Maui Land & Pineapple Co Inc 10-K for FY2021
Maui Land & Pineapple Co Inc (MLP)
About this 10-K
Maui Land & Pineapple Co Inc filed this 10-K on March 1, 2022, covering the fiscal year ended December 31, 2021 (FY2021).
Headline figures
Fiscal year ended December 31, 2021, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $12.44M
- up 65.0% from $7.54M a year earlier
- Net loss
- $3.42M
- compared with a net loss of $2.6M a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
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| Commission file number 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 if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ☒
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 company has filed an attestation report regarding management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act by the registered public accountants that audited the company’s financial statements.
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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| Portions of registrant’s Proxy Statement for registrant’s 2022 Annual Meeting of Shareholders | |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K for the year ended December 31, 2021 (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” or “could,” “estimate,” “expect,” “intend,” “may,” “might,” “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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unstable macroeconomic market conditions; |
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risks associated with real estate investments and the real estate market; |
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the COVID-19 pandemic and its variants, or the potential for an outbreak of another highly infectious or contagious disease; |
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our location in Hawaii; |
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risks associated with involvement with joint venture partners; |
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our ability to complete land development projects within forecasted time and budget expectations, if at all; |
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our ability to obtain required land use entitlements at reasonable costs, or at all; |
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our ability to successfully compete with other developers of real estate in Maui; |
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environmental regulations pertaining to land development; |
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risk of climate change, severe weather or natural disasters could adversely impact our business; |
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our insurance coverages may be inadequate to cover catastrophic losses; |
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unauthorized use of our trademarks could negatively impact our business; |
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market volatility of asset values and interest rates could materially impact the funded status of our defined benefit pension plans; and |
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changes in U.S. accounting standards may adversely impact 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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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 Hawaii corporation and the successor to a business organized in 1909. 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, its principal subsidiary, Kapalua Land Company, Ltd., and certain other subsidiaries.
We own approximately 23,000 acres of land on the island of Maui, Hawaii and develop, sell, and manage residential, resort, commercial, agricultural and industrial real estate through the following business segments:
• Real Estate— Our real estate operations consist of land planning and entitlement, development and sales activities. This segment also included the operations of Kapalua Realty Company, Ltd., a general brokerage real estate company located in the Kapalua Resort through August 2020.
• 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 and conservation efforts.
• Resort Amenities—We manage the operations of the Kapalua Club, a private, non-equity club program providing our members special programs, access, and other privileges at certain amenities at the Kapalua Resort.
For additional information and operating results related to the above business segments refer to the section entitled “General Development of Business” in this Item 1 and in Note 10 to our financial statements set forth in Item 8 of this Annual Report.
General Development of Business
Real Estate
Our Real Estate 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 encompassing approximately 3,000 acres. The following is a summary of our landholdings in acres as of December 31, 2021:
| West Maui |
Upcountry Maui |
Total |
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| Fully entitled urban |
900 | - | 900 | |||||||||
| Agricultural zoned |
10,800 | 2,100 | 12,900 | |||||||||
| Conservation/watershed |
9,000 | - | 9,000 | |||||||||
| 20,700 | 2,100 | 22,800 | ||||||||||
Revenues from our Real Estate segment totaled $3.4 million, or approximately 27% of our total operating revenues for the year ended December 31, 2021.
Real Estate Planning and Entitlements – Appropriate entitlements must be obtained for land that is intended for development. Securing proper land entitlements is a process that requires obtaining county, state and federal approvals, which can take many years to complete and entails a variety of risks. The entitlement process requires that we satisfy all conditions and restrictions imposed in connection with such governmental approvals, including, among other things, construction of infrastructure improvements, payment of impact fees – for conditions such as schools, public parks and traffic mitigation – restrictions on permitted uses of the land, and provision of affordable housing. We actively work with the community, regulatory agencies, and legislative bodies at all levels of government in an effort to obtain necessary entitlements consistent with the needs of the community.
We have approximately 1,200 acres of land on Maui that are in various stages of the development process. The following is a summary of our development projects as of December 31, 2021:
| Location |
Approximate Number of |
Zoned for |
Anticipated Completion Dates |
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| Kapalua Resort |
900 | Yes |
2022 | - | 2039 | |||||
| Hali’imaile Town |
300 | No |
2029 | - | 2034 | |||||
We are engaged in planning, permitting and entitlement activities for our development projects, and we intend to proceed with construction and sales of the following projects, among others, when internal and external factors permit:
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Kapalua Resort: We began development of the Kapalua Resort in the early 1970’s. Today, the Kapalua Resort is an internationally recognized world-class destination resort and residential community. We presently have entitlements to develop a variety of projects in the Kapalua Resort. Two that are currently planned include Kapalua Mauka and Kapalua Central Resort. |
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| Kapalua Mauka is a long-term expansion project of the Kapalua Resort which is located directly upslope of the existing resort development. As presently planned, it encompasses 800 acres and includes up to 639 residential units with extensive amenities, including up to 27 additional holes of golf. State and County land use entitlements have been secured for this project. |
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| Kapalua Central Resort is a commercial town center and residential community located in the core of the Kapalua Resort. It is comprised of 46 acres and is planned to include up to 61,000 square feet of commercial space and 196 condominium and multi-family residential units. State and County land use entitlements have been secured for this project.
In December 2021, we entered into an agreement to sell our Kapalua Resort property for $40.0 million. The closing of the transaction is contingent upon, among other things, the satisfaction of certain customary closing conditions. Terms of the agreement include a due diligence period of 120 days and a closing date no later than March 31, 2022. |
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Hali`imaile Town: An expansion of an existing plantation town in Upcountry Maui, this project is contemplated to be a holistic traditional community with agriculture and sustainability as core design elements. The project includes 290 acres classified as “Small Town” in the long-range County of Maui Island Plan. This designation allows the potential for residential, industrial and commercial development at a moderate density. We are in the early stages of this project’s development and securing State and County land use entitlements are expected to take several years. |
Projected development costs are expected to be financed by debt financing, private investment, joint ventures with other development or construction companies, or a combination of these methods.
The price and market for luxury and other real estate in Maui are highly cyclical and influenced significantly by interest rates, the general real estate markets in the mainland United States and specifically the West Coast, the popularity of Hawaii as a vacation destination and second-home market, the general condition of the economy in the United States and Asia, and the relationship of the dollar to foreign currencies. Our Real Estate segment faces substantial competition from other landowners and developers on the island of Maui, as well as in other parts of Hawaii and the mainland United States.
Leasing
Our Leasing segment operations include 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 stewardship and conservation efforts.
Revenues from our Leasing segment totaled $8.1 million, or approximately 65% of our total operating revenues for the year ended December 31, 2021.
Commercial and Industrial Leases – We are the owner and lessor of approximately 184,000 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 and industrial leases as of December 31, 2021:
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Average |
Lease |
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Occupancy |
Expiration |
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| Footage |
Percentage |
Dates |
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| Kapalua Resort |
57,000 | 93% | 2022 | - | 2048 | ||||||||
| Other West Maui |
14,000 | 93% | 2024 | - | 2034 | ||||||||
| Upcountry Maui |
113,000 | 91% | 2022 | - | 2030 | ||||||||
Agricultural Leases – We are the lessor of approximately 6,000 acres of diversified agriculture, renewable energy, eco tours, and activities land leases in West and Upcountry Maui.
Trademark and Trade Name Licensing – We currently have licensing agreements for the use of our registered Kapalua and other 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 manage the conservation of a 9,000-acre nature and watershed preserve in West Maui. A portion of our stewardship and conservation efforts is subsidized by the State of Hawaii, the County of Maui, and other organizations.
Our Leasing segment operations are highly sensitive to economic conditions including tourism and consumer spending levels and faces substantial competition from other property owners in Maui and Hawaii. The amount of rainfall and the level of development in the Kapalua Resort area also affect the demand 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 of the amenities at the Kapalua Resort including a 30,000 square foot full-service spa and a private pool-side dining beach club.
Revenues from our Resort Amenities segment totaled $0.9 million, or approximately 8% of our total operating revenues for the year ended December 31, 2021.
The viability of 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 Hawaii.
Employees
As of December 31, 2021, we had nine employees, none of whom are members of a collective bargaining group.
A Code of Business Conduct and Ethics applies to all directors and employees. We also utilize an ethics reporting email and voice system which is monitored by the Audit Committee of the Board of Directors.
An executive compensation program is designed and administered by the Compensation Committee of the Board of Directors. The program includes annual and long-term incentive compensation plans for certain of the Company’s executive officers. Payouts are payable in common stock and are based on achieving predetermined thresholds under various performance measurements. An advisory vote of shareholders is cast annually on the compensation paid to our named executive officers.
Available Information
Our internet address is www.mauiland.com. Information about the Company is also available on www.kapalua.com. Reference in this Annual Report to these website addresses 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. We also make available through our website all filings of our executive officers and directors on Forms 3, 4 and 5 pursuant to Section 16 of the Exchange Act. 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 the Company’s common stock involves substantial risk. The Company’s 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 the Company’s 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 significantly 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 the 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 Hawaii 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 Hawaii 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 Hawaii; |
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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 Hawaii 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 tsunamis, hurricanes, earthquakes, and other natural disasters, including the impacts of the COVID-19 pandemic and its variants |
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.
The COVID-19 pandemic, or an outbreak of another highly infectious or contagious disease, could adversely affect our business, financial condition, results of operations and cash flow.
The spread of a highly infectious or contagious disease, such as COVID-19 and its variants, has caused and could continue to cause severe disruptions in the U.S. economy, which could in turn disrupt the business, activities, and operations of our customers, as well as our business and operations. The COVID-19 pandemic has caused significant disruption in business activity and financial markets both globally and in the United States. Many states and localities have imposed limitations on commercial activity and public gatherings and events, as well as moratoria on evictions. Concern regarding the spread of COVID-19 may continue to cause quarantines, business shutdowns, reduction in business activity and financial transactions, increased unemployment, restrictions on travel, reduced tourism to Maui, reduced real estate development activity and overall economic and financial market instability, all of which may result in a decrease in our business, financial condition and results of operations. Such conditions are likely to exacerbate many of the risks described elsewhere in this section. Therefore, to the extent that economic activity, travel, real estate development and business conditions are impacted, our business, financial condition, results of operations and cash flows could be materially adversely affected. If related government restrictions impact the buyers’ determinations during the respective due diligence periods, the sales of these assets may be adversely impacted.
Because we are located in Hawaii 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 Hawaii 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 Hawaii 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, such as COVID-19 and its variants, 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 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, occupancy and other required governmental permits and authorizations; |
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development costs incurred for projects that are not pursued to completion; |
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earthquakes, tsunamis, hurricanes, floods, fires or other natural disasters that could adversely impact a project; |
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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; |
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ability to raise capital; |
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impact of governmental fines and assessments such as park fees or affordable housing requirements; |
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governmental restrictions on the nature or size of a project or timing of completion; and |
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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 entitlements at reasonable costs, or at all, our operating results would be adversely affected.
The financial performance of our Real Estate segment is dependent upon our success in obtaining land use entitlements for proposed development projects. Obtaining all of the necessary entitlements 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 entitlements to proceed with a real estate development or may be required to alter our plans for the development. Delays or failures to obtain these entitlements 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 Hawaii 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 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.
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 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 funded status and our ability to satisfy the future obligations of the plan is 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 $15.0 million revolving line of credit facility with a bank. The credit facility has a maturity date of December 31, 2025 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 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.
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.
In 2021, the low and high share prices of our common stock ranged from $9.24 to $12.80. 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 shareholders.
As of January 28, 2022, affiliates of our company owned, in the aggregate, approximately 65% of our outstanding shares. 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 shareholders would support such a sale or change of control.
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, 2021, was approximately 22,000 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.
If we do not meet the continued listing requirements of the New York Stock Exchange (“NYSE”), our common stock may be delisted.
Our common stock is currently listed on the NYSE. If we are unable to maintain compliance with the NYSE’s continued listing standards the NYSE may take action to delist our common stock. Delisting could negatively impact us by, among other things, reducing the liquidity and market price of our common stock, reducing the number of investors willing to hold or acquire our common stock, and limiting our ability to issue additional securities or obtain additional financing in the future, and might negatively impact our reputation and, as a consequence, our business. In addition, if our common stock is delisted, it would violate the covenants of our credit facility.
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 |
None.
| 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 our landholdings as of December 31, 2021:
| Acres |
||||
| West Maui |
20,700 | |||
| Upcountry Maui |
2,100 | |||
| Total |
22,800 | |||
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 within the 3,000-acre Kapalua Resort. The remaining lands are mainly former pineapple fields, gulches, undeveloped coastal and forest areas, and our 9,000-acre conservation watershed preserve.
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.
We have pledged certain of our real estate properties in the Kapalua Resort as security for borrowings under our credit facility.
In December 2021, we entered into an agreement to sell the Kapalua Central Resort property for $40.0 million. The closing of the transaction is contingent upon, among other things, the satisfaction of certain customary closing conditions. Terms of the agreement include a due diligence period of 120 days and a closing date no later than March 31, 2022.
We own our corporate office located in the Kapalua Resort. 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 |
On December 31, 2018, the State of Hawaii 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 $230,000 administrative penalty and development of a new wastewater treatment plant, which become final and binding – unless a hearing is requested to contest the alleged violations and penalties.
The DOH agreed to defer the Order without a hearing date while we continue working on a previously approved corrective action plan to resolve and remediate the facility’s wastewater effluent issues. The construction of additional leach fields was completed as of December 31, 2020. Additionally, the installation of a surface aerator, sludge removal system, and natural pond cover using water plants was completed in 2021. Our continued testing of wastewater effluent consistently returns results within the allowable ranges. We are in compliance with all of the required standards. No hearing date has been set as discussions with the DOH are still ongoing to address any other matters regarding the Order.
We have accrued approximately $23,000 related to the administrative penalty at December 31, 2021. We are presently unable to estimate the remaining amount, or range of amounts, of any probable liability, if any, related to the Order and no additional provision has been made in the accompanying financial statements.
From time to time, we are a party to various claims, complaints and other legal actions that have arisen in the normal course of our business activities. We believe the outcome of these pending legal proceedings, in the aggregate, is not likely to have a material adverse effect on our operations, financial position or cash flows.
| MINE SAFETY DISCLOSURES |
Not applicable.
| 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.” Our ability to declare dividends is restricted by the terms of our credit agreement. We do not anticipate paying any cash dividends on our common stock in the foreseeable future. As of February 9, 2022, there were 225 shareholders 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.
Unregistered Sales of Equity Securities
None.
Repurchases
None.
Securities Authorized For Issuance Under Equity Compensation Plans
The information regarding securities authorized for issuance under our equity compensation plans is set forth in Item 12 of this Annual Report.
| SELECTED FINANCIAL DATA |
Because we are a smaller reporting company, as defined in Item 10(f)(1) of Regulation S-K, we are not required to provide the information required by this Item.
| MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
The following discussion and analysis should be read in conjunction with the forward-looking statements disclaimer set forth at the beginning of this Annual Report, the risk factors set forth in Item 1A of this Annual Report, and our financial statements and the notes to those statements set forth in Item 8 of this Annual Report.
RESULTS OF OPERATIONS
Comparison of Years Ended December 31, 2021 and 2020
CONSOLIDATED
| Years Ended December 31, |
||||||||
| 2021 |
2020 |
|||||||
| (in thousands except share amounts) |
||||||||
| Operating revenues |
$ | 12,443 | $ | 7,540 | ||||
| Segment operating costs and expenses |
(5,600 | ) |
(4,726 | ) |
||||
| General and administrative |
(2,569 | ) |
(2,445 | ) |
||||
| Share-based compensation |
(1,449 | ) |
(1,632 | ) |
||||
| Depreciation |
(1,188 | ) |
(1,289 | ) |
||||
| Operating Income (Loss) |
1,637 | (2,552 | ) |
|||||
| Other income |
13 | 894 | ||||||
| Pension and other postretirement expenses |
(4,732 | ) |
(475 | ) |
||||
| Interest expense |
(122 | ) |
(134 | ) |
||||
| Loss from Continuing Operations |
(3,204 | ) |
(2,267 | ) |
||||
| Loss from Discontinued Operations |
(216 | ) |
(337 | ) |
||||
| Net Loss |
$ | (3,420 | ) |
$ | (2,604 | ) |
||
| Loss from Continuing Operations per Common Share |
$ | (0.17 | ) |
$ | (0.12 | ) |
||
| Loss from Discontinuing Operations per Common Share |
$ | (0.01 | ) |
$ | (0.02 | ) |
||
| Net Loss per Common Share |
$ | (0.18 | ) |
$ | (0.14 | ) |
||
REAL ESTATE
| Years Ended December 31, |
||||||||
| 2021 |
2020 |
|||||||
| (in thousands) |
||||||||
| Operating revenues |
$ | 3,400 | $ | 772 | ||||
| Operating costs and expenses |
(750 | ) |
(600 | ) |
||||
| Operating income |
$ | 2,650 | $ | 172 | ||||
Real estate operating revenues include the sales of real estate inventory and sales commissions from resales of properties by our wholly owned subsidiary, Kapalua Realty Company, Ltd.
In May 2021, we sold the property commonly known as the Steeple House located in the Kapalua Resort for $1.8 million. The sale included the fee simple interest of the 1.1 acre parcel as well as buildings and improvements located on the property.
In June 2021, we sold and granted to a conservation organization a perpetual, non-exclusive conservation easement consisting of approximately 791 acres of unimproved land in Honolua Valley for $0.9 million. This easement permits the buyer right of entry to perform improvements to enhance and improve conservation and preservation efforts to the property. Limited commercial activity relating to conservation education, guided hikes and eco-tourism site visits are permitted.
In November 2021, we received twelve residential workforce housing credits valued at $0.6 million pursuant to Maui County Code Section 2.96.050 from the buyer of a 5.27 acre parcel located in Kapalua, also known as Site 6-0. As a condition of the sale in 2016, the buyer of the parcel was required to transfer these credits within five years of closing.
In December 2021, we sold to the County of Maui the fee simple interest in a 1.065 acre property in West Maui, otherwise known as Lot B-1 of the Gorilla Foundation Subdivision, for $0.1 million.
In December 2020, we sold to the County of Maui a 5.1 acre, agricultural zoned parcel in West Maui for $0.6 million expanded storage capacity of its recycled water system.
During the six months ended June 30, 2020, Kapalua Realty Company, Ltd., provided licensed, general brokerage services for properties in the Kapalua Resort and surrounding areas. We earned sales commissions of $0.2 million during the year ended December 31, 2020. Effective July 1, 2020, we entered into an office lease agreement and license agreement with a real estate company to provide general brokerage services to the area. Under terms of the license agreement, monthly royalty fees are received for the use of certain of our trademarks. No sales commissions were earned during the year ended December 31, 2021.
Real estate development expenditures were $0.1 million and $0.4 million during the years ended December 31, 2021 and 2020, respectively.
Real estate development and sales are cyclical and depend on several factors. Results for one period are therefore not necessarily indicative of future performance trends in this business segment.
LEASING
| Years Ended December 31, |
||||||||
| 2021 |
2020 |
|||||||
| (in thousands) |
||||||||
| Operating revenues |
$ | 8,103 | $ | 5,948 | ||||
| Operating costs and expenses |
(3,495 | ) |
(2,933 | ) |
||||
| Operating income |
$ | 4,608 | $ | 3,015 | ||||
Leasing operating revenues for the year ended December 31, 2021, were comprised of $6.2 million from commercial, industrial, and agricultural leases, $0.7 million of licensing fees from our registered trademarks and trade names, and $1.2 million from potable and non-potable water system sales. This compares to $4.3 million from commercial, industrial, and agricultural leases, $0.5 million of licensing fees from our registered trademarks and trade names, and $1.1 million from potable and non-potable water system sales for the year ended December 31, 2020.
The increase in leasing operating revenues for the year ended December 31, 2021, compared to the year ended December 31, 2020, was primarily due to higher percentage rental income from our commercial leasing portfolio. Certain rental income is contingent upon the sales of the tenant exceeding a defined threshold and recognized as a percentage of sales after those thresholds are achieved. Percentage rental income was $1.5 million and $0.4 million during the years ended December 31, 2021 and 2020, respectively. The impact of COVID-19 travel restrictions and social distancing measures reduced visitor traffic on the island of Maui which affected tenants’ sales in 2020. Rent abatements of $0.4 million were granted to tenants during 2020.
The increase in leasing operating costs and expenses for the year ended December 31, 2021, compared to the year ended December 31, 2020, was primarily due to higher repairs and maintenance costs for our commercial leasing portfolio properties. In addition, expenses related to the repair of non-potable irrigation ditch and transmission systems damaged from Tropical Storm Olivia in October 2018 were reduced by insurance reimbursements of $0.2 million in 2020.
Our leasing operations face substantial competition from other property owners in Maui and Hawaii.
RESORT AMENITIES
| Years Ended December 31, |
||||||||
| 2021 |
2020 |
|||||||
| (in thousands) |
||||||||
| Operating revenues |
$ | 940 | $ | 820 | ||||
| Operating costs and expenses |
(1,355 | ) |
(1,193 | ) |
||||
| Operating loss |
$ | (415 | ) |
$ | (373 | ) |
||
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, 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.
Kapalua Club membership dues rates were increased for the year ended December 31, 2021 to offset higher contracted fee expenses. During a portion of the year ended December 31, 2020, access to certain facilities and amenities was restricted due to public health measures and regulations related to COVID-19. As a result of these facility closures, a partial refund of member dues was issued resulting in lower than anticipated operating revenues in 2020.
Contracted fee expenses correspondingly increased for the year ended December 31, 2021, compared to the year ended December 31, 2020, primarily due to higher contracted golf course fees charged to the Company.
Member dues may be affected in future periods depending on the impact of COVID-19 on public health measures and travel regulations.
OTHER INCOME
We held a 51% ownership interest in Kapalua Bay Holdings, LLC (“KBH”). In 2009, the investment was written down to zero. In May 2020, as part of the dissolution of KBH, we received $0.9 million as a return of cash collateral related to an owner-controlled insurance program. We received final closing distribution of $13,000 from KBH in March 2021.
PENSION EXPENSE
In November 2021, the Company signed a purchase agreement with an insurer to annuitize the scheduled pension payments of 384 participants currently receiving benefits. Approximately $10.4 million was paid to the insurer from plan assets for the group annuity contract. A settlement charge of $4.3 million was recognized in pension expense as a result of the annuity purchase.
INTEREST EXPENSE
In 2021 and 2020, our interest expense was approximately $0.1 million. At December 31, 2021 and 2020, the interest rate on our Credit Facility with First Hawaiian Bank was 2.12% and 3.65%, respectively.
DISCONTINUED OPERATIONS
In December 2019, we entered into an Asset Purchase Agreement (“Agreement”) to sell the assets of Kapalua Water Company, Ltd. (“KWC”) and Kapalua Waste Treatment Company, Ltd. (“KWT”) located in the Kapalua Resort subject to certain closing conditions, including completion of due diligence and approval by the State of Hawaii Public Utilities Commission (“PUC”). As part of the agreement, the purchaser commited to serve the future expansion areas of Kapalua as they are developed. In return, we agreed to deliver water from our wells and ditches to certain delivery points at defined rates over an initial period of 20 years from the date of closing. The purchase price did not include approximately $3.6 million of water system infrastructure and other related assets conveyed to us by the owner of a 125-acre portion of the Kapalua Mauka project.
Upon entering the Agreement, these assets were classified as held for sale, written down to their fair value, and included in discontinued operations for the years ended December 31, 2021 and 2020.
In March 2021, the sale was approved by the PUC subject to certain closing conditions of its Decision and Order. The Company received net proceeds of approximately $4.2 million upon closing of the sale in May 2021.
IMPACT OF COVID-19
In March 2020, the Governor of the State of Hawaii issued “stay-at-home” orders for its residents and visitors, followed by subsequent “safer-at-home” and “act with care” proclamations in response to the COVID-19 pandemic. In addition, the Governor issued emergency proclamations, pursuant to which all transpacific passengers into the State of Hawaii were required to self-quarantine upon entry. Beginning in October 2020, travelers to the State of Hawaii were able avoid the 10-day quarantine requirement under a pre-travel testing program by presenting a proof of a negative result from a valid COVID-19 Nucleic Acid Amplification Test. Throughout the year ended December 31, 2021, several state and local laws have eased social distancing guidelines and travel restrictions, including the elimination of quarantine restrictions for domestic travelers by providing evidence of full vaccination.
However, the ongoing impacts and disruptions caused by the COVID-19 pandemic in the geographic region in which we operate remain uncertain as of the date of this filing. State and local regulations and measures, including physical distancing, capacity, and proof of vaccination requirements at certain establishments, are periodically adjusted based on public health data such as positivity rates, vaccination counts, and hospital occupancies. The extent to which the COVID-19 pandemic will impact our business, financial condition, and results of operations in the future is highly uncertain and will be affected by a number of factors. These include the duration and extent of the COVID-19 pandemic, the development of new variants of the COVID-19 virus that may be more contagious or virulent than prior versions, the scope of mandated or recommended containment and mitigation measures, the effect of government stabilization and recovery efforts, and the success of vaccine distribution programs.
We continue to monitor the effects of the COVID-19 pandemic on us, our customers, and our vendors. While we are not able to accurately predict the magnitude or scope of such impacts at this time, should the existence of the COVID-19 pandemic continue for an extended period, our future business operations, including the results of operations, cash flows and financial position will be significantly affected. Appropriate remote work arrangements continue to be established for our employees in order to maintain our financial reporting systems.
LIQUIDITY AND CAPITAL RESOURCES
Liquidity
We had cash on hand of $5.6 million and $0.9 million as of December 31, 2021 and 2020, respectively. We also had $15.0 million and $14.8 million of available credit under a $15.0 million revolving line of credit facility with First Hawaiian Bank (“Credit Facility”) as of December 31, 2021 and 2020, respectively.
On December 23, 2021, we executed a Fourth Loan Modification Agreement and Second Amended and Restated Credit Agreement (“Agreements”) extending the maturity date of the Credit Facility to December 31, 2025. 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.
As of December 31, 2021, we were in compliance with the covenants under the Credit Facility.
Cash Flows
Net cash flow provided by our operating activities totaled $1.4 million for the year ended December 31, 2021. Interest payments on our long-term debt totaled $9,000 for the year ended December 31, 2021.
Minimum funding contributions of $0.6 million were made to our defined benefit pension plan in January 2021. We made an additional voluntary contribution of $1.0 million to the plan in August 2021. We are not required to make any additional contributions in 2022.
Future Cash Inflows and Outflows
In December 2021, the Company entered into a purchase and sale agreement in an amount of $40.0 million for a 46-acre parcel located within Kapalua Central Resort. The sale is subject to customary diligence and closing conditions. We anticipate the transaction to close no later than March 31, 2022.
In February 2022, we entered into an agreement to sell a 646-acre parcel located in Upcountry Maui for $9.7 million. Terms of the agreement include a 30-day due diligence period, a closing date 30 days after the last day of the due diligence period, and other customary closing conditions. A $2.0 million refundable deposit was received into escrow.
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.
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 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. |
| • |
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 and comprehensive loss. 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 and comprehensive loss. |
| • |
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. |
| • |
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 6 to our financial statements set forth in Item 8 of this Annual Report. |
| • |
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 8 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 12 to our financial statements set forth in Item 8 of this Annual Report. |
IMPACT OF INFLATION AND CHANGING PRICES
Most of the land we own was acquired from 1911 to 1932 and is carried at cost. At the Kapalua Resort, some of the fixed assets were constructed and placed in service in the mid-to-late 1970’s. Depreciation expense would be considerably higher if fixed assets were stated at current replacement cost.
OFF-BALANCE SHEET ARRANGEMENTS
As of December 31, 2021, we did not have any significant off-balance sheet arrangements, as defined in Item 303(a)(4)(ii) of SEC Regulation S-K.
| QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Because we were a smaller reporting company, as defined in Item 10(f)(1) of SEC Regulation S-K in 2021, we are not required to provide the information required by this Item.
| 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, 2021 and 2020, and the related consolidated statements of operations and comprehensive income (loss), changes in stockholders’ equity, and cash flows for each of the years in the two-year period ended December 31, 2021 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, 2021 and 2020, and the results of their operations and their cash flows for each of the years in the two-year period ended December 31, 2021 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 audit 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 were 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.
Revenue Recognition
Description of the Matter
The Company has multiple revenue streams including real estate sales; leasing and licensing arrangements; and resort amenities, which are recognized upon transfer of goods or services to customers in an amount that reflects the consideration the Company expects to receive in exchange for those goods or services.
Significant judgment is exercised by management in determining revenue recognition for these customer agreements, and may include the following:
● Determination of whether agreements entered into by the Company are contracts with a customer that would be assessed under Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts with Customers, or lease contracts that would be assessed under ASC Topic 842, Leases.
● Determination of whether there is a single or multiple, distinct performance obligation for goods or services to be provided.
● The pattern of delivery for each performance obligation.
● Identification and treatment of contract terms that may impact the timing and amount of revenue recognized.
● Determination of stand-alone selling prices for each distinct performance obligation and for goods and services that are not sold separately.
Given the factors, the related audit effort in evaluating management’s judgments in determining revenue recognition for these customer and lease agreements was extensive and involved subjective estimation and complex auditor judgment.
How We Addressed the Matter in Our Audit
Our audit procedures over revenue recognition and disclosures included the following:
● We obtained an understanding, evaluated the design and implementation of internal controls that address the risks of material misstatement relating to revenue recognized for various revenue streams, including for unique transactions.
● We evaluated management’s significant accounting policies related to these customer agreements for reasonableness.
● For significant agreements, we obtained and read the agreements, and evaluated management’s assumptions used to identify appropriate contracts with customers, identify performance obligations and stand-alone prices for each distinct performance obligation, identify unique contract terms that may impact the timing and amount of revenue recognized, identify the pattern of delivery, and appropriateness of management’s application of accounting policies in accordance with Topics ASC 606 and 842.
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 12 to the consolidated financial statements, the Company’s management determined an initial 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, 2021.
How We Addressed the Matter in Our Audit
Our audit procedures related to the potential contingent liabilities and disclosures included the following:
● We obtained an understanding, 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 to understand the basis for the management’s conclusion that any additional losses from the claims are not probable and reasonably estimable as of December 31, 2021.
● We evaluated the accuracy and completeness of management’s disclosures in the consolidated financial statements by comparing the disclosures to the 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 Company has defined benefit retirement plans that require actuarial valuations to determine estimated benefit obligations and related amounts reported in the Company’s consolidated financial statements as of and for the year ended December 31, 2021. Management engages actuarial specialists to perform the valuation and provides the specialists the assumptions used to measure the amounts reported in the consolidated financial statements and disclosures in the notes to the consolidated financial statements. In 2021, the Company annuitized the scheduled pension payments of 384 participants in its pension 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 2021. This required a high degree of auditor judgment and an increased extent of effort when performing audit procedures over the settlement.
How We Addressed the Matter in Our Audit
Our audit procedures accrued retirement benefits and related amounts and disclosures included the following:
● We obtained an understanding, 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 the management specialist’s reports related to the settlement transaction for accuracy and reasonableness.
/s/
We have served as the Company’s auditor since 2014.
March 1, 2022
MAUI LAND & PINEAPPLE COMPANY, INC. & SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
| December 31, | ||||||||
| 2021 | 2020 | |||||||
| (in thousands except share data) | ||||||||
| ASSETS | ||||||||
| CURRENT ASSETS | ||||||||
| Cash | $ | $ | ||||||
| Accounts receivable, net | ||||||||
| Prepaid expenses and other assets | ||||||||
| Assets held for sale | ||||||||
| Total Current Assets | ||||||||
| PROPERTY & EQUIPMENT | ||||||||
| Land | ||||||||
| Land improvements | ||||||||
| Buildings | ||||||||
| Machinery and equipment | ||||||||
| Total Property & Equipment | ||||||||
| Less accumulated depreciation | ( | ) | ( | ) | ||||
| Property, net | ||||||||
| OTHER ASSETS | ||||||||
| Deferred development costs | ||||||||
| Other noncurrent assets | ||||||||
| Total Other Assets | ||||||||
| TOTAL ASSETS | $ | $ | ||||||
| LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||||
| CURRENT LIABILITIES | ||||||||
| Accounts payable | $ | $ | ||||||
| Payroll and employee benefits | ||||||||
| Long-term debt, current portion | ||||||||
| Accrued retirement benefits, current portion | ||||||||
| Deferred revenue, current portion | ||||||||
| Other current liabilities | ||||||||
| Total Current Liabilities | ||||||||
| LONG-TERM LIABILITIES | ||||||||
| Accrued retirement benefits | ||||||||
| Deferred revenue | ||||||||
| Deposits | ||||||||
| Other noncurrent liabilities | ||||||||
| Total Long-Term Liabilities | ||||||||
| TOTAL LIABILITIES | ||||||||
| COMMITMENTS & CONTINGENCIES | ||||||||
| STOCKHOLDERS’ EQUITY | ||||||||
| Common stock-- par value, shares authorized; and shares issued and outstanding at December 31, 2021 and 2020, 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 INCOME (LOSS)
| Years Ended December 31, | ||||||||
| 2021 | 2020 | |||||||
| (in thousands except per | ||||||||
| share amounts) | ||||||||
| OPERATING REVENUES | ||||||||
| Real estate | $ | $ | ||||||
| Leasing | ||||||||
| Resort amenities and other | ||||||||
| Total Operating Revenues | ||||||||
| OPERATING COSTS AND EXPENSES | ||||||||
| Real estate | ||||||||
| Leasing | ||||||||
| Resort amenities and other | ||||||||
| General and administrative | ||||||||
| Share-based compensation | ||||||||
| Depreciation | ||||||||
| Total Operating Costs and Expenses | ||||||||
| OPERATING INCOME (LOSS) | ( | ) | ||||||
| Other income | ||||||||
| Pension and other post-retirement expenses | ( | ) | ( | ) | ||||
| Interest expense | ( | ) | ( | ) | ||||
| LOSS FROM CONTINUING OPERATIONS | ( | ) | ( | ) | ||||
| Loss from discontinued operations, net of income taxes of $ | ( | ) | ( | ) | ||||
| NET LOSS | ( | ) | ( | ) | ||||
| Pension, net of income taxes of $ | ( | ) | ||||||
| TOTAL COMPREHENSIVE INCOME (LOSS) | $ | $ | ( | ) | ||||
| LOSS PER COMMON SHARE--BASIC AND DILUTED | ||||||||
| Continuing Operations | $ | ( | ) | $ | ( | ) | ||
| Discontinued Operations | $ | ( | ) | $ | ( | ) | ||
| Net Loss | $ | ( | ) | $ | ( | ) | ||
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, 2021 and 2020
(in thousands)
| Accumulated |
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| Additional |
Other |
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| Common Stock |
Paid in |
Accumulated |
Comprehensive |
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| Shares |
Amount |
Capital |
Deficit |
Loss |
Total |
|||||||||||||||||||
| Balance, January 1, 2020 |
$ | $ | $ | ( |
) |
$ | ( |
) |
$ | |||||||||||||||
| Share-based compensation expense |
||||||||||||||||||||||||
| Issuance of shares for incentive plan |
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| Vested restricted stock issued |
( |
) |
||||||||||||||||||||||
| Shares canceled to pay tax liability |
( |
) |
( |
) |
( |
) |
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| Other comprehensive loss-pension |
( |
) |
( |
) |
||||||||||||||||||||
| Net loss |
( |
) |
( |
) |
||||||||||||||||||||
| Balance, December 31, 2020 |
$ | $ | $ | ( |
) |
$ | ( |
) |
$ | |||||||||||||||
| Share-based compensation expense |
||||||||||||||||||||||||
| Issuance of shares for incentive plan |
||||||||||||||||||||||||
| Vested restricted stock issued |
( |
) |
||||||||||||||||||||||
| Shares canceled to pay tax liability |
( |
) |
( |
) |
( |
) |
||||||||||||||||||
| Other comprehensive income-pension |
||||||||||||||||||||||||
| Net loss |
( |
) |
( |
) |
||||||||||||||||||||
| Balance, December 31, 2021 |
$ | $ | $ | ( |
) |
$ | ( |
) |
$ | |||||||||||||||
See Notes to Consolidated Financial Statements
MAUI LAND & PINEAPPLE COMPANY, INC. & SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
| Years Ended December 31, |
||||||||
| 2021 |
2020 |
|||||||
| (in thousands) |
||||||||
| CASH FLOWS FROM OPERATING ACTIVITIES |
||||||||
| Cash receipts from customers and other receipts |
$ | $ | ||||||
| Cash paid to vendors |
( |
) |
( |
) |
||||
| Cash paid for payroll and taxes |
( |
) |
( |
) |
||||
| Cash paid for interest |
( |
) |
( |
) |
||||
| NET CASH PROVIDED BY OPERATING ACTIVITIES |
||||||||
| CASH FLOWS FROM INVESTING ACTIVITIES |
||||||||
| Purchases of property |
( |
) |
( |
) |
||||
| Proceeds from sale of property and equipment |
||||||||
| Payments for other assets |
( |
) |
( |
) |
||||
| NET CASH PROVIDED BY (USED IN) INVESTING ACTIVITIES |
( |
) |
||||||
| CASH FLOWS FROM FINANCING ACTIVITIES |
||||||||
| Proceeds from long-term debt |
||||||||
| Payments of long-term debt |
( |
) |
( |
) |
||||
| Debt and common stock issuance costs and other |
( |
) |
( |
) |
||||
| NET CASH USED IN FINANCING ACTIVITIES |
( |
) |
( |
) |
||||
| NET INCREASE IN CASH |
||||||||
| CASH AT BEGINNING OF YEAR |
||||||||
| CASH AT END OF YEAR |
$ | $ | ||||||
| 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 |
||||||||
| Bad debt provision |
||||||||
| Share-based compensation |
||||||||
| Impairment charges |
||||||||
| Loss on disposal of property |
||||||||
| Cost of real estate sales |
||||||||
| Changes in operating assets and liabilities: |
||||||||
| Accounts receivable |
( |
) |
||||||
| Retirement liabilities |
||||||||
| Accounts payable |
( |
) |
( |
) |
||||
| 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 $ |
See Notes to Consolidated Financial Statements.
MAUI LAND & PINEAPPLE COMPANY, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
For the Years Ended December 31, 2021 and 2020
| 1. | DESCRIPTION OF BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES |
DESCRIPTION OF BUSINESS
Maui Land & Pineapple Company, Inc. is a Hawaii corporation consisting of a landholding and operating parent company, its principal subsidiary, Kapalua Land Company, Ltd., and certain other subsidiaries (collectively, the “Company”). The Company owns approximately
• Real Estate operations consist of land planning and entitlement, development, and sales activities. This segment also included the operations of Kapalua Realty Company, Ltd., a general brokerage real estate company located in the Kapalua Resort through August 2020.
• Leasing operations include commercial, agricultural, and industrial land and property leases, licensing of our registered trademarks and trade names, and management of potable and non-potable water delivery systems in West and Upcountry Maui, including stewardship and conservation efforts.
• Resort Amenities include the management of operations of the Kapalua Club, a private, non-equity club membership program providing 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 (“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.
COMPREHENSIVE INCOME (LOSS)
Comprehensive income (loss) includes all changes in stockholders’ equity, except those resulting from capital stock transactions. Comprehensive income (loss) include adjustments to the Company’s defined benefit pension plan obligations.
ACCOUNTS RECEIVABLE AND ALLOWANCE FOR DOUBTFUL ACCOUNTS
Receivables are recorded net of an allowance for doubtful accounts. The Company estimates future write-offs based on delinquencies, credit ratings, aging trends, and historical experience. The Company believes the allowance for doubtful accounts 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.
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. Impairment losses of $
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 impairments of deferred development costs in 2021 or 2020.
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 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.
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 under-funded status of the Company’s defined benefit pension plan is recorded as a liability in the consolidated balance sheet and changes in the funded status of the plan is recorded in the year in which the changes occur, through comprehensive income. A pension asset or liability is recognized for the difference between the fair value of plan assets and the projected benefit obligation as of year-end.
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 10 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 (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 real estate segment consist of sales of real estate and commission income from providing brokerage services. 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. Commission income is recognized upon settlement of a real estate transaction.
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).
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.
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.
Other revenues included in discontinued operations are recognized when delivery has occurred or services have been rendered, the sales price is fixed or determinable, and collectability is reasonably assured. Revenue from discontinued operations include services provided by the Kapalua Water Company, Ltd. and Kapalua Waste Treatment Company, Ltd. previously reflected in a Utilities segment in prior periods.
The Company estimates 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 11 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
Real estate, leasing, resort amenities, and general and administrative costs and expenses are reflected exclusive of depreciation and pension and other post-retirement expenses.
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 (Note 8).
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 loss and such amounts are included in income taxes payable on the Company’s consolidated balance sheets.
SHARE-BASED COMPENSATION PLANS
The Company accounts for share-based compensation, including grants of shares of common stock, as compensation expense over the service period (generally the vesting period) in the consolidated financial statements based on their fair values. The impact of forfeitures that may occur prior to vesting is estimated and considered in the amount recognized.
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. The Company had deposits in excess of the FDIC limit at December 31, 2021 and 2020. No losses have been accrued to date.
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 Hawaii 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 Hawaii in general as a vacation destination or second-home market; increased energy costs, including fuel costs, which affect tourism on Maui and Hawaii 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 Hawaii generally; increased competition from other luxury real estate developers on Maui and in Hawaii 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; the spread of contagious diseases, such as the Coronavirus; 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 12 to the consolidated financial statements for further information regarding the Company’s legal proceedings.
NEW ACCOUNTING STANDARDS ADOPTED
In December 2019, the FASB issued ASU 2019-12 to simplify the accounting in ASC Topic 740, Income Taxes. This guidance removes certain exceptions related to the approach for intraperiod tax allocation, the methodology for calculating income taxes in an interim period, and the recognition of deferred tax liabilities for outside basis differences. The guidance also clarifies and simplifies other areas of ASC Topic 740. This ASU became effective in the first quarter of 2021. Certain adjustments in this update must be applied on a prospective basis, certain amendments must be applied on a retrospective basis, and certain amendments must be applied on a modified retrospective basis through a cumulative-effect adjustment to retained earnings/(accumulated deficit) in the period of adoption. The ASU did not have a significant impact on the Company’s consolidated financial statements and related disclosures.
In March 2020, the FASB issued ASU 2020-04 as an update to provide optional guidance to ease the potential burden in accounting for (or recognizing the effects of) reference rate reform (ASC Topic 848) on financial reporting. The amendments in the ASU are elective and apply to all entities, subject to meeting certain criteria, that have contracts, hedging relationships, and other transactions that reference LIBOR or another reference rate expected to be discontinued because of reference rate reform. The ASU provides optional expedients and exceptions for applying GAAP to contracts, hedging relationships, and other transactions affected by reference rate reform if certain criteria are met. The ASU is effective through December 31, 2022. In December 2021, the Company’s revolving line of credit facility was amended to discontinue the use of LIBOR as a referenced rate in determining interest due on outstanding borrowings. The Company has determined there is no impact on the Company’s consolidated financial statements or related disclosures.
ACCOUNTING STANDARDS NOT YET ADOPTED
In June 2016, the FASB issued ASU 2016-13 to update the methodology used to measure current expected credit losses (“CECL”). This ASU apples to financial assets measured at amortized cost, including loans, held-to-maturity debt securities, net investments in leases, and trade accounts receivable as well as certain off-balance sheet exposures, such as loan commitments. This ASU requires consideration of a broader range of reasonable and supportable information to explain credit loss estimates. The guidance must be adopted using a modified retrospective transition method through a cumulative-effect adjustment to retained earnings/(deficit) in the period of adoption. ASU 2019-10 was subsequently issued delaying the effective date to the first quarter of 2023. The Company is in the process of assessing the impact of the ASU on its consolidated financial statements and related disclosures.
In November 2021, the FASB issued ASU 2021-10 as an update of ASC Topic 832 to increase the transparency of government assistance received by a business entity, including disclosure of the types of transactions, the accounting for those transactions, and the effect of those transactions on its financial statements. The ASU is effective for annual periods beginning after December 15, 2021. The Company is currently evaluating the impact of the ASU on its consolidated financial statements and related disclosures.
LOSS PER COMMON SHARE
Basic net loss per common share is computed by dividing net loss by the weighted-average number of common shares outstanding. Diluted net loss per common share is computed similar to basic net loss per common share except that the denominator is increased to include the number of additional common shares that would have been outstanding if the dilutive potential common shares from share-based compensation arrangements had been issued. Basic and diluted weighted-average common shares outstanding were
| 2. | ASSETS HELD FOR SALE |
At December 31, 2021 and 2020 assets held for sale consisted of the following:
| 2021 | 2020 | |||||||
| (in thousands) | ||||||||
| Kapalua Resort, - acre Kapalua Central Resort project | $ | $ | ||||||
| Upcountry Maui, -acre parcel of agricultural land | ||||||||
| Kapalua Resort, Kapalua Water Company, Ltd. and Kapalua Waste Treatment Company, Ltd. assets | ||||||||
| $ | $ | |||||||
None of the above assets held for sale have been pledged as collateral under the Company’s credit facility.
In December 2021, the Company entered into an agreement to sell the Kapalua Central Resort project for $
In February 2022, the Company entered into an agreement to sell the
The Company received net proceeds of approximately $
| 3. | PROPERTY & EQUIPMENT |
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. The majority of the Company’s land improvements were constructed and placed in service in the mid-to-late 1970’s 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. The majority of the buildings were constructed and placed in service in the mid-to-late 1970’s. 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.
| 4. | LONG-TERM DEBT |
Long-term debt is comprised of amounts outstanding under the Company’s $
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 is in compliance with the covenants under the Credit Facility as of December 31, 2021.
| 5. | 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 agreement. There are no leases allowing a lessee an option to purchase the underlying asset. Total leasing income subject to ASC 842 for the years ended December 31, 2021 and 2020 were as follows:
| 2021 | 2020 | |||||||
| (in thousands) | ||||||||
| Minimum rentals | $ | $ | ||||||
| Percentage rentals | ||||||||
| Licensing fees | ||||||||
| Other | ||||||||
| $ | $ | |||||||
Leased property, net of accumulated depreciation, was $
Future minimum rental income for the next five years and thereafter are as follows (in thousands):
| Years ending December 31, | ||||
| 2022 | $ | |||
| 2023 | $ | |||
| 2024 | $ | |||
| 2025 | $ | |||
| 2026 | $ | |||
| Thereafter | $ |
| 6. | ACCRUED RETIREMENT BENEFITS |
Accrued retirement benefits at December 31, 2021 and 2020 consisted of the following:
| 2021 | 2020 | |||||||
| (in thousands) | ||||||||
| Defined benefit pension plan | $ | $ | ||||||
| Non-qualified retirement plan | ||||||||
| Total | ||||||||
| Less current portion | ( | ) | ( | ) | ||||
| Non-current portion of accrued retirement benefits | $ | $ | ||||||
The Company had two defined benefit pension plans which covered substantially all of its former bargaining and non-bargaining full-time, part-time and intermittent employees. In 2011, pension benefits under both plans were frozen. The Company merged the two defined benefit pension plans to streamline the administration of the frozen plan in 2018. The Company also has an unfunded non-qualified retirement plan covering nine of its former employees. The non-qualified retirement plan was frozen in 2009 and future vesting of additional benefits was discontinued.
In November 2021, the Company signed a purchase agreement with an insurer to annuitize the scheduled pension payments of
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 2021 and 2020, and the funded status of the plan and assumptions used to determine benefit information at December 31, 2021 and 2020 were as follows:
| 2021 | 2020 | |||||||||||
| (in thousands) | ||||||||||||
| Change in benefit obligations: | ||||||||||||
| Benefit obligations at beginning of year | $ | $ | ||||||||||
| Interest cost | ||||||||||||
| Actuarial (gain) loss | ( | ) | ||||||||||
| 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 | ||||||||||||
| 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 | ||||||||||||
| Rate of compensation increase | n/a | n/a | ||||||||||
Accumulated other comprehensive loss of $
Components of net periodic benefit cost and other amounts recognized in comprehensive income were as follows:
| 2021 | 2020 | |||||||
| (in thousands) | ||||||||
| Pension and other benefits: | ||||||||
| Interest cost | $ | $ | ||||||
| Expected return on plan assets | ( | ) | ( | ) | ||||
| Recognized net actuarial loss | ||||||||
| Settlement expense | ||||||||
| Pension expense | $ | $ | ||||||
| Other changes in plan assets and benefit obligations recognized in comprehensive income: | ||||||||
| Net loss (gain) | $ | ( | ) | $ | ||||
| Amortization of recognized loss | ( | ) | ( | ) | ||||
| Total recognized (gain) loss in comprehensive income | $ | ( | ) | $ | ||||
| Weighted average assumptions used to determine net periodic benefit cost: | 2021 | 2020 | ||||||||||
| Discount rate | - | - | ||||||||||
| Expected long-term return on plan assets | ||||||||||||
| 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.
At December 31, 2021 and 2020, the plan held shares of various Aon Collective Investment Trust (“ACIT”) funds. The fair value of the Company’s pension plan assets by category were as follows:
| 2021 Fair Value Measurements (in thousands) | ||||||||||||||||
| Quoted Prices in Active Markets for Identical Assets (Level 1) | Significant Other Observable Inputs (Level 2) | Measured at NAV as a practical expedient | Total | |||||||||||||
| ACIT equity funds | $ | $ | $ | |||||||||||||
| ACIT fixed income funds | ||||||||||||||||
| Cash management funds | ||||||||||||||||
| $ | $ | $ | ||||||||||||||
| 2020 Fair Value Measurements (in thousands) | ||||||||||||||||
| Quoted Prices in Active Markets for Identical Assets (Level 1) | Significant Other Observable Inputs (Level 2) | Measured at NAV as a practical expedient | Total | |||||||||||||
| ACIT equity funds | $ | $ | $ | |||||||||||||
| ACIT fixed income funds | ||||||||||||||||
| Cash management funds | ||||||||||||||||
| $ | $ | $ | ||||||||||||||
Net asset values (“NAV”) of ACIT and AGHT funds included in Level 1 and Level 2 are readily determinable, measured daily and based on the fair value of each fund’s underlying investments. 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).
Other investments determine NAV on a monthly or quarterly basis and/or have redemption restrictions. NAVs are based on the fair value of each fund’s underlying investments. For these investments, NAV is used as a practical expedient to estimate fair value and are not categorized in the fair value hierarchy. Redemptions may be requested at the fund’s NAV under the notification requirements of each fund.
An administrative committee consisting of certain senior management employees administers the Company’s defined benefit pension 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 plan.
Estimated future benefit payments are as follows (in thousands):
| Years ending December 31, | |||||
| 2022 | $ | ||||
| 2023 | $ | ||||
| 2024 | $ | ||||
| 2025 | $ | ||||
| 2026 | $ | ||||
| 2027 - 2031 | $ | ||||
The Company made a minimum required contribution of $
| 7. | 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 (Equity Plan). 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 vest quarterly and 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.
Share-based compensation is determined and awarded annually to certain of the Company’s officers and management based on their achievement of certain predefined performance goals and objectives under the Equity Plan. Such share-based compensation is comprised of an annual incentive paid in shares of common stock and a long-term incentive paid in restricted shares vesting quarterly over a period of years.
Share-based compensation totaled $
| 8. | 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 benefit and the amount computed using the statutory federal rate of
| 2021 | 2020 | |||||||
| (in thousands) | ||||||||
| Federal income tax benefit at statutory rate | $ | ( | ) | $ | ( | ) | ||
| Adjusted for: | ||||||||
| Permanent differences and other | ||||||||
| Valuation allowance | ||||||||
| Income tax expense | $ | $ | ||||||
Deferred tax assets were comprised of the following temporary differences as of December 31, 2021 and 2020:
| 2021 | 2020 | |||||||
| (in thousands) | ||||||||
| Net operating loss and tax credit carryforwards | $ | $ | ||||||
| Joint venture and other investments | ( | ) | ( | ) | ||||
| Accrued retirement benefits | ||||||||
| Property net book value | ||||||||
| Deferred revenue | ||||||||
| Reserves and other | ( | ) | ||||||
| Total deferred tax assets | ||||||||
| Valuation allowance | ( | ) | ( | ) | ||||
| Net deferred tax assets | $ | $ | ||||||
Valuation allowances have been established to reduce future tax benefits not expected to be realized. The change in the deferred tax asset related to accrued retirement benefits and the valuation allowance includes the pension adjustment included in accumulated other comprehensive loss, which is not included in the current provision. Net Operating Loss (NOL) carryforwards created in tax years beginning after December 31, 2017 are limited by the TCJA. The Company had approximately $
| 9. | DISCONTINUED OPERATIONS |
In December 2019, the Company entered into an Asset Purchase Agreement to sell the Public Utilities Commission (“PUC”) regulated assets of Kapalua Water Company, Ltd. and Kapalua Waste Treatment Company, Ltd. located in the Kapalua Resort, subject to certain closing conditions, including PUC approval.
In March 2021, the sale was approved by the PUC subject to certain closing conditions of its Decision and Order. The Company received net proceeds of approximately $
The results related to the operation of these assets have been reported as discontinued operations in 2021 and 2020 as follows:
| 2021 | 2020 | |||||||
| (in thousands) | ||||||||
| Operating revenues | $ | $ | ||||||
| Operating costs and expenses | ( | ) | ( | ) | ||||
| Impairment loss | ( | ) | ( | ) | ||||
| Loss from discontinued operations | $ | ( | ) | $ | ( | ) | ||
| 10. | SEGMENT INFORMATION |
The Company’s reportable operating segments are comprised of the discrete business units whose operating results are regularly reviewed by the Company’s Chief Executive Officer – its chief decision maker – in assessing performance and determining the allocation of resources. Reportable operating segments in 2021 are as follows:
| • | Real Estate includes the development and sale of real estate inventory. The segment also includes operations of Kapalua Realty Company, Ltd., a general brokerage real estate company located within the Kapalua Resort through August 2020. |
| • | 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 are measured based on operating income (loss), exclusive of interest, depreciation, general and administrative, share-based compensation, pension and other postretirement expenses.
Condensed consolidated financial information for each of the Company’s reportable segments for the years ended December 31, 2021 and 2020 (in thousands) were as follows:
| Real | Resort | |||||||||||||||||||
| Estate | Leasing | Amenities | Other | Consolidated | ||||||||||||||||
| 2021 | ||||||||||||||||||||
| Operating revenues (1) | $ | $ | $ | $ | - | $ | ||||||||||||||
| Operating costs and expenses | ( | ) | ( | ) | ( | ) | - | ( | ) | |||||||||||
| Depreciation expense | - | ( | ) | - | ( | ) | ( | ) | ||||||||||||
| General and administrative expenses | ( | ) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||
| Operating income (loss) | ( | ) | ( | ) | ||||||||||||||||
| Pension and other post-retirement expenses | ( | ) | ||||||||||||||||||
| Interest expense | ( | ) | ||||||||||||||||||
| Other income | ||||||||||||||||||||
| Loss from continuing operations | $ | ( | ) | |||||||||||||||||
| Capital expenditures (3) | $ | $ | $ | $ | $ | |||||||||||||||
| Assets (4) | $ | $ | $ | $ | $ | |||||||||||||||
| Real | Resort | |||||||||||||||||||
| Estate | Leasing | Amenities | Other (2) | Consolidated | ||||||||||||||||
| 2020 | ||||||||||||||||||||
| Operating revenues (1) | $ | $ | $ | $ | - | $ | ||||||||||||||
| Operating costs and expenses | ( | ) | ( | ) | ( | ) | - | ( | ) | |||||||||||
| Depreciation expense | - | ( | ) | - | ( | ) | ( | ) | ||||||||||||
| General and administrative expenses | ( | ) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||
| Operating income (loss) | ( | ) | ( | ) | ( | ) | ( | ) | ||||||||||||
| Pension and other post-retirement expenses | ( | ) | ||||||||||||||||||
| Interest expense | ( | ) | ||||||||||||||||||
| Other income |
| |||||||||||||||||||
| Loss from continuing operations | $ | ( | ) | |||||||||||||||||
| Capital expenditures (3) | $ | $ | $ | $ | $ | |||||||||||||||
| Assets (4) | $ | $ | $ | $ | $ | |||||||||||||||
| (1) | Amounts are principally revenues from external customers and exclude equity in earnings of affiliates. |
| (2) | Includes assets related to discontinued operations of $ |
| (3) | Includes expenditures for property and deferred costs. |
| (4) | Segment assets are located in the United States. |
| 11. | RESERVES |
Allowance for doubtful accounts for 2021 and 2020 were as follows:
| Description | Balance at Beginning of Year | Increase (Decrease) | Balance at End of Year | |||||||||
| (in thousands) | ||||||||||||
| Allowance for Doubtful Accounts | ||||||||||||
| 2021 | $ | $ | ( | ) | $ | |||||||
| 2020 | $ | $ | $ | |||||||||
| 12. | COMMITMENTS AND CONTINGENCIES |
On December 31, 2018, the State of Hawaii Department of Health (“DOH”) issued a Notice and Finding of Violation and Order (“Order”) for alleged wastewater effluent violations related to the Company’s Upcountry Maui wastewater treatment facility. The facility was built in the 1960’s to serve approximately 200 single-family homes developed for workers in the Company’s 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 without a hearing date while the Company continues working on a previously approved corrective action plan to resolve and remediate the facility’s wastewater effluent issues. The construction of additional leach fields was completed as of December 31, 2020. Additionally, the installation of a surface aerator, sludge removal system, and natural pond cover using water plants was completed in 2021. Continued testing of wastewater effluent consistently returns results within the allowable ranges. No hearing date has been set as discussions with the DOH are still ongoing to address any other matters regarding the Order. At December 31, 2021, approximately $
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 nematocide, commonly known as DBCP, exceeds specified levels, and for the ongoing maintenance and operating cost for filtration systems on existing and future wells. In 2021, the Company paid approximately $
In addition, from time to time, the Company is the subject of various other claims, complaints and other legal actions which arise in the normal course of the Company’s business activities. 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.
| 13. | 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 all cash on hand to be unrestricted cash for the 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. The fair value of debt was estimated based on borrowing rates currently available to the Company for debt with similar terms and maturities. The carrying amount of debt at December 31, 2020 was $
| 14. | 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 $
| CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE |
None.
| 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, 2021. 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, 2021, 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 of Directors, 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, 2021. 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, 2021, 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.
CHANGES IN INTERNAL CONTROLS OVER FINANCIAL REPORTING
There has been no change in our internal controls over financial reporting (as such term is defined in Exchange Act Rule 13a-15(f) or 15d-15(f)) during the fiscal fourth quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal controls over financial reporting.
| OTHER INFORMATION |
None.
| DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
Incorporated herein by reference from the Company’s definitive proxy statement, which will be filed no later than 120 days after the close of our fiscal year ended December 31, 2021.
| EXECUTIVE COMPENSATION |
The information set forth under “Executive Compensation,” and “Director Compensation” in the Maui Land & Pineapple Company, Inc. Proxy Statement, to be filed no later than 120 days after the close of our fiscal year ended December 31, 2021, is incorporated herein by reference.
| SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS |
The information set forth under “Security Ownership of Certain Beneficial Owners and Management” in the Maui Land & Pineapple Company, Inc. Proxy Statement, to be filed no later than 120 days after the close of our fiscal year ended December 31, 2021, is incorporated herein by reference.
| CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
The information set forth under “Review, Approval, or Ratification of Transactions with Related Persons” and “Director Independence” in the Maui Land & Pineapple Company, Inc. Proxy Statement, to be filed no later than 120 days after the close of our fiscal year ended December 31, 2021, is incorporated herein by reference.
| PRINCIPAL ACCOUNTANT FEES AND SERVICES |
Information set forth under “Independent Registered Public Accounting Firm” in the Maui Land & Pineapple Company, Inc. Proxy Statement, to be filed no later than 120 days after the close of our fiscal year ended December 31, 2021, is incorporated herein by reference.
| 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:
| (a)3. |
Exhibits |
| Incorporated by Reference |
|||||||
| Exhibit Number |
Exhibit Description |
Form |
File No. |
Exhibit |
Filing Date |
Filed Herewith |
|
| 3.1 |
10-Q |
001-06510 |
3.1 |
8/4/2010 |
|||
| 3.2 |
10-K |
001-06510 |
3.2 |
3/2/2012 |
|||
| 4.1 |
10-Q |
001-06510 |
10.4 |
3/3/2020 |
|||
| 10.1# |
Maui Land & Pineapple Company, Inc. Executive Severance Plan |
10-Q |
001-06510 |
10.1 |
4/28/2017 |
||
| 10.2# |
DEF 14A |
001-06510 |
Appendix A |
3/28/2017 |
|||
| 10.3 |
Loan Agreement, by and between the Company and First Hawaiian Bank, dated June 6, 2016 |
8-K |
001-06510 |
10.1 |
6/11/2014 |
||
| 10.4 |
Credit Agreement, by and between the Company and First Hawaiian Bank, dated August 5, 2016 |
10-Q |
001-06510 |
10.1 |
8/11/2016 |
||
| 10.5 |
10-K |
001-06510 |
10.25 |
3/03/2020 |
|||
| 10.6 |
Fourth Loan Modification Agreement, by and between the Company, dated December 23, 2021 |
X |
|||||
| 10.7 |
10-K |
001-06510 |
10.30 |
3/03/2020 |
|||
| 10.8 |
X |
||||||
| 10.9 |
X |
||||||
| 10.10# |
Offer Letter from the Company to Wade K. Kodama (Chief Financial Officer) dated September 23, 2021 |
X |
|||||
| 21.1 |
X |
||||||
| 23.1* |
Consent of Accuity LLP, Independent Registered Public Accounting Firm, dated March 1, 2022 |
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 |
||||||
| 101.INS |
Inline XBRL Instance Document |
X |
|||||
| 101.SCH |
Inline XBRL Taxonomy Extension Schema Document |
X |
|||||
| 101.CAL |
Inline XBRL Taxonomy Extension Calculation document |
X |
|||||
| 101.DEF |
Inline XBRL Taxonomy Extension Definition Linkbase |
X |
|||||
| 101.LAB |
Inline XBRL 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. |
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 1, 2022.
| MAUI LAND & PINEAPPLE COMPANY, INC. |
||
| By: |
/s/ Warren H. Haruki |
|
| Warren H. Haruki |
||
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Warren H. Haruki 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/ Warren H. Haruki |
Date: March 1, 2022 |
|
| Warren H. Haruki, Chairman of the Board & |
|||
| Chief Executive Officer (Principal Executive Officer) |
|||
| By |
/s/ Stephen M. Case |
Date: March 1, 2022 |
|
| Stephen M. Case, Director |
|||
| By |
/s/ David A. Heenan |
Date: March 1, 2022 |
|
| David A. Heenan, Director |
|||
| By |
/s/ Anthony P. Takitani |
Date: March 1, 2022 |
|
| Anthony P. Takitani, Director |
|||
| By |
/s/ Arthur C. Tokin |
Date: March 1, 2022 |
|
| Arthur C. Tokin, Director |
|||
| By |
/s/ Wade K. Kodama |
Date: March 1, 2022 |
|
| Wade K. Kodama, Chief Financial Officer |
|||
| (Principal Financial Officer) |
|||
| By |
/s/ Scott N. Kodama |
Date: March 1, 2022 |
|
| Scott N. Kodama, Controller |
|||
| (Principal Accounting Officer) |
Exhibit 10.6
FOURTH LOAN MODIFICATION AGREEMENT
Recitals:
(1) MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii corporation, is called the “Borrower”.
(2) FIRST HAWAIIAN BANK, a Hawaii corporation, is called the “Lender”.
(3) 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 (as amended and restated, the “Amended and Restated Credit Agreement”). Capitalized terms that are not otherwise defined herein shall have the meanings given to them in the 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, in the principal amount of $27,000,000 (the “Original Note”).
(5) Pursuant to that certain Loan Modification Agreement dated December 30, 2016, by and between the Lender and the Borrower, among other things, the Revolving Loan Commitment was reduced to $10,000,000.
(6) Pursuant to that certain Second Loan Modification Agreement dated March 16, 2017, by and between the Lender and the Borrower, the Revolving Loan Commitment was increased from $10,000,000 to $15,000,000.
(7) Pursuant to that certain Third Loan Modification Agreement dated December 31, 2019, by and between the Lender and the Borrower, the Credit Facility was amended to change the extension option from two (2) consecutive options of one (1) year each to one (1) option of two (2) years to December 31, 2021.
(8) Pursuant to that certain extension letter dated December 31, 2019, from the Lender to the Borrower, the Maturity Date of the Credit Facility was extended to December 31, 2021.
(9) The Borrower has requested that the Credit Facility be amended (a) to further extend the Maturity Date of the Credit Facility for four (4) years to December 31, 2025, (b) to provide for the option to draw under the Credit Facility in the form of Revolving Borrowings or Term Loans, and (c) to release certain collateral from the Credit Facility, TMK Parcel No. (2) 4-3-001-006 and (2) 4-2-001-042, consisting of 800 acres of residential, golf course and open space zoned land in Kapalua Mauka (the “Kapalua Mauka Property”). The Lender is willing to accommodate the request under the terms and conditions of this Agreement.
(10) The parties also desire to amend the collateral for the Credit Facility in connection with the consolidation and resubdivision of one of the properties securing the Credit Facility.
(11) The parties to this Agreement agree that as of December 16, 2021, the outstanding principal balance due under the Note was $0.00.
Agreements:
NOW, THEREFORE, in consideration of the premises and intending to be legally bound, the parties do hereby agree as follows:
1. Second Amended and Restated Credit Agreement. To extend the Maturity Date of the Credit Facility, provide for the option to draw under the Credit Facility in the form of Revolving Borrowings or Term Loans and remove the Kapalua Mauka Property from the Collateral, the Lender and the Borrower shall execute and deliver a Second Amended and Restated Credit Agreement (the “Second Amended and Restated Credit Agreement”). The Second Amended and Restated Credit Agreement shall be in form and substance acceptable to the Lender.
2. Amended and Restated Note. To provide for the Note to cover both the Revolving Borrowings and Term Loans, the Borrower shall execute and deliver an Amended and Restated Note in the principal amount of $15,000,000 (the “Amended and Restated Note”). The Amended and Restated Note shall be in form and substance acceptable to the Lender.
3. Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents. The Lender and the Borrower shall execute and record a Second Amendment and Partial Release of Mortgage, Security Agreement and Fixture Filing and Partial Reassignment of Lessor’s Interest in Leases and Rents (the “Second Partial Release and Reassignment”) to amend 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 as Document No. A-62080398 (as amended, the “Mortgage”) to refer to the Second Amended and Restated Credit Agreement and the Amended and Restated Note, release the Kapalua Mauka Property, reassign the interest covered by the Assignment of Lessor’s Interest with respect to the Kapalua Mauka Property, and amend the description of the Land. The Second Partial Release and Reassignment shall be in form and substance 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 Second Partial Release and Reassignment, continues to be a lien of first priority against the real property encumbered by the Mortgage in the amount of $15,000,000.
4. Amendment of Security Agreement. The Security Agreement is hereby amended to delete any and all references to the Kapalua Mauka Property, including, without limitation, any and all Leases (as defined in the Security Agreement) for, and any and all fixtures located at, the Kapalua Mauka Property. Exhibit A of the Security Agreement is amended in its entirety as set forth in Exhibit 1 attached hereto and hereby made a part hereof.
5. UCC Financing Statement Amendments. The UCC Financing Statement recorded in the Bureau as Document No. A-60610337 and the UCC Financing Statement recorded in the Bureau as Document No. A-60610338 in connection with the Credit Facility shall be amended to conform the descriptions of the collateral to those contained in the Mortgage, as amended by the Second Partial Release and Reassignment, and the Security Agreement, as amended. The amendments to the UCC Financing Statements shall be in form and substance acceptable to the Lender.
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 release of the Kapalua Mauka Real Property and the amendment of the Land under the Mortgage, 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 Second 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 Second Amended and Restated Credit Agreement and the 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 __, 2021 (the “Effective Date”), when the following conditions have been satisfied:
(i) this Agreement, the Second Amended and Restated Credit Agreement, the Amended and Restated Note and the Second Partial Release and Reassignment 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 Second Partial Release and Reassignment and the UCC Financing Statement Amendments have been recorded with a commitment from the title insurer to issue the endorsement described in Section 3 above; 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 Second 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.
[The following page is the signature page.]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Loan Modification Agreement to be duly executed as of the Effective Date.
|
FIRST HAWAIIAN BANK |
|||
|
By: |
/s/ Charles C. Barbata | ||
|
Charles C. Barbata |
|||
|
Its Vice President |
|||
|
|
Lender | ||
|
MAUI LAND & PINEAPPLE COMPANY, INC. |
|||
|
By: |
/s/ Wade K. Kodama | ||
|
Wade K. Kodama |
|||
|
Its Chief Financial Officer |
|||
|
|
Borrower | ||
Exhibit 10.8
PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Escrow Instructions (“Agreement”) dated December 29, 2021 (the “Effective Date”) is between MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii corporation, as “Seller”, and EKN DEVELOPMENT GROUP LLC, a Nevada limited liability company, or permitted assignee, as “Buyer”.
1. 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.
2. BASIC TERMS.
2.1 PROPERTY. “Property” shall mean the following lots of the “Kapalua Makai Subdivision No. 1” located Kapalua, Maui, Hawaii:
|
Lot Number
|
Approximate Area |
|
2-A
|
11.156 acres |
|
2-B
|
0.726 acres |
|
2-C
|
19.701 acres |
|
2-D
|
8.783 acres |
|
2-E
|
1.836 acres |
|
2-F
|
3.472 acres |
together with all easements, rights of way and other rights, if any, appurtenant thereto and all improvements thereon, the interest of Seller as landlord or licensor under all leases and licenses regarding the aforementioned lots in effect on the Closing Date, if any, described in Schedule 2.1 (the “Leases”), including Seller’s rights to security deposits or prepaid rent related thereto (the “Security Deposits”), and all of Seller’s development rights and entitlements appurtenant to such real property, including without limitation, Seller’s existing Special Management Area and Project District approvals for the Property dated July 10, 2007 (the “SMA Permit”), and all other governmental agency approvals and entitlements, all plans, specifications, renderings, soils reports, environmental reports, traffic studies, and intangible property concerning the development and/or ownership of the real property. The foregoing Lots 2-B and 2-F are sometimes referred to herein as the “Road Lots”.
2.2 BUYER. “Buyer” shall mean FAHKRY LLC, a Wyoming limited liabilitycompany or its permitted assignee as provided in paragraph 14.1, whose address is 220 Newport Center Drive, Suite 11-262, Newport Beach, California 92660.
2.3 SELLER. “Seller” shall mean MAUI LAND & PINEAPPLE COMPANY, INC., a Hawaii corporation, whose address is 200 Village Road, Lahaina, Hawaii 96761.
2.4 PURCHASE PRICE. “Purchase Price” shall mean the sum of FORTY MILLION DOLLARS ($40,000,000.00).
|
Lot Number
|
Price |
|
2-A
|
$9,900,000.00 |
|
2-B
|
$900,000.00 |
|
2-C
|
$13,500,000.00 |
|
2-D
|
$9,900,000.00 |
|
2-E
|
$3,900,000.00 |
|
2-F
|
$1,900,000.00 |
|
Total
|
$40,000,000.00 |
2.5 TERMS OF PURCHASE.
(a) The Initial Deposit. An initial deposit of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) (the “Initial Deposit”) shall be delivered to Escrow Holder by Buyer within five (5) 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 Additional Deposit. Within two (2) business days after delivery of the Acceptance Notice set forth in paragraph 3.2(c), Buyer shall deliver to Escrow Holder an additional deposit of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00) (the “Additional Deposit”) (the Initial Deposit and Additional Deposit, upon delivery to Escrow Holder and including all interest earned thereon, each being a “Deposit” and collectively being the “Deposits”).
(c) Use of the Deposits. Immediately upon receipt of each Deposit, the Escrow Holder shall invest these funds in one or more federally-insured deposit accounts approved by Buyer. 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 Purchase Price.
(d) Deposit Refundability. Except as otherwise provided in this Agreement, if Buyer elects to proceed with the purchase of the Property at the expiration of the Due Diligence Period, the Deposits 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 as a result of the failure of a condition precedent to Closing as set forth in Sections 3 or 6, the Initial Deposit, including all interest accrued thereon, shall be refundable to Buyer.
(e) Cash at Closing. The Purchase 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.
2.6 EFFECTIVE DATE. The effective date (“Effective Date”) of this Agreement shall be the date Seller and Buyer execute this Agreement.
2.7 TITLE APPROVAL PERIOD. The “Title Approval Period” shall mean the period expiring sixty (60) days after the Effective Date.
2.8 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 one hundred twenty (120) days after the Effective Date (as it may be extended by this paragraph 2.8), for Buyer to determine whether Buyer may feasibly acquire and develop the Property as provided in paragraph 3.2. Buyer shall have the one-time right to extend the Due Diligence Period in its sole discretion for an additional thirty (30) days by giving Seller written notice of such extension no less than fifteen (15) days before the expiration of the Due Diligence Period prior to the aforesaid extension.
2.9 CLOSING DATE. The “Closing Date” shall be the date that is thirty (30) business days after the last day of the Due Diligence Period but, in any event, no later than March 31, 2022.
2.10 ESCROW HOLDER. The “Escrow Holder” shall mean Title Guaranty Escrow Services, Inc., whose address is 235 Queen Street, Honolulu, HI 96813, Escrow Officer: Jeremy Trueblood (phone: (808) 521-0208; fax: (808) 521-0280; e-mail: jtrueblood@tghawaii.com).
2.11 TITLE COMPANY. The “Title Company” shall mean Title Guaranty of Hawaii, LLC, whose address is 235 Queen Street, Honolulu, HI 96813, Title Officer: ________________ (phone: ___________; fax: ___________; e-mail: _____________).
2.12 TITLE POLICY. The “Title Policy” shall mean an ALTA Extended 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 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 agreed to by Buyer (“Permitted Exceptions”).
2.13 BROKERS. There are no brokers involved in this transaction.
3. 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 Section 3 below (which are for Buyer’s benefit) within the time periods specified.
3.1 TITLE CONDITION.
(a) Within five (5) calendar days after the Effective Date, Seller shall deliver to Buyer a current preliminary report for the Property (the “Preliminary Report”). During the Title Approval Period, Buyer may at Buyer’s expense secure a survey of the Property prepared in accordance with the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys (the “Survey”). On or before the expiration of the Title Approval Period, Buyer shall order and have received a Title Commitment from the Title Company wherein the Title Company commits to issue the Title Policy upon the satisfaction and deletion of all requirements listed therein with no transfer of any such requirements to Schedule B and the payment of the premium therefor (the “Title Commitment”). No later than the last day of the Title Approval Period, Buyer may disapprove of any of the matters reflected in the Title Commitment or the Survey by delivering written notice to Seller and Escrow Holder (the “Notice of Defect”) specifying each matter shown in the Title Commitment or Survey, if any, 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 Title Approval Period 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. Buyer acknowledges that all new real estate developments at Kapalua are subjected to a covenant requiring payment to the Kapalua Resort Association of a 0.5% transfer fee on sales and resales of real estate. Buyer acknowledges that at Closing Seller shall reserve, for itself and for the benefit of the Kapalua Resort Association, an easement, in the form attached as Exhibit D, to use the Roadway Lots and the existing Kapalua Drive within the Property until such time as Buyer redevelops Kapalua Drive in accordance with its Development Plan as described below and dedicates them to the Kapalua Resort Association.
(b) Within five (5) days after receiving the Notice of Defect, Seller shall deliver to Buyer and Escrow Holder notice as to whether Seller will 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 Initial 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 Seller.
(e) Notwithstanding the foregoing, Seller shall be obligated to discharge any mortgages, 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.
3.2 FEASIBILITY CONDITION.
(a) Within five (5) days after the Effective Date, Seller shall deliver to Buyer all of the documents set forth on Exhibit A (the “Document Inventory”). Deliveries may be by electronic transmission or establishment of an online data room or file site. In addition, within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of Declaration of Covenants (the “Declaration of Covenants”) attached as Exhibit E, to be recorded prior to or at Closing by which the Property is allocated development rights under the West Maui Project District No. 1 (Kapalua) project district ordinance to the following: a maximum of 196 short-term rentable residential units; a maximum of 40,000 square feet of retail space; and a maximum of 20,000 square feet of administrative and/or common area space (collectively, the “Development Rights”). Within thirty (30) days of the Effective Date Seller shall deliver to Buyer the form of License Agreement described in Section 6.2.
(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 proposed improvements on the Property; (ii) the geological, soils and seismic conditions of the Property; (iii) all conditions and requirements imposed by governmental bodies having jurisdiction over the Property; and (iv) the viability of the Property for development or redevelopment.
(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 Initial 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), and the Deposit(s) shall become non-refundable except in the event of a Default by Seller.
3.3 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 prior to the expiration of the Due Diligence Period.
3.4 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.
3.5 PERFORMANCE OF COVENANTS. Seller shall have complied in all material respects with the terms and provisions of this Agreement.
3.6 NO BREACH OF REPRESENTATIONS OR WARRANTIES. There shall be no material breach of Seller’s representations and warranties set forth in paragraph 10.3 or in the Closing Certificate.
4. OPERATION OF PROPERTY AFTER DUE DILIGENCE PERIOD AND PRIOR TO CLOSING. Seller shall not encumber the Property after the Due Diligence Period without Buyer’s written consent, which consent may be withheld in Buyer’s reasonable discretion.
5. CONDITIONS PRECENDENT 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 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 10.3.
5.1.4 DEVELOPMENT PLAN. No later than thirty (30) days prior to the end of the Due Diligence Period, Buyer shall prepare and deliver to Seller Buyer’s conceptual development plan for the Property, which plan shall include a conceptual site plan showing the locations of roadways, buildings, and amenities (the “Development Plan”). The Development Plan shall be in accordance with the SMA Permit and include without limitation a permanent roadway connection within Lot 2-D of the Property between Office Road and Kapalua Drive to be built by Buyer and dedicated to the Kapalua Resort Association. Under the Declaration of Covenants Buyer shall agree to develop and use the Property substantially in accordance with Buyer’s Development Plan. If Buyer’s Development Plan is not satisfactory to Seller in its reasonable discretion Seller may terminate this Agreement by written notice to Buyer no later than the end of the Due Diligence Period.
5.2 SUBDIVISION APPROVAL. Prior to Closing, the County of Maui shall have issued final approval for the pending “Kapalua Makai Subdivision No. 1” by which the Property is subdivided into separate lots. Seller shall bear all costs of securing such final approval.
5.2.1 SUBDIVISION APPROVAL. Prior to Closing, the County of Maui shall have issued final approval for the pending “Kapalua Makai Subdivision No. 1” by which the Property is subdivided into separate lots. Seller shall bear all costs of securing such final approval.
5.2.2 NO BREACH OF REPRESENTATIONS OR WARRANTIES. There shall be no material breach of Buyer’s representations and warranties set forth in paragraph 10.3.
6. CLOSING.
6.1 THE CLOSING.
(a) Subject to satisfaction of all conditions precedent to Closing, the Closing and Close of Escrow shall occur on the Closing Date identified in Section 2.9.
(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 5:00 p.m. on the second business day immediately before the anticipated Close of Escrow, Seller shall deliver to Escrow Holder:
(a) The Declaration of Covenants, signed and acknowledged by Seller;
(b) A separate Limited Warranty Deed with Reservations and Covenants in a form attached as Exhibit B (the "Limited Warranty Deed") for each lot included in the Property, signed and acknowledged by Seller, conveying the Property to Buyer subject only to the Permitted Exceptions;
(c) Seller’s Closing Certificate in the form attached as Exhibit C (the “Closing Certificate”);
(d) A License Agreement in the form attached as Exhibit F by which Seller grants Buyer a non-exclusive, no-fee license to use the name “Kapalua” and any associated marks held by Seller (collectively the “Kapalua Marks”) in the sale of condominiums or other real property interest that Buyer develops at the Property. No other use of the Kapalua Marks shall be permitted unless and until a separate license agreement is executed.
(e) 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);
(f) Any additional funds and/or instruments (signed and acknowledged by Seller, if appropriate) as may be necessary to comply with this Agreement;
(g) 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 Due Diligence Period; and
(h) An assignment and assumption of the Leases in the form agreed upon prior to the expiration of the Due Diligence Period.
6.3 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:
(a) Cash equal to that amount provided for in paragraph 2.5(e). 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; and
(c) An executed counterpart of each Limited Warranty Deed.
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 Purchase 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 Due Diligence Period and shall pay for these endorsements and coverage, including the cost of any ALTA survey that Buyer secures during the Title Approval Period. The issuance of the endorsements and/or coverage shall not delay the Closing or extend the Title Approval 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 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.
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”). 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 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.
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 11.1 and 11.2 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 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.
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 3.4, 3.5 AND 3.6 ABOVE, 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 Initial Deposit shall be returned to Buyer. If Buyer elects to terminate this Agreement per this Section 7.6, Seller shall pay for Buyer’s actual Due Diligence costs, in an amount not to exceed $200,000.00.
8. GENERAL ESCROW PROVISIONS.
8.1 ESCROW INSTRUCTIONS. This Agreement when signed by Buyer and Seller shall also constitute Escrow Instruction to Escrow Holder.
8.2 OPENING OF ESCROW. Escrow Holder shall notify Buyer and Seller in writing of the date of receipt of this fully executed Agreement.
8.3 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.
8.4 PRORATIONS. All real property taxes, assessments, and maintenance charges for the Property shall be prorated between Buyer and Seller as of 12:01 a.m. on the Closing Date. All rents or license fees received in connection with the Leases shall be prorated between Buyer and Seller as of 12:01 a.m. on the Closing Date. Buyer shall receive a credit at Closing for the Security Deposits then held by Seller.
8.5 PAYMENT OF CLOSING COSTS. Seller and Buyer shall share equally the fees of Escrow Holder, the conveyance tax, and the recording fees. 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. 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.
8.6 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.
8.7 RECORDATION AND DELIVERY OF DOCUMENTS. When Buyer and Seller have satisfied their respective closing obligations under paragraphs 5.2 and 5.3 and each of the conditions under paragraphs 3 and 4 have either been satisfied or waived, Escrow Holder shall cause the Limited Warranty 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.
9. 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.
10. CONDITION OF PROPERTY/REPRESENTATION AND WARRANTIES.
10.1 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 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.
10.2 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.
10.3 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. 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, 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 10.3 as remade by the certificate of Seller to be delivered to Buyer at Closing shall survive Closing for a period of twelve (12) months.
The term “to Seller’s actual knowledge” shall mean the actual knowledge of Paul Subrata.
10.4 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 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 10.3 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.
10.5 EFFECT AND SURVIVAL. Seller and Buyer acknowledge that the compensation to be paid for the Property has been decreased to take 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.
10.6 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 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 Purchase 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.
10.7 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) 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 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.
11. DEVELOPMENT COVENANTS.
11.1 DEVELOPMENT APPROVALS. Buyer may take such actions as Buyer deems necessary or convenient to secure County approval for the transfer of the SMA Permit to Buyer, and such other development approvals, consents, permits and other entitlements necessary to develop the Property in accordance with the Development Plan approved by Seller (collectively, the “Development Permits”), provided that no such changes to the Development Permits shall take effect until after Buyer has waived its option to terminate this Agreement during the Due Diligence Period. Issuance of the Development Permits is not a condition of Closing. Buyer shall be solely responsible for satisfying itself during the Due Diligence Period as to its ability to secure the Development Permits, and as to the conditions and exactions to which Buyer’s proposed use of the Project may be subject. Seller will cooperate with Buyer in securing the Development Permits, at no cost to Seller other than incidental costs, and will execute, or join in the execution of, all applications, submittals and other documentation necessary to obtain the Development Permits, provided that in no event shall Seller be required to incur any liability. Upon County approval of the transfer of the SMA Permit to Buyer, Seller shall promptly execute and deliver an assignment of the SMA Permit.
11.2 DEVELOPMENT CONDITIONS. Seller shall have no obligation to satisfy any conditions of Buyer’s Development Permits.
11.3 SURVIVAL. This Section 11 shall survive Closing.
12. ENTRY ON PROPERTY.
12.1 LICENSE TO ENTER. Before beginning any tests or investigations which contemplate the drilling or disturbance of the surface of the Property, Buyer shall submit to Seller for its reasonable approval, Buyer’s operational plan for conducting the tests or investigations. Seller may have a representative present during any tests or investigations and Buyer shall provide Seller with prior notice of any tests or investigation. After any entry, 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, 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.
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 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 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 $1,000,000 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. 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 continue under 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 13, Buyer and Seller shall share equally all Escrow cancellation charges, Escrow Holder shall promptly return the Initial 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 assign its rights under this Agreement without the consent of Seller, but upon prior written notice to Seller, to an entity which is controlled by Buyer. Any other proposed assignment shall be subject to the consent of Seller, in its sole and absolute 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.
(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 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 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), 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.
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.
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. If for any reason Buyer fails to purchase the Property, except in the event of a Seller Default, 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, 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, together with a consent to the assignment of such Work Product and any information provided to Buyer by Seller. Following delivery, Seller may use this Work Product for any purpose.
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.
14.21 EXCLUSIVITY. Upon execution of this Agreement by Buyer, Seller shall stop and cause its employees, agents, representatives and affiliates to immediately stop, all negotiations with any third persons or entities other than Buyer with respect to any acquisition of the Property and will also refrain from and shall cause its employees, agents, representatives and affiliates to refrain from, directly or indirectly soliciting, discussing, negotiating, accepting or entering into any offer, agreement or arrangement with any third party other than Buyer until the end of the Due Diligence Period. This exclusivity provision can be terminated before the end of the Due Diligence Period only by written agreement between Buyer and Seller.
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 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. 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 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.
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. Seller may assign this Agreement to a qualified intermediary in order to facilitate the Code Section 1031 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. The obligations of Buyer under this paragraph shall survive the Closing and shall not be merged therein.
17. 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.
18. OPTION TO ACQUIRE WORKFORCE HOUSING CREDITS. .
18.1 OPTION. Subject to the terms, conditions and provisions herein set forth, Seller hereby grants to Buyer an option (the “Option”) to acquire up to twelve (12) residential workforce housing credits (each a “Credit”) issued or to be issued by the County of Maui to Seller pursuant to the Residential Workforce Housing Agreement for Pailolo Place dated March 21, 2018 (the “RWH Agreement”), on terms and conditions set forth in paragraphs 18.2 through 18.5.
18.2 DURATION OF OPTION. The option period will commence on the Closing Date and will continue through 5:00 p.m. on the second anniversary of the Closing Date (“Option Period”).
18.3 EXERCISE OF OPTION. Buyer may exercise the Option by giving written notice to Seller (“Option Notice”) prior to the end of the Option Period specifying the number of Credits Buyer elects to purchase. Buyer’s delivery of the Option Notice to Seller will create a binding contract for the purchase of the designated number of Credits pursuant to the terms and conditions set forth herein. After Buyer’s delivery of the Option Notice, any Credits not included in the Option Notice may no longer be purchased and shall no longer be subject to the Option.
18.4 OPTION PRICE AND PAYMENT. If Buyer exercises the Option, Buyer shall pay Seller One Hundred Thousand Dollars ($100,000) for each Credit that Buyer elects to purchase (the “Option Price”). The Option Price shall be paid to Seller concurrently with Seller’s delivery to Buyer of a written assignment, in form acceptable to the County, of the number of Credits that Buyer elects to purchase. At either party’s election, closing of the Option may be via an escrow with Title Guaranty Escrow Services Inc., the fees of which shall be paid by Buyer.
18.5 TERMS OF OPTION. Credits purchased by Buyer may be applied only to satisfy residential workforce housing requirements for development of the Property and shall not be transferred or applied to any other property or project. The Credits are subject to the terms of the RWH Agreement and Maui County Code Chapter 2.96.
20. 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.
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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| EKN DEVELOPMENT GROUP LLC | MAUI LAND & PINEAPPLE COMPANY, INC. | ||||
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By: |
/s/ Ebrahim K. Nakhjavani |
By: |
/s/ Paulus Subrata | ||
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Name: Ebrahim K. Nakhjavani Its: Manager |
Name: Paulus Subrata Title: Vice President |
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Exhibit 10.9
Exhibit 10.10
OFFER OF EMPLOYMENT
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Name: |
Wade Kodama |
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Job Title: |
Chief Financial Officer (CFO) |
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Reports To: |
Chief Executive Officer (CEO) |
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Offer Date: |
September 14, 2021 |
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Start Date: |
October 1, 2021 |
Primary Responsibilities
The Chief Financial Officer is responsible for managing the accounting operations of the Company, including the preparation of periodic financial reports, maintenance of the system of accounting controls, policies and procedures, monitoring of budgets, and filing of all regulatory reports with the Securities and Exchange Commission (“SEC”). The Chief Financial Officer will ensure that the Company’s reported financial results comply with generally accepted accounting principles and will coordinate all quarterly reviews and annual audits with the Company’s internal and external auditors.
In addition, the CFO’s responsibilities will also include cash and risk management and tax reporting. The CFO will also actively participate and assist in the Company’s business initiatives including real estate development activities, community relations, and project management. Numerous regulatory reporting, governmental reports, and zoning/entitlement updates also are within the oversight of the CFO.
The primary place of employment will be at the Company’s corporate office at 200 Village Road in the Kapalua Resort. The expectations are that the CFO will be on Maui, except when business matters require him to be elsewhere.
It is understood by the parties that the specific duties and responsibilities of the CFO are subject to modification, supplementation, change or deletion by the Chief Executive Officer (“CEO”).
During the term of employment, the CFO shall provide services exclusively on behalf of the Company and shall render services to no other person, organization, or company, except as may be approved in writing by the CEO or other officers of the Company.
Compensation
Your annual base salary will be $190,000. You will also be eligible to participate in the Company’s 2019 Equity and Incentive Award Plan (the “Plan”), effective as of, and to be pro-rated, upon your achieving proficiency in and being capable of preparing and filing the Company’s periodic SEC reports on your own. This determination will be made by the Company’s CEO, at his full discretion. Your initial annual incentive target is 35% of your annual salary or $66,500, and your long-term incentive target is 35% of your annual salary or $66,500. Both the annual incentive and the long-term incentive awards are paid in restricted stock units (RSUs). The annual incentive is paid following the Compensation Committee’s approval, which typically happens in February of each year, and the entire RSUs vest immediately. The long-term incentive is also awarded in the February timeframe and has a 3-year vesting period, meaning that it will vest ratably over 12 quarters. In total, your target total annual direct compensation is $323,000.
Your compensation shall be paid in accordance with the Company’s regular pay practices. All compensation shall be subject to applicable withholdings and deductions.
Relocation Allowance
A relocation allowance of $10,000 maximum will be available for reimbursing travel-related and moving expenses, including but not limited to, interisland airfare, and shipping of household goods and vehicle. This allowance must be expended within the first year of employment. Any unused balance will be forfeited.
Benefits
You may participate in the benefit plans and programs currently provided by the Company including medical, dental and vision coverage with the Company covering the premiums of the lowest cost plan; flexible spending account; group life insurance, accidental death and dismemberment coverage; travel accident insurance; temporary and long-term disability insurance; 401(k) plan; and other benefit plans generally available commensurate with your position.
Paid Time Off
Fifteen days of paid time off in your first year, which accrues at 4.615 hours per pay period.
Executive Severance Plan
The Company maintains an Executive Severance Plan, or Severance Plan, to retain key executives and encourage such executives to use their best business judgment in managing the affairs of the Company. The Severance Plan is administered by our Compensation Committee and provides certain severance benefits in the event an executive is involuntary terminated. The Severance Plan generally covers the Company’s named executive officers, which may include the CFO.
Your coverage under the Severance Plan needs to be approved by the Compensation Committee and will be brought before them for consideration in February 2022. We will consider the initial period of your employment, from the start date until September 2022, as a probationary period to determine your capabilities to grow into the Chief Financial Officer position.
Confidential Information
During your employment with the Company and at all times after termination of such employment, regardless of the reason for such termination, you shall hold all Confidential Information relating to the Company in strict confidence and shall not use, disclose or otherwise communicate the Confidential Information to anyone other than the Company without the prior written consent of the Company. “Confidential Information” includes, without limitation, business, operations, and financial information such as costs, profits and plans for future expansion or development, plans for rendering additional services, methods of operation and marketing concepts of Company, as well as employment policies and plans, trade secrets and other proprietary business information of the Company. “Confidential Information” shall not include information that is or becomes in the public domain through no action by you or information that is generally disclosed by the Company to third parties without restrictions on such third parties. Upon termination of employment, you shall return all Confidential Information to the Company.
Code of Business Conduct and Ethics
In accordance with the Company’s Code of Business Conduct and Ethics (“Code”), all employees are required to annually sign an acknowledgment stating that they have reviewed, understand, and agree to comply with the Code. The Code can be reviewed on the Company’s website: http://mauiland.com/documents/MLPCodeofBusinessConductandEthics20150101.pdf
Arbitration
In the event of a dispute arising out of the terms and conditions of this Offer of Employment, such dispute shall, absent settlement of the parties, be promptly resolved by final and binding arbitration in the State of Hawaii in accordance with the provisions of the Hawaii Uniform Arbitration Act, Hawaii Revised Statutes, Chapter 658A, by a single arbitrator mutually agreed upon by the parties. The arbitrator shall be required to abide by the provisions of this Offer of Employment and the arbitrator shall not modify or alter same. A judgment upon the award may be entered in any court having jurisdiction of the parties.
In arbitration, each party shall bear the costs, fees and expenses of presenting its own case, and one-half of the arbitrator’s fees and administration expenses, unless otherwise ordered by the arbitrator for cause shown.
Pre-Employment Testing
This offer of employment is contingent upon the candidate’s successful completion of the Company’s pre-employment testing and screening.
Severability
Each provision in this Offer of Employment is separate. If necessary to effectuate the purpose of a particular provision, the Offer of Employment, in whole or in part, is held to be invalid or unenforceable, the parties agree that any such provision shall be deemed modified to make such provision enforceable to the maximum extent permitted by applicable law. As to any provision held to be invalid or unenforceable, the remaining provisions of this Offer of Employment shall remain in effect.
Offer of Employment is accepted this 22 day of September 2021.
| Signature: | /s/ Wade Kodama |
| Name: | Wade Kodama |
Maui Land & Pineapple Company, Inc.
| /s/ Warren H. Haruki | |
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Warren H. Haruki Chief Executive Officer |
Exhibit 21.1
Maui Land & Pineapple Company, Inc.—Subsidiaries
As of December 31, 2021
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Name |
State of |
Percentage Ownership |
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Maui Pineapple Company, Ltd. |
Hawaii |
100 |
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Kapalua Land Company, Ltd. |
Hawaii |
100 |
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Kapalua Realty Company, Ltd. |
Hawaii |
100 |
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Kapalua Advertising Company, Ltd. |
Hawaii |
100 |
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statements No. 333-133898 and No. 333-112932 on Form S-8, and Registration Statement No. 333-150244 on Form S-3 of our report dated March 1, 2022, relating to the consolidated financial statements of Maui Land & Pineapple Company, Inc. and subsidiaries (which report expresses an unqualified opinion), appearing in this Annual Report on Form 10-K of Maui Land & Pineapple Company, Inc. for the years ended December 31, 2021 and 2020.
/s/ ACCUITY LLP
Honolulu, Hawaii
March 1, 2022
Exhibit 31.1
CERTIFICATION
I, Warren H. Haruki, 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 1, 2022 |
By: |
/s/ WARREN H. HARUKI |
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Warren H. Haruki |
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 1, 2022 |
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, 2021 as filed with the Securities and Exchange Commission on March 1, 2022 (the “Report”), I, Warren H. Haruki, Chairman of the Board and 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/ WARREN H. HARUKI |
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Warren H. Haruki |
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March 1, 2022 |
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, 2021, as filed with the Securities and Exchange Commission on March 1, 2022 (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 1, 2022 |
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.