counsel and Compensation Committee, Buyer may elect to relinquish and surrender to Seller any award of stock in Seller that Buyer is fully vested in as of Closing, in which case the cash due at Closing shall be reduced by the value of the surrendered stock awards at that time, net of tax payable in connection with the surrender, provided that the cash due from Buyer shall not in any case be reduced to an amount less than $0.
(c) Post-Closing Value True-Up. Buyer and Seller shall have the Property appraised as of the 5th anniversary of the Closing Date by an independant licensed Hawaii appraiser mutually acceptable to both parties. The cost of the appraisal shall be shared equally. Such appraisal shall value the land only at its highest-and-best use, and shall specifically exclude Buyer’s Improvements. If the value determined by such appraisal exceeds the Purchase Price, then Buyer shall pay to Seller the difference between the Purchase Price and such appraised value, provided that regardless of the appraised value the additional payment shall not exceed $600,000. Such payment shall be considered to be part of the Purchase Price, shall be payable to Seller within 90 days of completion of the appraisal. If at the 5th anniversary of the Closing Date Buyer remains Chief Executive Officer of Seller, then at Buyer’s election Buyer may pay the amount due in installments of $100,000, without interest, commencing on that date and continuing on each anniversary of that date until the amount is paid in full. Until the amount due under this section is determined, Buyer shall maintain ownership of stock in Seller or vested stock awards in Seller, with a market value of $600,000, which may be applied to pay the amount due in case of Buyer’s failure to make such payment. No payment shall be required under this Section is Seller exercises the buy-back right on the 5th anniversary of Closing that is set forth in Section 3.4 below. This Section shall survive Closing.
23.6 EFFECTIVE DATE. The effective date (“Effective Date”) of this Agreement shall be the date Seller and Buyer execute this Agreement.
23.7 DUE DILIGENCE PERIOD. The “Due Diligence Period” shall mean the period commencing on the Effective Date and ending at 5:00 p.m. Hawaii Standard Time on the date that is ninety (90) days after the Effective Date, for Buyer to determine whether Buyer may feasibly acquire and develop the Property as provided in paragraph 3.2.
23.8 ESCROW. The “Escrow” shall mean an escrow account established at the Escrow Holder which shall be opened as provided in paragraph 8.2.
23.9 ESCROW HOLDER. The “Escrow Holder” shall mean Title Guaranty Escrow Services, Inc., attention Jeremy Trueblood.
23.10 TITLE COMPANY. The “Title Company” shall mean Title Guaranty of Hawaii, Inc.
23.11 TITLE POLICY. The “Title Policy” shall mean a Hawaii Standard Form Owner’s Policy of Title Insurance with those endorsements accepted by the Title Company prior to the end of the Due Diligence Period with no exceptions or exclusions to coverage except for the reservations, covenants and exceptions as set forth in this Agreement and except for the Condominium Documents (defined below) and those set forth in schedule B (excluding, however, those Disapproved Exceptions Seller has agreed to cure pursuant to paragraph 3.1(b) below) on the Title Commitment (as hereinafter defined) and matters shown on the Survey, unless otherwise agreed to by Buyer (“Permitted Exceptions”).
23.12 BROKERS. Buyer warrants and represents to Seller that Buyer is not and has not been represented by any agent or broker in connection with the transaction contemplated by this Agreement and that no commissions, finders fees or other like compensation to third parties will be payable by Seller in connection with this transaction as a result of Buyer’s actions.
23.13 SHARED APPRECIATION. If Buyer sells the Property on or before the 10th anniversary of the Closing Date, Buyer shall at the close of the sale pay to Seller out of escrow an amount determined as subtracting Buyer’s Costs from the Net Sales Price, and then multiplying the result by the Applicable Shared Appreciation Percentage. As used in this Section, “Net Sales Price” means the gross purchase price for the resale of the Property less reasonable and customary closing costs and commissions paid to third-party brokers (but excluding payoffs of mortgages or other monetary liens), all as shown on Buyer’s final escrow settlement statement, and “Buyer’s Costs” mean the Purchase Price (including any post-Closing payment under Section 2.5(c)) plus all reasonably documented financial costs paid or incurred by Buyer to improve the Property and to design, permit and build Buyer’s Improvements (but excluding financing and mortgage interest costs) (the “Development Costs”). For purposes of this Section, the Applicable Shared Appreciation Percentage shall mean 100% for the period from the Closing Date to the 1st anniversary of the Closing Date, 90% for the period from the 1st to the 2nd anniversary, and then continuing to reduce by 10% at each anniversary until the Applicable Shared Appreciation Percentage reaches zero on the 10th anniversary of Closing. If the sale occurs before the post-Closing payment under Section 2.5(c) is due, then “Buyer’s Costs” shall also include the amount of $600,000, which escrow shall pay to Seller at the closing in lieu of payment under Section 2.5(c). Buyer shall on request provide Seller with such documentation as Seller may reasonably request in order to calculate the amount payable under this Section. This Section shall survive Closing.
23.14 10-YEAR OWNER OCCPANCY REQUIREMENT. As an essential inducement to Seller to enter in to this Agreement, Buyer agrees that Buyer shall reside at the Property as Buyer’s principal residence for, at a minimum, the period commencing on Buyer’s completion of Buyer’s Improvements (as defined below) and ending on the 10th anniversary of Closing. If Buyer does not comply with this requirement, Seller shall have the option to repurchase the Property from Buyer for the Purchase Price plus the Development Costs. Seller may exercise this option by written notice to Buyer, which shall set a date within 45 and 60 days of the notice on which Buyer shall reconvey the Property (the “Repurchase Closing”). Such reconveyance must be free and clear of any mortgages or other liens made or suffered by Buyer, and at the Repurchase Closing Buyer shall cause the Title Company to issue Seller an owner’s policy of title insurance insuring such title. Buyer shall deliver possession of the Property to Seller at the Repurchase Closing free and clear of any tenants or other occupants and any personal property, in good order and conditions. In addition to its repurchase option, Seller may also elect to require Buyer to pay to Seller any rents Buyer receives for any periods in which Buyer does not reside in the Property as a principal residence. This Section shall survive Closing.
24. CONDITIONS PRECEDENT TO BUYER’S PERFORMANCE. Subject to the notice and cure rights set forth in paragraph 7.2 below, Buyer’s obligation to purchase the Property is subject to the satisfaction or waiver of all conditions set forth in this paragraph 3 below (which are for Buyer’s benefit) within the time periods specified.
24.1 TITLE CONDITION.
(a) Prior to the Effective Date, Seller has delivered to Buyer a current preliminary report for the existing parcel of land that contains the Property (the “Preliminary Report”). Seller has no obligation to provide a Survey of the Property. No later than ten (10) days before the last day of the Due Diligence Period, Buyer may disapprove of any of the matters reflected in the Preliminary Report by delivering written notice to Seller and Escrow Holder (the “Notice of Defect”) specifying each matter shown in the Title Commitment or Survey which is disapproved by Buyer (each a “Disapproved Exception”) and stating the reasons for each disapproval. Seller’s failure to receive the Notice of Defect within the Due Diligence Period shall be conclusively deemed to constitute Buyer’s approval of the Preliminary Report and satisfaction of the title condition under this paragraph 3.1.
(b) Within five (5) days after receiving the Notice of Defect, Seller shall deliver to Buyer and Escrow Holder notice as to whether Seller elects, in its sole discretion, to cure or not cure each of the Disapproved Exception(s). Buyer’s failure to receive any notice from Seller within that 5‑day period shall be deemed to be notice to Buyer that Seller elected not to cure the Disapproved Exception(s). If Seller elects not to cure one or more Disapproved Exception(s), Buyer may terminate this Agreement prior to the expiration of the Due Diligence Period. If Buyer does not so terminate this Agreement, Buyer will be deemed to have waived its disapproval of such Disapproved Exception(s) Seller has elected not to cure and Buyer shall have agreed to acquire title to the Property subject to such Disapproved Exception(s).
(c) If Buyer properly terminates this Agreement as provided in this paragraph 3.1, the Deposit shall be returned to Buyer as provided in paragraph 7.3.
(d) A Disapproved Exception shall be considered to have been cured by Seller if the Title Company agrees to issue the Title Policy (including any applicable endorsement approved by Buyer in its reasonable discretion) to Buyer either without that Disapproved Exception being reflected as an exception to coverage under the Title Policy or noting such exception and providing an endorsement insuring over such noted exception. The cost of such endorsement shall be borne by Buyer.
(e) Notwithstanding the foregoing, Seller shall be obligated to discharge any mortgages or notes secured by deeds of trust, and other monetary liens affecting the Property (other than governmental liens such as taxes and assessments not yet due) which are not the result of Buyer’s conduct or actions.
(f) Notwithstanding the foregoing, Buyer agrees that the Limited Warranty Unit Deed from Seller to Buyer shall be subject to the Condominium Documents described below and any other reserved easements and rights set forth in this Agreement.
24.2 FEASIBILITY CONDITION & APPROVAL OF CONDOMINIUM DOCUMENTS.
(a) Within five (5) days after the Effective Date, Seller shall deliver to Buyer the documents in Seller’s possession that are relevant to Buyer’s proposed ownership, use or development of the Property.
(b) Buyer shall have until 5:00 p.m. Hawaiian time on the last day of the Due Diligence Period to confirm, in Buyer’s sole and absolute discretion and Buyer’s sole expense, whether Buyer may feasibly acquire and use the Property for Buyer’s intended purpose. During the Due Diligence Period, Buyer shall have reviewed (or shall have had the opportunity to review) among other things: (i) the geological, soils and seismic conditions of the Property; (ii) all conditions and requirements imposed by governmental bodies having jurisdiction over the Property; and (iii) the viability of the Property for Buyer’s intended development or use. During the Due Diligence Period Seller shall provide Buyer with the form of a Declaration of Restrictive Covenants pursuant to which Seller shall reserve rights of architectural review and approval of future improvements to the Property and approval of crops to be grown on the Property (the “CC&Rs”)
(c) If before the end of the Due Diligence Period, Buyer, in its sole and absolute discretion, determines to purchase the Property, Buyer shall notify Seller and Escrow Holder in writing (the “Acceptance Notice”). If Seller and Escrow Holder have not received an Acceptance Notice from Buyer before the end of the Due Diligence Period, Escrow shall terminate and the Deposit shall be returned to Buyer as provided in paragraph 7.3, irrespective of any instruction or other communication, oral or written, from Seller. If Seller and Escrow receive an Acceptance Notice before the end of the Due Diligence Period, this feasibility condition shall be conclusively deemed satisfied in all respects including Buyer’s approval of each of the items set out in paragraph 3.2(b), Buyer shall be obligated to make the Second Deposit, and the Deposit shall become non-refundable except as provided in paragraph 5.4, 6.1(a), or 12 hereunder, in the event of a Default by Seller, or any failure of a condition precedent to Buyer’s obligations hereunder.
24.3 CREATION AND REGISTRATION OF THE CONDOMINIUM. Promptly after the Due Diligence Period, Buyer shall at Buyer’s expense cause a licensed surveyor to survey the proposed boundaries of the Property, in coordination with Seller. The surveyed boundaries may deviate from the conceptual plan attached as Exhibit A to the extent reasonably necessary to reflect conditions on the ground discovered following Buyer’s initial clearing activities, provided that such deviations may not materially increase the total acreage of the Property or materially impair the remainder of Lot 5. Buyer’s survey shall be subject to Seller’s approval. Upon approval of Buyer’s survey Seller shall at its expense cause (a) a licensed surveyor to prepare a condominium map for the creation of the Property as a separate condominium unit within Lot 5, and (b) prepare the Declaration of Condominium Property Regime and Condominium Association Bylaws for the proposed condominium (collectively, the “Condominium Documents”) that Seller will record prior to or at Closing to create a condominium property regime pursuant to the Hawaii Condominium Property Act, Chapter 514B Hawaii Revised Statutes (the “Condominium”) in which the Property is a separate spatial condominium unit. The Condominium Documents shall include, among other things:
24.3.1 reserved rights and powers that Seller deems necessary to ensure its ability to unilaterally use, entitle, develop and or sell the remainder of Lot 5;
24.3.2 the right (but not the obligation) of Seller to subdivide the Property from the remainder of Lot 5 as a separate lot (the “Subdivision”). Seller shall bear the costs of the Subdivision, provided that Buyer shall bear the costs of any required improvements or other actions that primarily benefit the Property. In case Seller initiates a Subdivision, Buyer shall cooperate reasonably in the processing of the Subdivision and shall, upon final approval of the subdivision, cooperate in the termination of the Condominium and such conveyances as are necessary to vest Buyer and Seller with fee title to their resulting Lots, free and clear of any mortgages or other monetary liens incurred by the other. This means, among other things, that if Buyer has a mortgage loan Buyer must at its expense secure it’s lender’s agreement to modify the mortgage to reflect the conversion of the Property from a condominium unit to a lot. In any such subdivision, the Property shall be allocated its existing water meter(s), if any, and all available future subdivision potential shall be reserved to the remainder of Lot 5.
This transaction shall be subject to the parties’ mutual approval of the Condominium Documents no later than 30 days after Seller’s delivery of them. If the parties are unable to agree either may terminate this Agreement without liability, in which case the Deposit shall be refunded to Buyer. Upon mutual approval of the Condominium Document Seller shall promptly proceed to record the Condominium Documents, and register the Condominium with the Real Estate Commission of the State of Hawaii, and secure an effective date for a Developer’s Public Report for the Condominium Project (“DPR”). Upon issuance of the effective date for the DPR, Buyer shall execute such documentation as Seller reasonably requires to confirm Buyer’s affirmation of this Agreement and Buyer’s waiver of any cancellation rights.
24.4 BUYER’S DESIGN, PERMITTING AND FINANCING; SELLER BUY-BACK RIGHT. Promptly following Buyer’s issuance of its Acceptance Notice, Buyer shall commence and diligently pursue the design, permitting and mortgage financing of Buyer’s planned improvements at the Property (“Buyer’s Improvements”). Buyer’s obligation to close its purchase is contingent on (a) satisfaction of all conditions to the County’s of Maui’s issuance of the permits and approvals required for vertical construction of Buyer’s Improvements other than payment of permit fees, such that the County will issue such permits and approvals upon payment of those fees (“Permit Approval”), and (b) Buyer’s receipt of final loan approval form a lender of Buyer’s choice for the financing of construction of Buyer’s Improvements no later than 120 days after Permit Approval. The “Closing Date” shall be a mutually agreeable date no later than thirty (30) days after the date on which both of these contingencies have been satisfied. Buyer shall keep Seller apprised of Buyer’s progress in satisfying these conditions. If these conditions have not been satisfied within 36 months after Buyer’s Acceptance Notice, Buyer or Seller may terminate this Agreement without liability, and the Deposit shall be returned to Buyer. If this transaction does not close for this or any other reason, upon Seller’s request Buyer shall cooperate to transfer to Seller all of Buyer’s rights in and to its designs, plans, contracts, permits and approvals for Buyer’s Improvements.
It shall be Buyer’s responsibility to obtain and pay for any lines, meters and/or the utility providers’ agreement to provide utility service to the Property and Buyer’s Improvements. It is understood that Seller shall not be obligated to pay for any costs associated with any meters, service connections, additional lines or the placing of electrical or telephone lines underground. It is Buyer’s responsibility to ascertain the availability of, and Buyer assumes all risk with respect to the availability or non-availability of, water and utility service for the Property. It is Buyer’s responsibility to pay all other costs of development of Buyer’s Improvements that are not expressly the responsibility of the Seller under the Agreement, including but not limited to offsite utility costs and road improvement costs and requirements.
If Buyer does not complete vertical construction of Buyer’s Improvements in accordance with the plans approved by the County of Maui prior to Closing by the 5th anniversary of Closing, Seller may elect to repurchase the Property from Buyer in its then-exiting condition for the Purchase Price. In order to exercise this right Seller must give Buyer written notice within 90 days after the 5th anniversary of Closing. In that case, Buyer and Seller shall close the repurchase of the Property within forty-five days after such notice through Escrow Holder. Seller shall pay Buyer the purchase price in cash at such closing, and Buyer shall convey the Property to Seller by limited warranty unit deed conveying fee simple title subject only to the Permitted Exceptions, and free and clear of any mortgages or other monetary liens made or suffered by Buyer. At such closing Buyer shall assign to Seller all of Buyer’s rights in and to its designs, plans, contracts, permits and approvals for Buyer’s Improvements. Closing costs and prorations for such closing shall be as set forth in this Agreement. This Paragraph shall survive Closing.
24.5 ISSUANCE OF TITLE POLICY. The Title Company shall be irrevocably and unconditionally prepared to issue the Title Policy to Buyer as of Closing insuring fee simple title to the Property in the amount of the Purchase Price, subject only to the Permitted Exceptions.
24.6 DELIVERY OF DOCUMENTS. Seller shall have signed, acknowledged and timely delivered all monies, documents and instruments to Escrow Holder as required by paragraph 6.2 below.
24.7 PERFORMANCE OF COVENANTS. Seller shall have complied in all material respects with the terms and provisions of this Agreement, including without limitation the covenants set forth in paragraph 10.8.
24.8 NO BREACH OF REPRESENTATIONS OR WARRANTIES. There shall be no material breach of Seller’s representations and warranties set forth in paragraph 10.5.
25. OPERATION OF PROPERTY AFTER DUE DILIGENCE PERIOD AND PRIOR TO CLOSING. Seller does not currently maintain the Property and shall have no ongoing obligation to maintain or improve the Property. Seller shall not encumber the Property after the Due Diligence Period except as provided herein or in the Condominium Documents without Buyer’s written consent, which consent may be withheld in Buyer’s reasonable discretion.
26. CONDITIONS PRECEDENT TO SELLER’S PERFORMANCE. Subject to the notice and cure provisions set forth in paragraph 7.2 below, Seller’s obligation to sell the Property is subject to the satisfaction (or waiver) of all conditions set forth below (which are for Seller’s benefit) within the time periods specified.
26.1 PERFORMANCE OF COVENANTS. Buyer shall have complied in all material respects with the terms and provisions of this Agreement.
26.2 DELIVERY OF DOCUMENTS. Buyer shall have signed, acknowledged and delivered all monies, documents, and instruments to Escrow Holder as required by this Agreement.
26.3 NO BREACH OF REPRESENTATIONS OR WARRANTIES. There shall be no material breach of Buyer’s representations and warranties set forth in paragraph 10.4.
27. CLOSING.
27.1 THE CLOSING. The Closing and Close of Escrow shall occur on the Closing Date determined in accordance with Section 3.4. The term “Close of Escrow” and “Closing Date” are used in this Agreement to mean the date and time the Limited Warranty Unit Deed is recorded by the Escrow Holder in the Bureau of Conveyances of the State of Hawaii.
27.2 SELLER’S CLOSING OBLIGATIONS. On or before 5:00 p.m. on the second business day immediately before the anticipated Close of Escrow, Seller shall deliver to Escrow Holder:
(a) The CC&Rs and the Condominium Documents, signed and acknowledged by Seller, unless previously recorded.
(b) A Limited Warranty Unit Deed with Reservations, Power of Attorney, and Covenants in the form of attached Exhibit B (the "Limited Warranty Unit Deed"), signed and acknowledged by Seller, conveying the Property to Buyer subject only to the Permitted Exceptions.
(c) A recordable Memorandum of Post-Closing Agreements and Obligations in the form attached as Exhibit C (the “Memorandum”) that documents of-record the provisions of this Agreement in Sections 3.2(c) (Purchase Price True-Up), 2.13 (Shared Appreciation), 2.15 (10-Year Owner Occupancy Requirement), and 3.4 (Seller Buy-Back Right).
(d) A certificate of Seller in the form required of an entity transferor as set forth in Section 1.445-2T(b)(iii) of the Regulations under Section 1445 of the Internal Revenue Code of 1986 and a certificate of exemption from the withholding of tax on the disposition of Hawaii real property (Form N-289).
(e) A State of Hawaii conveyance tax certificate.
(f) Any additional funds and/or instruments (signed and acknowledged by Seller, if appropriate) as may be necessary to comply with this Agreement.
(g) Such customary title affidavit or other documents reasonably required by Escrow Holder in order to deliver the Title Policy in accordance with the terms hereof.
(h) Resolutions of Seller authorizing the sale of the Property pursuant to the terms of this Agreement and authorizing the person(s) executing instruments or agreements relating to such sale to execute, acknowledge and deliver such instruments and agreements on behalf of Seller, and such other resolutions, authorizations and/or evidence of authority as Escrow Holder or the Title Company may reasonably require in connection with this transaction.
(i) Any other documents, instruments, records, correspondence or agreements called for hereunder which have not previously been delivered, or which are reasonably required by Escrow Holder, the Title Company or otherwise to consummate the sale of the Property in accordance with this Agreement.
27.3 BUYER’S CLOSING OBLIGATIONS. On or before 5:00 p.m. on the second business day immediately before the anticipated Closing Date, Buyer shall deliver to Escrow Holder the following, duly executed when required:
(a) Cash equal to that amount provided for in paragraph 2.5(c). The cash must be by direct deposit or by wire transfer of funds actually made in Escrow Holder’s depository bank account by 1:00 p.m. on the second business day immediately before the anticipated Closing Date.
(b) Any additional funds and/or instruments (signed and acknowledged by Buyer, if appropriate) as may be necessary to comply with this Agreement.
(c) The Limited Warranty Unit Deed and the Memorandum, signed and acknowledged by Buyer.
(d) A State of Hawaii conveyance tax certificate.
27.4 TITLE POLICY.
(a) As of the Close of Escrow, the Title Company shall issue and deliver to Buyer, the Title Policy with liability in the amount of the Purchase Price, insuring title to the Property vested in Buyer, subject only to the Permitted Exceptions. The Title Policy described in this paragraph 6.4(a) shall be paid for as provided in Section 8.5.
(b) If Buyer desires any special endorsements to the coverage provided by the Title Policy (including, without limitation, extended ALTA coverage), Buyer shall obtain a commitment therefor prior to the expiration of the Due Diligence Period and shall pay for these endorsements and coverage, including the cost of any ALTA survey required as a condition of such endorsements and coverage. The issuance of the endorsements and/or coverage shall not delay the Closing or extend the Due Diligence Period or the Due Diligence Period.
(c) After the Close of Escrow and issuance of the Title Policy, except for breaches of warranties of title in the Limited Warranty Unit Deed, the issuance of the Title Policy shall be in lieu of any express or implied warranty of Seller concerning title to the Property, and Buyer agrees that the only remedy of Buyer for damages incurred by reason of any defect in title shall only be against the Title Company.
28. TERMINATION OF THIS AGREEMENT.
28.1 If Escrow fails to close as of 5:00 p.m. on the Closing Date, either party may terminate this Agreement and Escrow shall terminate and cancel without further action by Escrow Holder or any party and notwithstanding any provision contained in Escrow Holder’s general provisions. Termination of this Agreement and cancellation of Escrow, as provided in this paragraph, shall be without prejudice to whatever legal rights Buyer or Seller may have against each other arising from this Agreement.
28.2 If any condition or performance is not satisfied or waived within the time period and in the manner set forth in this Agreement (“Default”), then the party for whose benefit the condition or performance exists may terminate this Agreement after providing five (5) business days written notice and opportunity to cure to the other party and the failure of such party to satisfy or cure such Default (except that in the event the nature of such Default requires longer than five (5) business days to cure, then the cure period shall be extended, together with the Closing Date, if applicable, for such reasonable period of time to allow such party to diligently complete its cure of same). Notwithstanding the foregoing, in the event of a monetary Default, the cure period shall be limited to three (3) business days and in the event of a Default by failing to close on the Closing Date, there shall be no cure period.
28.3 If either party elects to terminate this Agreement pursuant to a right to do so hereunder, then each of the following shall occur, and upon completion thereof this Agreement shall terminate: Escrow shall be deemed automatically cancelled regardless of whether cancellation instructions are signed; neither party shall have any further obligation to the other under this Agreement (except under paragraphs 11.2 and 11.3 which shall survive termination of this Agreement); all rights granted to Buyer under this Agreement and in the Property shall terminate, except as provided to the contrary in paragraph 7.6 (concerning Buyer’s right to pursue all remedies at law or in equity, including specific performance); and, except as provided to the contrary in paragraph 7.5 (concerning Seller’s right to retain the Deposit as liquidated damages), Escrow Holder shall return all funds and documents then held in Escrow to the party depositing the same and Seller shall promptly return any funds and documents paid or delivered to Seller by Escrow Holder or by Buyer outside of Escrow.
28.4 If the Escrow fails to close because of either party’s default, the defaulting party shall be liable for all Escrow cancellation and Title Company charges. If Escrow fails to close for any other reason, Buyer and Seller shall each pay one half of any Escrow cancellation and Title Company charges.
28.5 SUBJECT TO PARAGRAPH 7.2, IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT OR OTHERWISE DEFAULTS HEREUNDER FOR ANY REASON OTHER THAN SELLER’S DEFAULT (AS EVIDENCED BY WRITTEN NOTICE FROM BUYER TO SELLER AND ESCROW HOLDER) AND/OR THE NONSATISFACTION OF THE CONDITIONS TO BUYER’S PERFORMANCE SET FORTH IN PARAGRAPH 3 ABOVE, SELLER SHALL BE RELEASED FROM ALL OF ITS OBLIGATION UNDER THIS AGREEMENT, ESCROW HOLDER SHALL IMMEDIATELY DELIVER THE DEPOSIT (THEN HELD BY ESCROW HOLDER) TO SELLER, AND SELLER SHALL BE ENTITLED TO RETAIN THE DEPOSIT PREVIOUSLY RELEASED TO SELLER AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE REMEDY. THE PARTIES EXPRESSLY AGREE THAT THE AMOUNT OF THE DEPOSITS RELEASED PURSUANT HERETO IS A REASONABLE ESTIMATE OF THE EXTENT TO WHICH SELLER WOULD BE DAMAGED BY BUYER’S FAILURE TO COMPLETE THIS PURCHASE AND, IN LIGHT OF THE DIFFICULTY THE PARTIES WOULD HAVE IN DETERMINING SELLER’S ACTUAL DAMAGES, SHALL BE SELLER’S EXCLUSIVE REMEDY FOR DAMAGES BY REASON OF BUYER’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY OR OTHERWISE DEFAULTS UNDER THIS AGREEMENT.
28.6 Subject to paragraph 7.2, if a Seller Default should occur, Buyer shall be entitled to all remedies in law or equity, including without limitation, to assert and seek judgment against Seller for specific performance of this Agreement or for damages.
29. GENERAL ESCROW PROVISIONS.
29.1 ESCROW INSTRUCTIONS. This Agreement when signed by Buyer and Seller shall also constitute Escrow Instruction to Escrow Holder.
29.2 OPENING OF ESCROW. Escrow Holder shall notify Buyer and Seller in writing of the date of receipt of this fully executed Agreement.
29.3 GENERAL PROVISIONS. Notwithstanding anything to the contrary in this agreement, the General Provisions of Escrow Holder, if any, which are either attached to this Agreement or later signed by the parties, are incorporated herein by reference to the extent they are not inconsistent with the provisions of this Agreement. If there is any inconsistency between the provisions of those General Provisions and any of the provisions of this Agreement, the provisions of this Agreement shall control. If any requirements relating to the duties or obligations of the Escrow Holder are unacceptable to the Escrow Holder, or if the Escrow Holder requires additional instructions, the parties agree to make any deletions, substitutions and additions as counsel for Buyer and Seller shall mutually approve and which do not materially alter the terms of this Agreement. Any supplemental instructions shall be signed only as an accommodation to Escrow Holder and shall not be deemed to modify or amend the rights of Buyer and Seller, as between Buyer and Seller, unless these supplemental instructions expressly so provide.
29.4 PRORATIONS. All real property taxes and other assessments, and maintenance charges for the Property shall be prorated between Buyer and Seller as of 12:01 a.m. on the Closing Date, assuming a 30-day month, and the most current statements available to Escrow Holder. For purposes of the closing proration the current real property tax assessment of Lot 5 shall be allocated between the Property and the remainder of Lot 5 proportionately based on their respective acreages. Until such time as the County of Maui commences separate assessments of the units in the Condominium any post-Closing real property tax assessments of Lot 5 shall be allocated between Seller and Buyer based on the same proportion, provided that if the County assesses or taxes the land comprising the Property based on a different classification or use than the remainder of Lot 5 (including the imposition of any rollback tax) then Buyer shall be responsible for the taxes thus assessed. This section 8.4 shall survive closing.
29.5 PAYMENT OF COSTS. Seller shall pay the conveyance tax, recording fees, one-half of the cost of the Title Policy in accordance with paragraph 2.12 (excluding endorsements and extended coverage) in the amount of the Purchase Price, one-half of the Escrow fee, the costs of the Survey, and Seller’s attorneys’ fees. Buyer shall pay one-half the cost of the Title Policy and all premiums for special endorsements or extended coverage as provided under paragraph 6.4(b), one-half of the Escrow fee, and Buyer’s attorneys’ fees.
29.6 ESCROW HOLDER AUTHORIZED TO COMPLETE BLANKS. If necessary, Escrow Holder is authorized to insert the Closing Date as the date of the Limited Warranty Unit Deed.
29.7 RECORDATION AND DELIVERY OF DOCUMENTS. When Buyer and Seller have satisfied their respective closing obligations under paragraphs 6.2 and 6.3 and each of the conditions under paragraphs 3 and 5 have either been satisfied or waived, Escrow Holder shall cause the Limited Warranty Unit Deed to be recorded with the Bureau of Conveyances of the State of Hawaii, in a manner so that the Title Company is in a position to issue the Title Policy as provided in paragraph 6.4(a). Immediately after the Close of Escrow, Escrow Holder shall deliver to Seller and to Buyer all documents and funds to which each is entitled. After recordation, the Limited Warranty Unit Deed shall be returned to Buyer when received by the Bureau of Conveyances. As soon as practicable after recordation, Escrow Holder shall deliver a copy of all documents recorded through escrow bearing the Recorder's identifying information to Buyer and Seller.
30. BROKERAGE COMMISSIONS. There are no brokers involved in this transaction. Each party shall indemnify and hold the other harmless from and against all liabilities, costs, damages, and expenses, including without limitation attorneys’ fees, resulting from or arising out of any claims for finder’s fees or commissions arising out of any contract or commitments made by or through the indemnifying party.
31. CONDITION OF PROPERTY/REPRESENTATION AND WARRANTIES.
31.1 CONDITION OF PROPERTY. Except as otherwise provided herein, Buyer agrees (a) that it is purchasing the Property on an “AS IS” basis and based on its own investigation of the Property, (b) that Seller has made no warranty, representation or guarantee, expressed, implied or statutory, written or oral, including, without limitation, any implied warranty of merchantability or fitness for any purpose or of reasonable workmanship, concerning the Property or any of the improvements located thereon or therein, and (c) that Seller has made no warranty, representation or guarantee as to any government limitation or restriction, or absence thereof, pertaining to the Property, or as to the presence or absence of any latent defect, subsurface soil condition, archeological condition, environmental condition, hazardous substance, toxic waste or any other matter pertaining to the physical condition of the Property. The entire risk as to the quality and performance of the Property and Buyer’s use of the Property is with Buyer, and if the Property, or any other property included in this sale, proves defective following the Closing Date, Buyer, and not Seller, assumes the entire risk and costs of all necessary servicing, curing, correcting, or repair of the defects. In making its decision to purchase the Property, Buyer represents that it has had sufficient opportunity to review, investigate, study and conduct tests on the Property and that it has relied solely upon its investigation of the Property. Except as otherwise provided herein, all of Seller’s statements, whenever made, are made only as an accommodation to Buyer and are not intended to be relied or acted upon in any manner by Buyer. All documents, records, agreements, writings, statistical and financial information and all other information (together “Documents”) which have been given to Buyer by Seller have been delivered as an accommodation to Buyer and without any representation or warranty as to the accuracy, enforceability, or assignability of any of the Documents, all of which Buyer relies on at its own risk. Buyer acknowledges that Seller has made no representation regarding the availability of, or amount of, any fee, assessment, or cost relating to the development, construction, occupancy or ownership of the Property. Seller has not made any representation, warranty or guarantee as to any land use controls or other laws, rules, and regulations of any governmental agency having jurisdiction applicable to the Property. Buyer shall be solely responsible for complying with all land use and environmental controls and other laws, rules, and regulation, including without limitation, those pertaining to hazardous substances and toxic wastes.
31.2 ADDITIONAL DISCLAIMERS. Without limiting the other provisions set forth in this paragraph 10, Buyer acknowledges and agrees to the following:
(a) Buyer acknowledges that (i) the Property is or may be located adjacent to or in the vicinity of various construction activities, including, but not limited to, ongoing residential and commercial and related construction (collectively, the “Development Activities”), (ii) these Development Activities may result in noise, dust, vibration and other nuisances, disturbances or hazards to Buyer and to persons and property on or within the Property; (iii) no representations or warranties are made by Seller or any of its affiliated companies, their respective employees or agents concerning plans, or the absence of plans, by Seller or others for future development of adjacent or nearby properties, and any plans for the future development of adjacent and nearby properties are subject to change in the sole and absolute discretion of Seller; and (iv) Seller makes no representations regarding the view from the Property or any view easements or rights, and the views from the Property are not guaranteed and may be altered, diminished, eliminated or blocked entirely by the future development of adjacent or surrounding properties (items (i) through (iv) are hereinafter collectively called the “Development Effects”).
(b) Buyer acknowledges that the Property is adjacent to, nearby or in the vicinity of lands being, or which in the future may be, actively used for the growing, ranching, harvesting and processing of livestock and agricultural products (such activities being herein collectively called the “Agricultural Activities”), which activities may from time to time bring upon the Project or result in surface water runoff, noise, soot, smoke, dust, light, heat, vapors, odors, chemicals, vibrations, insect pests, agricultural chemicals, particulates and similar substances and nuisances (collectively, the “Agricultural By-Products”). Buyer hereby assumes complete risk of and forever releases Seller from all claims for damages (including, but not limited to, consequential, special, exemplary and punitive damages) and nuisances occurring on the Lot or elsewhere in the Project and arising out of any Agricultural Activities or Agricultural By-Products. Without limiting the generality of the foregoing, Buyer hereby, with full knowledge of its rights, forever: (A) waives any right to require Seller, and releases Seller from any obligation, to take any action to correct, modify, alter, eliminate or abate any Agricultural Activities or Agricultural By-Products, and (B) waives any right to file any suit or claim against Seller for injunction or abatement of nuisances. Buyer hereby agrees that any Agricultural Activities or Agricultural By-Products, and any claim, demand, action, loss, damage, liability, cost or expense arising therefrom, shall not constitute a breach of any covenant or warranty of Seller under this Agreement or be the basis for a suit or other claim for injunction or abatement of nuisances, and Buyer hereby forever waives any right to file any such suit or claim.
31.3 RESERVATION OF EASEMENTS AND OTHER RIGHTS. Without limiting the other provisions set forth in this paragraph 10, Buyer and Seller acknowledge and agree to the following:
(a) Buyer acknowledges the Property may be subject to existing drainage and flowage from adjacent and nearby properties. The Seller shall have the right to record easments for such drainage and flowage from the adjacent and nearby properties on the Property after identifying where such drainage and flowage will cross or impact the Property. Buyer also agrees to an easement, if reasonably necessary, for Seller or Seller’s grantees to have access to adjacent and nearby properties for the Agricultural Activities described herein.
(b) The Limited Warranty Unit Deed shall subject the Property to such other easements as Seller has granted or reserved the right to grant.
31.4 ASSUMPTION OF RISK AND WAIVERS. Buyer represents and warrants to Seller that Buyer, in Buyer’s sole discretion, has determined that the benefits of owning and enjoying the Property outweigh the risks of the physical conditions of the Property, the Development Effects, the Agricultural Activities, and the Agricultural By-Products (collectively, the “Property Conditions”). Buyer hereby irrevocably agrees to suffer and permit all actions and consequences incidental to the Property Conditions. Buyer hereby covenants and agrees to assume all risks of impairment of Buyer’s use and enjoyment of the Property, loss of market value of the Property, and property damage or personal injury arising from the Property Conditions. Upon Closing, Buyer shall assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions and the effect of the Property Conditions, may not have been revealed by Buyer’s investigations; and Buyer, upon Closing, shall be deemed to have waived, relinquished, and released Seller (and its officers, directors, shareholders, members, managers, employees, and agents) from and against any and all claims, demands, causes of action (including causes of action in tort), losses, damages, liabilities, costs and expenses (including attorneys’ fees and court costs) of any and every kind or character, known or unknown, which Buyer might have asserted or alleged against Seller (and its officers, directors, shareholders, members, managers, employees, and agents) at any time by reason of or arising out of any latent or patent defects or physical conditions, violations of any applicable laws (including, without limitation, any environmental or zoning laws), the Property Conditions, and any and all other acts, omissions, events, circumstances, or matters regarding the Property. Buyer agrees that should any clean-up, remediation, or removal or hazardous substances or other environmental conditions on the Property be required after the date of Closing, such clean-up, removal or remediation shall be the responsibility of and shall be performed at the sole cost and expense of Buyer.
31.5 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to Buyer that as of the Effective Date, the last day of the Due Diligence Period and the Closing:
(a) Seller has the capacity and authority to execute this Agreement and perform the obligations of Seller under this Agreement. This Agreement is the valid, binding and enforceable obligation of Seller. All action necessary to authorize the execution, delivery and performance of this Agreement by Seller has been taken and such action has not been rescinded or modified.
(b) Seller is not subject to any judgment or decree of a court of competent jurisdiction or governmental agency that would limit or restrict Seller’s right to enter into and carry out this Agreement.
(c) Seller has not received any uncured written notice from any applicable governmental authority that the Property is not in substantial compliance with any federal, state or local statute, ordinance, rule, regulation, requirement or code relating to the ownership, use and operation of the Property.
31.6 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to Seller that:
(a) Buyer has the capacity and authority to execute this Agreement and perform the obligations of Buyer under this Agreement. All action necessary to authorize the execution, delivery and performance of this Agreement by Buyer has been taken and such action has not been rescinded or modified.
(b) To Buyer’s actual knowledge, without inquiry, Buyer is not subject to any judgment or decree of a court of competent jurisdiction or governmental agency that would limit or restrict Buyer’s right to enter into and carry out this Agreement.
(c) Buyer shall have examined and investigated to Buyer’s full satisfaction the physical condition of the Property and the Document Inventory during the Due Diligence Period. Except for Seller’s representation and warranties set forth in paragraph 10.4 hereof, Buyer has not relied and will not rely on, and Seller is not liable for or bound by, any express or implied warranties, guaranties, statements, representations or information pertaining to the Property or relating thereto made or furnished by Seller.
(d) Prior to the Effective Date Buyer provided Seller with evidence that Buyer possesses funds sufficient to pay the Purchase Price at Closing. Buyer represents and warrants to Seller that such evidence is accurate, complete and does not omit any material information regarding Buyer’s ability to pay the Purchase Price at Closing.
The term “to Buyer’s Knowledge” shall mean the actual knowledge of Race Randle.
31.7 EFFECT AND SURVIVAL. Seller and Buyer acknowledge that the compensation to be paid for the Property has been set taking into account that the Property is being sold subject to the provisions of this paragraph 10. Seller and Buyer agree that the provisions of paragraphs 10.1 through 10.7 shall survive Closing.
31.8 COVENANTS OF SELLER. Seller hereby covenants and agrees with Buyer that from and after the execution of this Agreement until the Closing that:
(a) Seller will maintain the Property in a condition at least as good as its condition on the date of execution of this Agreement.
(b) Except for the agreements contemplated herein, Seller will not enter into any agreement, written or oral, that will be binding on Buyer or the Property subsequent to Closing.
(c) Seller will not take, approve or consent to any action or omission that would change the zoning, uses, permits or licenses of or for the Property.
(d) Except as otherwise contemplated herein, including the Condominium Documents, Seller shall not place on, nor consent to the placement on, any of the Property, any lien, encumbrance, or other matter which would constitute an encumbrance or title exception to the Property and/or under Schedule B of the Preliminary Report.
(e) Seller agrees not to take any action or fail to take any action after the date of the execution of this Agreement and prior to Closing which will cause or prevent the Property from being in compliance with the provisions of this Agreement or which will cause or prevent the Title Company to issue to Buyer the Title Policy with liability in the full amount of the Purchase Price showing good and marketable title in Buyer, subject only to the Permitted Exceptions. Consistent therewith, Seller shall satisfy all customary requirements and other matters set forth in the Title Commitment so that the same are deleted and not transferred to Schedule B of the Title Policy.
31.9 COVENANTS OF BUYER.
(a) Except for the agreements contemplated herein, Buyer will not enter into any agreement, written or oral, that will be binding on the Property prior to Closing.
(b) Buyer agrees not to take any action after the date of the execution of this Agreement and prior to Closing which will cause or prevent the Property from being in compliance with the provisions of this Agreement.
(c) Buyer acknowledges that it shall be solely responsible for securing all governmental approvals required for its proposed use of the Property, including without limitation Special Management Area use permit and building permits. Buyer agrees that it shall not apply for any such permits or approvals prior to Acceptance Notice.
32. ENTRY ON PROPERTY.
32.1 LICENSE TO ENTER. Before beginning any tests, investigations or site work that involve the drilling or disturbance of the surface of the Property, Buyer shall submit to Seller for its reasonable approval, Buyer’s plan for conducting the tests, work or investigations. After any entry, work, testing or investigations, Buyer shall immediately restore the Property to the Property’s condition before Buyer entered on the Property. Buyer shall not allow any dangerous or hazardous condition to be created on or arise from Buyer’s entry, work, testing or investigations on the Property. Buyer shall comply with all applicable laws and governmental regulations applicable to the Property. This limited license may be revoked by Seller at any time, and shall in any event be deemed revoked upon termination of this Agreement.
32.2 INDEMNIFICATION ON ENTRY. Buyer shall indemnify, defend and hold the Property owner, Seller and Seller’s officers, directors, shareholders, employees, agents, subsidiary and parent corporations, affiliated entities, and predecessors, successors and assigns, and the Property harmless from and against all claims, loss, liability, damage, expense and cost (including, without limitation, attorneys’ fees and costs) arising from or relating to the entry of Buyer and its representatives, agents and contractors on the Property. Buyer’s obligations under this paragraph shall survive the Close of Escrow and the termination of this Agreement and shall not be limited by any insurance required under paragraph 11.3.
32.3 INSURANCE ON ENTRY. Buyer shall maintain or cause to be maintained adequate comprehensive liability insurance policies to cover Buyer’s activities on the Property. Buyer shall keep the Property free and clear of all mechanics’ liens and materialmen’s liens arising out of any of Buyer’s activities. Before entering on the Property, Buyer shall deliver to Seller a Certificate of Insurance evidencing compliance with the terms of this paragraph. The liability insurance policy shall have a combined single limit per occurrence liability limit of at least $2,000,000 for premises liability, bodily injury and property damage, shall be primary and noncontributing with any insurance which may be carried by Seller, and shall name the Property owner and Seller as additional insureds. The insurance policy shall be maintained and kept in effect by Buyer (or Buyer’s agent), at Buyer’s (or Buyer’s agent’s) sole expense, at all times during the term of this Agreement.
33. CONDEMNATION. If, before the Closing, all or any material portion of the Property is taken by eminent domain or is the subject of a pending taking which has not been consummated (collectively, a “Taking”), Seller promptly shall notify Buyer of the event after actual knowledge of the Taking and, in that event, Buyer shall have the option to terminate this Agreement as of the date of the Taking by delivery of written notice of Buyer’s election to Seller within fifteen (15) days after receipt of Seller’s notice. If Seller has not received Buyer’s notice within the 15-day period, then Buyer shall be deemed to have elected to terminate the transactions contemplated by this Agreement, and the condemnation proceeds shall become the property of Seller and Buyer shall have no rights to any portion of the condemnation proceeds. If Buyer elects to consummate the transactions contemplated by this Agreement, the condemnation proceeds shall become the property of Buyer. In the event Buyer elects to terminate this Agreement pursuant to this paragraph 12, Buyer and Seller shall share equally all Escrow cancellation charges, Escrow Holder shall promptly return the Deposit to Buyer and upon such reimbursement this Agreement shall terminate.
34. GENERAL PROVISIONS.
34.1 ASSIGNMENT.
(a) This Agreement shall be binding upon and shall inure to the benefit of Buyer and Seller and their respective successors and permitted assigns.
(b) Buyer may not assign its rights under this Agreement without the consent of Seller, which may be granted or withheld in Seller’s sole discretion. Any assignment shall be made not later than five (5) business days prior to the Closing Date or earlier if required in order to allow closing to proceed as scheduled.
34.2 ATTORNEYS’ FEES AND/OR COSTS. In any action or proceeding between the parties to enforce or interpret any of the terms or provisions of this Agreement, the prevailing party in the action or proceeding shall be entitled to its reasonable costs and expenses, including without limitation, costs and reasonable attorneys’ fees.
34.3 NOTICES AND APPROVALS. Any notice, approval, disapproval, demand or other communication required or permitted to be given by any provision of this Agreement (“Notice”) which either party desires to give to the other party or to Escrow Holder shall be in writing and shall be deemed to be sufficiently given or served if: (a) delivered personally to the party to whom the notice is to be delivered; or (b) sent by mail, express mail or commercial courier addressed to the party at the party’s address as it appears in this Agreement, or at any other address as that party may from time to time specify by written notice; or, (c) given by transmittal over electronic transmitting device, such as fax machine, if the party to whom the notice is sent has such a device in its office, provided a complete copy of any notice of transmitted shall also be mailed in the same manner as required for a mailed notice. Any notice shall be deemed to be given as of the date received (and in the event of facsimile confirmed with confirmation by sender’s facsimile machine), except that if the party declines to acknowledge receipt or has changed his address and not otherwise informed the other party of the new address, receipt shall be deemed as of the date of the attempted delivery.
34.4 CONTROLLING LAW. This Agreement shall be construed under the laws of the State of Hawaii which are in effect at the time of the signing of this Agreement and which may then exist at the time of enforcement of any provisions of this Agreement that survive closing.
34.5 TITLES AND CAPTION. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. References to paragraph numbers are to paragraphs in this Agreement, unless expressly stated otherwise.
34.6 INTERPRETATION. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” If a dispute arises over the interpretation or construction of any provision, term, or word contained in this Agreement, this document shall be interpreted and construed neutrally, and not against either Buyer or Seller.
34.7 NO WAIVER. A waiver by either party of a breach of any of the covenants, conditions or obligations under this Agreement to be performed by the other shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement.
34.8 MODIFICATIONS. Any alteration, change, or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party.
34.9 SEVERABILITY. If any term or provision of this Agreement, or its application to any party or set of circumstances, shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and each shall be valid and enforceable to the fullest extent permitted by law.
34.10 INTEGRATION OF PRIOR AGREEMENTS AND UNDERSTANDINGS. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by the Agreement. All prior or contemporaneous agreement, understandings, representations, warranties, and statements, whether oral or written, are superseded by this Agreement.
34.11 NOT AN OFFER. Seller’s delivery of unsigned copies of this Agreement is solely for the purposes of review by Buyer, and neither the delivery nor any prior communications between Buyer and Seller, whether oral or written, shall in any way be construed as an offer by Seller, nor in any way imply that Seller is under any obligation to enter the transaction which is the subject of this Agreement. The signing of this Agreement by Buyer constitutes an offer which shall not be deemed accepted by Seller unless and until Seller has signed this Agreement after approval by Seller’s Board of Directors and has delivered a duplicate original to Buyer.
34.12 TIME OF ESSENCE. Time is expressly made of the essence as to the performance of each and every obligation and condition of this Agreement.
34.13 POSSESSION OF PROPERTY. Buyer shall be entitled to exclusive possession of the Property upon execution and delivery of the Limited Warranty Unit Deed.
34.14 COUNTERPARTS. This Agreement may be signed in multiple counterparts which shall, when signed by all parties constitute a binding agreement.
34.15 EXHIBITS INCORPORATED BY REFERENCE. All exhibits attached to this Agreement are incorporated in this Agreement by this reference.
34.16 COMPUTATION OF TIME. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the Effective Date), and including the last day, unless the last day is not a business day, and then that day is also excluded. All references to time shall be deemed to refer to Hawaii time.
34.17 SURVIVAL. Except as otherwise provided herein, all of the terms and provisions hereof shall not survive the Closing and the delivery of the Limited Warranty Unit Deed.
34.18 JOINT AND SEVERAL LIABILITY. If Buyer is composed of more than one individual or entity, all obligations and liabilities of Buyer under this Agreement shall be joint and several as to each of those individuals or entities who compose Buyer.
34.19 BUYER’S WORK PRODUCT CONCERNING THE PROPERTY. If for any reason Buyer fails to purchase the Property, and as a condition to the return of any Deposit(s) to Buyer (if Buyer is so entitled), Buyer shall immediately assign and deliver, without recourse, representation and warranty, (and to the extent assignable) to Seller, at no cost to Seller, or authorize immediate delivery by such third parties preparing same, any and all, tests, studies, plans, reports or other materials or work product prepared by third parties, related to the Property (“Work Product”), at no cost to Seller, and any information provided to Buyer by Seller. Following delivery, Seller may use this Work Product for any purpose.
34.20 NO OBLIGATIONS TO THIRD PARTIES. The execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties to this Agreement to, any person or entity other than Seller and Buyer.
35. HAZARDOUS MATERIALS DISCLOSURE AND INDEMNIFICATION.
35.1 HAZARDOUS MATERIAL DISCLOSURE. Seller and Buyer understand, acknowledge and agree that various materials may be utilized in the construction of any improvements or may already be existing in or on, around, or under the Property; and which materials may have contained materials that may have been or may in the future be determined to be toxic, hazardous or undesirable and may need to be specially treated, specially handled and/or removed from the property. (For example, some electrical transformers and other electrical components contain PCBs, and asbestos has been used in a wide variety of building components, such as fire-proofing, air duct insulation, acoustical tiling, spray-on acoustical materials, linoleum, floor tiling and plaster.) Due to current or prior uses, the property, of which the Property is a part, or the improvements thereto, may contain materials such as metal, minerals, chemicals, pesticides, arsenic, hydrocarbons biological or radioactive materials and other substances which are considered, or may in the future may be determined to be toxic waste, hazardous materials or undesirable substances. Such substances may be in above or below ground containers on the property, of which the Property are a part, or may be present on, or in soils, water, building components or other portions of the property, in areas that may or not be acceptable or noticeable.
Current and/or future federal, state and local regulations may require the clean-up of such toxic, hazardous or undesirable materials at the expense of those persons who in past, present or future have had any interest in the Property, including, but not limited to, current, past and future owners and users of any such Property. Buyer hereby releases Seller and Seller’s affiliated companies from all such liability, except to the extent of a breach of warranty of Seller under this Agreement.
SELLER AND BUYER HAVE BOTH BEEN ADVISED TO SEEK AND CONSULT WITH INDEPENDENT LEGAL COUNSEL AND HAVE CONSULTED WITH SUCH COUNSEL, TO THE EXTENT THAT EACH HAS DEEMED NECESSARY, PRIOR TO THE EXECUTION OF THIS AGREEMENT, TO DETERMINE THEIR POTENTIAL OBLIGATIONS AND LIABILITY WITH RESPECT TO SUCH TOXIC, HAZARDOUS AND UNDESIRABLE MATERIAL.
Each of Seller and Buyer represents and warrants to the other, that to its Knowledge, the Property is not in violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene, Hazardous Materials (as defined herein) or to environmental conditions on, or about the Property, including, but not limited to soil and ground water conditions. Seller represents and warrants to Buyer that during the time Seller has leased, owned or controlled the Property, neither Seller, nor, to the Seller’s Knowledge, any third party, has used, generated, manufactured, produced, transported or stored or disposed of, on, under or above the Property, transported to or from the property any inflammable explosives, asbestos, radioactive materials, hazardous waste, toxic substances or related hazardous materials, whether injurious by themselves or in combination with other materials (collectively “Hazardous Materials”) in violation of applicable law, except that Seller has informed Buyer that Seller or Seller’s affiliated companies have used pesticides and other chemicals on the Property in connection with agricultural operations and that some of the pesticides or other chemicals, including but not limited to arsenic, may remain on the Property. For the purpose of this Agreement, Hazardous Materials include but are not limited to substances defined as “hazardous or toxic substances”, “hazardous or toxic materials”, or “hazardous or toxic wastes”, or other form of pollutant or contaminants including petroleum, asbestos, polychlorinated biphenyls and radioactive materials in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et. seq.; Hazardous Materials Transportation Act, 49 U.S.C. §1801, et. seq.; Resource Conservation and Recovery Act, 42 U.S.C. §6901, et. seq.; 42 U.S.C. Section 7401 et. seq., 33 U.S.C. Section 1251 et. seq., §25100 et. seq.; and in the regulations adopted and publications promulgated pursuant to said laws and in any relevant or corresponding or supplemental laws, of the State of Hawaii or any municipality thereof, together with any successor or amended laws or regulations as may be hereinafter promulgated, or new regulations or laws similarly purporting to regulate substances used, generated, disposed of or situated in real property which are hereinafter enacted. Buyer shall indemnify, defend and hold Seller and Seller’s officers, directors, shareholders, employees, agents, subsidiary and partner corporation, affiliated entities, predecessors, successors, and assigns, harmless from and against all claims, losses, liabilities, damage, fines, causes of action, penalties, costs and expenses (including without limitation, reasonable attorneys’ fees and costs) arising from or relating to any use of, or conduct or presence on the Property after the Closing Date of any Hazardous Materials, including without limitation, the use, generation, storage, release, transportation, presence, and discharge of any hazardous waste or toxic substance (as defined under any applicable federal, state or local code, statue, ordinance or rule) or of any petroleum or hydrocarbon product or by-product.
36. TAX DEFERRED EXCHANGE. Seller reserves the right to structure the conveyance of the Property to Buyer as a tax-deferred exchange under Section 1031 of the Code. Seller may assign this Agreement to a qualified intermediary in order to facilitate the Code Section 1031 exchange transaction. Seller and Buyer agree to cooperate in effecting such transaction, including, without limitation, consenting to the assignment of this Agreement to a qualified intermediary, provided that any such exchange transaction, and the related documentation, shall: (a) not require Seller or Buyer to execute any contract (other than as set forth herein), make any commitment, or incur any obligations, contingent or otherwise, to third parties which would expand Seller’s or Buyer’s obligations beyond this Agreement, (b) not delay the Closing or the transaction contemplated by this Agreement, or (c) not include Seller’s or Buyer’s acquiring title to any other property.
37. PUBLIC DISCLOSURE. Prior to Closing, any release to the public of information with respect to the sale contemplated herein or any matters set forth in this Agreement will be made only in the form approved by Buyer and Seller and their respective counsel, except that Seller may make any disclosure Seller reasonably believes is necessary to comply with applicable law or prudent as a publicly traded company.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the Effective Date.
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“BUYER” |
“SELLER” |
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MAUI LAND & PINEAPPLE COMPANY, INC. |
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/s/ Race Randle |
By: /s/ Wade Kodama |
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RACE RANDLE |
Name: Wade Kodama |
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Title: Chief Financial Officer |
Exhibit 21.1
Maui Land & Pineapple Company, Inc.—Subsidiaries
As of December 31, 2025
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Name |
State of |
Percentage Ownership |
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Maui Pineapple Company, Ltd. |
Hawai‘i |
100 |
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Kapalua Land Company, Ltd. |
Hawai‘i |
100 |
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Kapalua Realty Company, Ltd. |
Hawai‘i |
100 |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statements No. 333 217538 and No. 333 273009 on Form S 8 of our report dated March 31, 2026, relating to the consolidated financial statements of Maui Land & Pineapple Company, Inc. and its subsidiaries (which report expresses unqualified opinions), appearing in this Annual Report on Form 10 K of Maui Land & Pineapple Company, Inc. for the years ended December 31, 2025 and 2024.
/s/ ACCUITY LLP
Honolulu, Hawaii
March 31, 2026
Exhibit 31.1
CERTIFICATION
I, Race A. Randle, certify that:
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1. |
I have reviewed this Annual Report on Form 10-K of Maui Land & Pineapple Company, Inc. (the “Registrant”); |
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; |
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4. |
The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have: |
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(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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(c) |
Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
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(d) |
Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and |
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5. |
The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions): |
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(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and |
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(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting. |
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Date: March 31, 2026 |
By: |
/s/ RACE A. RANDLE |
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Race A. Randle |
Exhibit 31.2
CERTIFICATION
I, Wade K. Kodama, certify that:
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1. |
I have reviewed this Annual Report on Form 10-K of Maui Land & Pineapple Company, Inc. (the “Registrant”); |
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report; |
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4. |
The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have: |
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(a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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(b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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(c) |
Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
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(d) |
Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and |
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5. |
The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions): |
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(a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and |
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(b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal control over financial reporting. |
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Date: March 31, 2026 |
By: |
/s/ WADE K. KODAMA |
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Wade K. Kodama |
EXHIBIT 32.1
CERTIFICATION
In connection with the Annual Report of Maui Land & Pineapple Company, Inc. (the “Company”) on Form 10-K for the fiscal year ended December 31, 2025 as filed with the Securities and Exchange Commission on March 31, 2026 (the “Report”), I, Race A. Randle, Chief Executive Officer of the Company, certify, pursuant to Rule 13a-14(b) or Rule 15d-14(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 780(d)) and 18 U.S.C. Section 1350, that to the best of my knowledge:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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By: |
/s/ RACE A. RANDLE |
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Race A. Randle |
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March 31, 2026 |
This certification accompanies this Report pursuant to Rule 13a-14(b) or Rule 15d-14(b) under the Securities Exchange Act of 1934 and 18 U.S.C. Section 1350 and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934.
EXHIBIT 32.2
CERTIFICATION
In connection with the Annual Report of Maui Land & Pineapple Company, Inc. (the “Company”) on Form 10-K for the fiscal year ended December 31, 2025, as filed with the Securities and Exchange Commission on March 31, 2026 (the “Report”), I, Wade K. Kodama, Chief Financial Officer of the Company, certify, pursuant to Rule 13a-14(b) or Rule 15d-14(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 780(d)) and 18 U.S.C. Section 1350, that to the best of my knowledge:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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By: |
/s/ WADE K. KODAMA |
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Wade K. Kodama |
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March 31, 2026 |
This certification accompanies this Report pursuant to Rule 13a-14(b) or Rule 15d-14(b) under the Securities Exchange Act of 1934 and 18 U.S.C. Section 1350 and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934.