-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DVbijwb2q6hIFFwzrVD+/LLK0cs2L/MNUwpvYoSVQzB76bytAzZ8xAk9b6gxZD2G gsoSSCR6mzdTo+D2Vdm+Ow== 0001104659-08-021625.txt : 20080401 0001104659-08-021625.hdr.sgml : 20080401 20080401153007 ACCESSION NUMBER: 0001104659-08-021625 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 20071231 FILED AS OF DATE: 20080401 DATE AS OF CHANGE: 20080401 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MAUI LAND & PINEAPPLE CO INC CENTRAL INDEX KEY: 0000063330 STANDARD INDUSTRIAL CLASSIFICATION: CANNED, FRUITS, VEG & PRESERVES, JAMS & JELLIES [2033] IRS NUMBER: 990107542 STATE OF INCORPORATION: HI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-06510 FILM NUMBER: 08729205 BUSINESS ADDRESS: STREET 1: PO BOX 187 STREET 2: 120 KANE ST CITY: KAHULUI MAUI STATE: HI ZIP: 96733 BUSINESS PHONE: 8088773351 MAIL ADDRESS: STREET 1: PO BOX 187 CITY: KAHULUI STATE: HI ZIP: 96733 10-K/A 1 a08-9454_110ka.htm 10-K/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K/A

Amendment No. 1

(Mark One)

x	ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2007

o	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from to

Commission file number 001-06510

MAUI LAND & PINEAPPLE COMPANY, INC.

(Exact name of registrant as specified in its charter)

HAWAII
(State or other jurisdiction of incorporation or organization)

99-0107542
(IRS Employer Identification number)

120 KANE STREET, P. O. BOX 187, KAHULUI, MAUI, HAWAII
(Address of principal executive offices)

96733-6687
(Zip Code)

Registrant’s telephone number, including area code (808) 877-3351

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

Title of Each Class		Name of Each Exchange on Which Registered
Common Stock, without Par Value		American Stock Exchange

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x

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

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

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K 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. o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer o

Accelerated filer x

Non-accelerated filer o
(Do not check if a smaller
reporting company)

Smaller reporting company o

Indicate by check mark whether the registrant is a shell Company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x

The aggregate market value, as of June 29, 2007, of the voting stock held by non-affiliates of the registrant was $151,098,000 based upon the closing price on the American Stock Exchange on such date. This computation assumes that all directors, executive officers and persons known to the Company to be the beneficial owners of more than ten percent of the Company’s common stock are affiliates. Such assumption should not be deemed conclusive for any other purpose.

At February 29, 2008, the number of shares outstanding of the registrant’s common stock was 8,103,395.

Documents incorporated by reference:

Part III—Certain portions of the proxy statement for the registrant’s annual meeting of stockholders to be held on May 12, 2008, to be filed no later than 120 days after the close of the registrant’s fiscal year ended December 31, 2007, are incorporated by reference into Part III of this report. Only those portions of the proxy statement that are specifically incorporated by reference herein shall constitute a part of this annual report.

Explanatory Note

We are filing this Amendment No. 1 to our Form 10-K originally filed with the Securities and Exchange Commission on March 17, 2008 because:

(1) Pursuant to Rule 3-09 of Regulation S-X, we are required to file separate audited financial statements of W2005 Kapalua/Gengate Hotel Holdings L.L.C., as of December 31, 2007. Such audited financial statements were not available when we filed the original Form 10-K for 2007.

(2) A complete copy of our Restated Articles of Association, amended as of May 7, 2007, was inadvertently not filed with our original Form 10-K for 2007, and is thus being filed as Exhibit 3.1 to this Amendment No. 1. The Exhibit Index has been revised accordingly.

In addition, in connection with filing of this Amendment No. 1 and pursuant to Rule 12b-15, certain certifications are attached as exhibits hereto.

Except as described above, this Amendment No. 1 does not amend any other information set forth in the Original Filing and the Company has not updated disclosures contained therein to reflect any events that occurred at a date subsequent to the date of the Original Filing.

PART IV

Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULE

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 report:

Consolidated Statements of Operations for the Years Ended December 31, 2007, 2006 and 2005*

Consolidated Statements of Comprehensive Income for the Years Ended December 31, 2007, 2006 and 2005*

Consolidated Balance Sheets, December 31, 2007 and 2006*

Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2007, 2006 and 2005*

Consolidated Statements of Cash Flows for the Years Ended December 31, 2007, 2006 and 2005*

Notes to Consolidated Financial Statements*

Financial Statements of Kapalua Bay Holdings, LLC as of December 31, 2007 and 2006 (Restated) and for the Years Ended December 31, 2007, 2006 (Restated) and 2005 (exhibit 99).*

Financial Statements of W2005 Kapalua/Gengate Hotel Holdings L.L.C., as of December 31, 2007 (exhibit 99.1)**

2. Financial Statement Schedules

The following Financial Statement Schedule of Maui Land & Pineapple Company, Inc. and subsidiaries is filed herewith:

II. Valuation and Qualifying Accounts for the Years Ended December 31, 2007, 2006 and 2005.*

3. Exhibits

Exhibit No.
3.1**		Restated Articles of Association, as amended May 7, 2007.
3.2		Bylaws (Amended as of December 11, 2003) (Filed as Exhibit 3.1(ii) to Amendment No. 1 to Registration Statement on Form 8-A/A, File No. 001-06510, filed January 5, 2004, and incorporated herein by reference).
3.4		Articles of Amendment to Restated Articles of Association. (Filed as Appendix A to Schedule 14A, filed March 21, 2007, and incorporated herein by reference).
4.1		Amended and Fourth Restated Revolving Credit Agreement between Bank of Hawaii, First Hawaiian Bank, Central Pacific Bank, American AgCredit, PCA, and Bank of Hawaii, as Agent for the Lenders., dated as of May 17, 2005 (Filed as Exhibit 4 to Form 10-Q for the quarter ended June 30, 2005 and incorporated herein by reference).
4.2		Bridge Loan Agreement between Pacific Coast Farm Credit Services, ACA and Maui Land & Pineapple Company, Inc., dated December 30, 1998. (Filed as Exhibit 4.2(i) to Form 10-K for the year ended December 31, 1998 and incorporated herein by reference).
4.3		Revolving line of Credit Loan Agreement between American AgCredit, FLCA, successor in interest to Pacific Coast Farm Credit Services, ACA and Maui Land & Pineapple Company, Inc., dated as of September 1, 2005 (Filed as Exhibit 4 to Form 10-Q for the quarter ended September 30, 2005 and incorporated herein by reference).
4.4		First Amendment to Revolving Line of Credit Loan Agreement between American AgCredit, FLCA, successor in interest to Pacific Coast Farm Credit Services, ACA and Maui Land & Pineapple Company, Inc., dated December 4, 2006 (Filed as Exhibit 10.1 to Form 8-K filed December 19, 2006 and incorporated herein by reference).
10.1		Second Amended and Restated Hotel Ground Lease (The Ritz-Carlton, Kapalua) between Maui Land & Pineapple Company, Inc. (Lessor) and RCK Hawaii, LLC dba RCK Hawaii-Maui (Lessee), effective as of January 31, 2001 (Filed as Exhibit 10.2(i) to Form 10-K for the year ended December 31, 2000 and incorporated herein by reference).

Exhibit No.
10.2†		Executive Deferred Compensation Plan (revised as of 8/16/91) (Filed as Exhibit (10)A to Form 10-Q for the quarter ended September 30, 1994 and incorporated herein by reference).
10.3†		Supplemental Executive Retirement Plan (effective as of January 1, 1988) (Filed as Exhibit (10)B to Form 10-K for the year ended December 31, 1988 and incorporated herein by reference).
10.4†		Restated and Amended Change-In-Control Severance Agreement (Warren A. Suzuki, Vice President/Land Management), dated as of March 16, 1999 (Filed as Exhibit 10.3 (viii) to Form 10-K for the year ended December 31, 1998 and incorporated herein by reference).
10.5†		Executive Severance Plan, as amended through November 6, 1998 (Filed as Exhibit 10.3 (x) to Form 10-K for the year ended December 31, 1998 and incorporated herein by reference).
10.6†		Employment Agreement effective as of October 6, 2003 by and between Maui Land & Pineapple Company, Inc. and David C. Cole (Filed as Exhibit 10.3(viii) to Form 10-K for the year ended December 31, 2003 and incorporated herein by reference).
10.7†		Maui Land & Pineapple Company, Inc. Stock Option Agreement for David Cole, dated October 6, 2003 (Filed as Exhibit 10.3 (ix) to Form 10-K for the year ended December 31, 2003 and incorporated herein by reference).
10.8†		Maui Land & Pineapple Company, Inc. Restricted Share Agreement for David Cole, dated October 6, 2003 (Filed as Exhibit 10.3(x) to Form 10-K for the year ended December 31, 2003 and incorporated herein by reference).
10.9†		Maui Land & Pineapple Company, Inc. 2006 Equity and Incentive Award Plan (Incorporated by reference to Appendix B of the Definitive Proxy Statement on Schedule 14A filed on March 27, 2006).
10.10		Kapalua Bay Hotel & Villas, Purchase and Sale Agreement and Escrow Instructions, Between YCP Kapalua L.P. and YCP Kapalua Operator, Inc., collectively, as seller, and Maui Land & Pineapple Company, Inc. as Purchaser, as of April 30, 2004 (Filed as Exhibit 10(A) to Form 10-Q for the quarter ended June 30, 2004 and incorporated herein by reference).
10.11		Limited Liability Company Agreement of Kapalua Bay Holdings, LLC, dated August 31, 2004 (Filed as Exhibit 10(A) to Form 10-Q for the quarter ended September 30, 2004 and incorporated herein by reference).
10.12		First Amendment to Purchase and Sale Agreement and Joint Escrow Instructions, entered into as of August 6, 2004, by and among YCP Kapalua L.P., and YCP Kapalua Operator, Inc., and Maui Land & Pineapple Company, Inc. (Filed as Exhibit 10(B) to Form 10-Q for the quarter ended September 30, 2004 and incorporated herein by reference).
10.13		Termination of Hotel Ground Lease, effective as of August 31, 2004 (Filed as Exhibit 10I to Form 10-Q for the quarter ended September 30, 2004 and incorporated herein by reference).
10.14		Settlement Agreement and Release of All Claims (Board of Water Supply of the County of Maui vs. Shell Oil Company, et al.) (Filed as Exhibit 10.5(i) to Form 10-K for the year ended December 31, 1999 and incorporated herein by reference).
10.15		Purchase and Sale Agreement effective as of March 14, 2006, by and between Maui Land & Pineapple Company, Inc. and David C. Cole and Margaret Cole (Filed as Exhibit 10 to Form 10-Q for the quarter ended March 31, 2006 and incorporated herein by reference).
10.16		Construction Loan Agreement between Kapalua Bay Holdings, LLC, and Lehman Brothers Holdings, Inc. (Filed as Exhibit 10.1 to Form 8-K filed July 20, 2006 and incorporated herein by reference).
10.17		Fee and Leasehold Mortgage, Security Agreement and Fixture Filing made by Kapalua Bay, LLC in favor of Lehman Brothers Holdings, Inc. (Filed as Exhibit 10.2 to Form 8-K filed July 20, 2006 and incorporated herein by reference).
10.18		Promissory Note issued by Kapalua Bay, LLC to Lehman Brothers Holdings, Inc. (Filed as Exhibit 10.3 to Form 8-K filed July 20, 2006 and incorporated herein by reference).
10.19		Completion Guaranty made by Maui Land & Pineapple Company, Inc., The Ritz-Carlton Development Company, Inc. and Exclusive Resorts Development Company, LLC in favor of Lehman Brothers Holdings, Inc. (Filed as Exhibit 10.4 to Form 8-K filed July 20, 2006 and incorporated herein by reference).
10.20		Recourse Guaranty made by Maui Land & Pineapple Company, Inc., The Ritz-Carlton Development Company, Inc. and Exclusive Resorts Development Company, LLC in favor of Lehman Brothers Holdings, Inc. (Filed as Exhibit 10.5 to Form 8-K filed July 20, 2006 and incorporated herein by reference).
10.21†		Amendment to Stock Option Agreement dated August 7, 2006, by and between Maui Land & Pineapple Company, Inc. and David C. Cole (Filed as Exhibit 10.1 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.22†		Restricted Stock Award Agreement and Award Grant Notice, dated as of August 4, 2006, by and between Maui Land & Pineapple Company, Inc. and David C. Cole (Filed as Exhibit 10.2 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).

Exhibit No.
10.23†		Stock Option Agreement and Stock Option Grant Notice, dated as of August 4, 2006, by and between Maui Land & Pineapple Company, Inc. and David C. Cole (Filed as Exhibit 10.3 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.24†		Amendment to Stock Option Agreement, dated as of August 7, 2006, by and between Maui Land & Pineapple Company, Inc. and Brian C. Nishida (Filed as Exhibit 10.4 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.25†		Employment Agreement, dated August 4, 2006, by and between Maui Land & Pineapple Company, Inc. and Robert I. Webber (Filed as Exhibit 10.5 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.26†		Restricted Stock Award Agreement and Award Grant Notice, dated as of August 7, 2006, by and between Maui Land & Pineapple Company, Inc. and Brian C. Nishida (Filed as Exhibit 10.6 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.27†		Restricted Stock Award Agreement and Award Grant Notice, dated as of August 4, 2006, by and between Maui Land & Pineapple Company, Inc. and Robert I. Webber (Filed as Exhibit 10.7 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.28†		Restricted Stock Award Agreement and Award Grant Notice, dated as of August 4, 2006, by and between Maui Land & Pineapple Company, Inc. and Fred W. Rickert (Filed as Exhibit 10.8 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.29†		Form of Award Grant Notice and Stock Option Agreement, pursuant to the Maui Land & Pineapple Company, Inc. 2006 Equity and Incentive Award Plan (Filed as Exhibit 10.9 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.30†		Form of Restricted Stock Award Grant Notice and Restricted Stock Award Agreement, pursuant to the Maui Land & Pineapple Company, Inc. 2006 Equity and Incentive Award Plan (Filed as Exhibit 10.10 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.31		First Amendment to Purchase and Sale Agreement, dated as of August 7, 2006, by and between Maui Land & Pineapple Company, Inc. and David C. Cole (Filed as Exhibit 10.11 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.32		Purchase and Sale Agreement, dated August 7, 2006, by and between Maui Land & Pineapple Company, Inc. and Duncan MacNaughton (Filed as Exhibit 10.12 to Form 10-Q for the quarter ended June 30, 2006 and incorporated herein by reference).
10.33		Termination of Purchase and Sale Agreement dated August 7, 2006 between Duncan MacNaughton and Maui Land & Pineapple Company, Inc. (Filed as Exhibit 10.1 to Form 10-Q for the quarter ended September 30, 2006 and incorporated herein by reference).
10.34†		Separation of Employment Agreement between Thomas Juliano and Kapalua Land Company, Ltd., dated October 24, 2006 and effective as of November 3, 2006 (Filed as Exhibit 10.2 to Form 10-Q for the quarter ended September 30, 2006 and incorporated herein by reference).
10.35		Promissory Note issued by Maui Land & Pineapple Company, Inc. in favor of GE Capital Public Finance, Inc., dated September 29, 2006 (Filed as Exhibit 10.1 to Form 8-K filed October 5, 2006 and incorporated herein by reference).
10.36		Guaranty Agreement made by Maui Land & Pineapple Company, Inc. in favor of GE Capital Public Finance, Inc., dated September 29, 2006 (Filed as Exhibit 10.2 to Form 8-K filed October 5, 2006 and incorporated herein by reference).
10.37		Loan Agreement (Real Estate) between Bank of Hawaii and Maui Land & Pineapple Company, Inc., dated October 1, 2006 (Filed as Exhibit 10.1 to Form 8-K filed November 2, 2006 and incorporated herein by reference).
10.38		Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing made by Maui Land & Pineapple Company, Inc. in favor of Bank of Hawaii, dated October 1, 2006 (Filed as Exhibit 10.2 to Form 8-K filed November 2, 2006 and incorporated herein by reference).
10.39+		Sale, Purchase and Lease Termination Agreement, entered into on March 28, 2007. (Filed as Exhibit 10.1 to Form 10-Q for the quarter ended March 31, 2007 and incorporated herein by reference).
10.40+		Second Amended and Restated Limited Liability Company Agreement of W2005 Kapalua/Gengate Hotel Holdings L.L.C., entered into on March 28, 2007 (Filed as Exhibit 10.2 to Form 10-Q for the quarter ended March 31, 2007 and incorporated herein by reference).
10.41		Termination of Memorandum of Hotel Ground Lease, dated as of March 28, 2007 (Filed as Exhibit 10.3 to Form 10-Q for the quarter ended March 31, 2007 and incorporated herein by reference).
10.42†		Option Agreement dated August 6, 2007 between Maui Land & Pineapple Company, Inc. and Robert I. Webber (Filed as Exhibit 10.1 to Form 10-Q for the quarter ended June 30, 2007 and incorporated herein by reference).

Exhibit No.
10.43+		Exclusive Consignment and Marketing Agreement with Calavo Growers, Inc. and Maui Pineapple Company, Ltd. Entered into on November 2, 2007.
10.44*		First Amendment to Consignment and Marketing Agreement with Calavo Growers, Inc., entered into on November 2, 2007.
10.45		Loan Agreement between Maui Land & Pineapple Company, Inc., Wells Fargo Bank, National Association, and each of the Financial Institutions Signatory thereto, Entered into on November 15, 2007 (Filed as Exhibit 10.1 to Form 8-K filed November 19, 2007 and incorporated herein by reference).
10.46		Fee and Leasehold Mortgage with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing, Entered into on November 15, 2007 (Filed as Exhibit 10.2 to Form 8-K filed November 19, 2007 and incorporated herein by reference).
10.47		Consulting Agreement between Maui Land & Pineapple Company, Inc., and BC&G International LLC, entered into on April 9, 2007 (Filed as Exhibit 10.1 to Form 8-K filed April 13, 2007 and incorporated herein by reference).
10.48		Securities Purchase Agreement between Maui Land & Pineapple Company, Inc., and Ohana Holdings, LLC and ZG Ventures, LLC entered into on March 12, 2007 (Filed as Exhibit 10.1 to Form 8-K filed March 15, 2007 and incorporated herein by reference).
10.49		Registration Rights Agreement between Maui Land & Pineapple Company, Inc. and Ohana Holdings, LLC and ZG Ventures, LLC entered into on March 12, 2007 (Filed as Exhibit 10.2 to Form 8-K filed March 15, 2007 and incorporated herein by reference).
10.50**		Amendment No. 1 to Registration Rights Agreement, entered into as of March 10, 2008.
11.		Statement re computation of per share earnings. See Earnings Per Common Share under Note 1 to the Consolidated Financial Statements.
21.*		Subsidiaries of Maui Land & Pineapple Company, Inc.
23.1*		Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm, dated March 14, 2008.
23.2*		Consent of Deloitte & Touche LLP, Independent Auditors, dated March 14, 2008.
23.3**		Consent of PricewaterhouseCoopers LLP, Independent Certified Public Accountants, dated March 31, 2008.
31.1**		Certification of Chief Executive Officer Pursuant to Rule 13a-14(a) / 15d-14(a) of the Securities Exchange Act of 1934.
31.2**		Certification of Chief Financial Officer Pursuant to Rule 13a-14(a) / 15d-14(a) of the Securities Exchange Act of 1934.
32.1***		Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
99.*		Financial Statements of Kapalua Bay Holdings, LLC as of December 31, 2007 and 2006 (Restated) and for the Years Ended December 31, 2007, 2006 (Restated) and 2005.
99.1**		W2005 Kapalua/Gengate Hotel Holdings L.L.C. Consolidated Financial Statements December 31, 2007.

* Previously filed with the Form 10-K filed on March 17, 2008.

** Filed herewith.

*** Furnished herewith and not “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.

† Management contract or compensatory plan or arrangement required to be filed as an exhibit to this Form pursuant to Item 15(c) of Form 10-K.

+ Portions of this exhibit have been omitted pursuant to a request for confidential treatment under Rule 24-b-2 of the Exchange Act. The omitted material has been separately filed with the Securities and Exchange Commission.

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on March 31, 2008.

	MAUI LAND & PINEAPPLE COMPANY, INC.

	By	/s/ DAVID C. COLE
		DAVID C. COLE
		President & Chief Executive Officer

EX-3.1 2 a08-9454_1ex3d1.htm EX-3.1

Exhibit 3.1

RESTATED

ARTICLES OF ASSOCIATION

MAUI LAND & PINEAPPLE COMPANY, INC.

(As of May 7, 2007)

These Restated Articles of Association correctly set forth without change the corresponding provisions of the Articles of Association as amended through the date hereof, and pursuant to section 415-64, Hawaii Revised Statutes supersede the original articles of association and all amendments thereto.

W I T N E S S E T H:

That said parties hereto do hereby covenant and agree, each with the others, to become associated together as a joint stock company under the laws of said Territory to obtain the rights and benefits by said laws conferred upon joint stock companies or corporations, and have made and entered into the following Articles of Association, the terms whereof it is agreed shall be equally obligatory upon the parties signing this instrument and upon all others who from time to time hereafter may become members of this corporation, and who may hold stock therein.

The name of the corporation shall be “Maui Land & Pineapple Company, Inc.”

II.

The place of the principal office of the corporation shall be at Kahului, Maui, Hawaii; there may be such subordinate or branch offices in such place or places within Hawaii or elsewhere as may be deemed necessary or requisite by the Board of Directors to transact the business of the corporation, such branch or subordinate offices to be in charge of such person or persons as may be appointed by the Board of Directors.

III.

The purposes for which said corporation is organized are:

(a) To operate, conduct, engage in and carry on the business of growing and cultivating pineapples and other fruits, vegetables and all kinds of farm produce and products of the soil; to erect and to maintain canneries, bottling works, packing or preserving establishings, factories and warehouses; to manufacture containers, appliances, machines, instruments and products, and to use, sell and dispose of the same;

(b) To engage in and carry on the business of cattle ranching, dairying and in pursuits producing any and all agricultural products;

(c) To purchase or otherwise acquire, sell, market and generally deal in sugar, sugar cane, sugar beets, molasses, syrups, melada, pineapples, pineapple products, dairy products, ranch products and agricultural products of any kind or nature, and by-products of any of the foregoing;

(d) To acquire, construct, maintain and operate pumping plants, irrigation systems, dams and works, for the development, storage, transmission and utilizing of water, for plantation or other purposes, for its own use and for use of others or for purposes of sale;

(e) To generate, use, sell and supply heat, power or energy of any kind, electric or otherwise, for heating, lighting, driving or other motive power for any industry or purpose, for itself or others, for hire or otherwise, and acquire, construct, maintain and use all appropriate plants and systems and their appurtenances for the manufacture, transmission and delivery or use thereof;

(f) To contract with others for the growing, production and manufacture of any agricultural or other products or commodities suitable for any of the purposes of the corporation, and to make advances to others and to take security from others in connection therewith;

(g) To acquire, build, charter, lease or own ships, vessels, lighters, docks and (or) operate the same between the ports of the Hawaiian Islands and the ports of the Hawaiian Islands and other ports;

(h) To own, operate and carry on a store or stores for the purchase and sale of goods, wares and merchandise and otherwise to deal in the same, and to do a general export and import, wholesale and retail merchandising business;

(i) To do any of the business or exercise any of its powers either solely or on its own account or as agent, factor, broker or representative of any other person, company, association or corporation; and to carry on any of said business or exercise any of the powers aforesaid, either directly or by virtue of ownership or control of the stock or shares of any other company, corporation or enterprise to the fullest extent permitted by law;

(j) To buy or otherwise acquire, own, hold, use, improve, develop, mortgage, lease or take on lease, sell, convey, and in any and every other manner deal in and with and dispose of real estate, buildings, and other improvements, hereditaments, easements and appurtenances of every kind in connection therewith, or any estate or interests therein, of any tenure or description, to the fullest extent permitted by law, and also any and all kinds of chattels, goods, wares, merchandise, and agricultural, manufacturing and mercantile products and commodities, and patents, licenses, debentures, securities, stocks, bonds, commercial paper, and other forms of assets, rights and interests and evidences of property or indebtedness, tangible or intangible;

(k) To undertake and carry on any business, investment, transaction, venture or enterprise which may be lawfully undertaken or carried on by a corporation and any business whatsoever which may seem to the corporation convenient or suitable to be undertaken whereby directly or indirectly to promote any of its general purposes or interests or render more valuable or profitable any of its property, rights, interests, or enterprises; and, for any of the purposes mentioned in these Articles, to acquire by purchase, lease or otherwise, the property, rights, franchise, assets, business and goodwill of any person, firm, association, or corporation engaged in or authorized to conduct any business or undertaking which may be carried on by this corporation or possessed of any property suitable or useful for any of its own purposes, and carry on the same, and undertake all or any part of the obligations and liabilities in connection therewith, on such terms and conditions and for such consideration as may be agreed upon, and to pay for the same either all or partly in cash, stocks, bonds, debentures, or other forms of assets or securities, either of this corporation or otherwise; and to effect any such acquisition or carry on any business authorized by these Articles either by directly engaging therein, or indirectly by acquiring the shares, stocks or other securities of such other business or entity, and holding and voting the same and otherwise exercising and enjoying the rights and advantages incident thereto;

And in furtherance of said purpose and without prejudice to the generality of the foregoing terms, the corporation shall also have the following powers, that is to say:

1. To have succession by its corporate name in perpetuity as hereinafter provided; to sue and be sued in any court; to make and use a common seal, and alter the same at its pleasure; to hold, purchase and convey such property as the purposes of the corporation shall require without limit as to amount, and to mortgage the same to secure any debt of the corporation; to appoint such subordinate officers and/or agents as the business of the corporation shall require, to make and adopt and from time to time amend or repeal By-Laws not inconsistent with any existing law for the management of its properties, the election and removal of its officers, the regulation of its affairs and the transfer of its stock;

2. To borrow money or otherwise incur indebtedness with or without security, which indebtedness may at any time and from time to time, without any necessity of any authorization or consent of the stockholders of the corporation or any majority thereof, exceed the amount of the corporation’s capital stock, and to secure any indebtedness by deed of trust, mortgage, pledge, hypothecation or other lien upon all or any part of the real or personal property of the corporation and to execute bonds, promissory notes, bills of exchange, debentures or other obligations or evidences of indebtedness of all kinds, whether secured or unsecured;

3. To purchase on commission or otherwise, subscribe for, hold, own, sell on commission or otherwise, or otherwise acquire or dispose of and generally to deal in stocks, scrip, bonds, notes, debentures, commercial paper, obligations and securities, including so far as permitted by law, its own issued shares of capital stock or other securities, and also any other securities or evidences of indebtedness whatsoever or any interest therein, and while owner of the same to exercise all the rights, powers and privileges of ownership;

4. To draw, make, accept, endorse, assign, discount, execute and issue all such bills of exchange, bills of lading, promissory notes, dock and other warrants and other instruments to be assignable, negotiable or transferable by delivery or to order, or otherwise, as the business of the corporation shall require;

5. To lend and advance money or to give credit, with or without security, to such persons, firms or corporations and on such terms as may be thought fit; and if with security then upon mortgages, deeds of trust, pledges or other hypothecations or liens upon real, personal or mixed property, or any right or interest therein or thereto;

6. To aid in any manner any corporation of which any of the bonds or other securities or evidences of indebtedness or stock are held by this corporation, and to do any acts or things to preserve, protect, improve or enhance the value of any such bonds or other securities or evidences of indebtedness or stock, including specifically the right and power to enter into and take the management of any business enterprise of any kind or nature, and while so managing any such business, to do the acts and things incidental or necessary thereto;

7. To become a member of any general or limited partnership and to exercise all powers and privileges of a partner in any such partnership organized for or engaged in any business or carrying out any purpose which the corporation is, under these Articles of Association and the laws of Hawaii, authorized to engage in or carry out; and to join and engage in business as a member of any joint venture organized for or engaged in any business or carrying out any purpose which the corporation is, under these Articles of Association and the laws of Hawaii, authorized to engage in or carry out;

8. To enter into and perform contracts, undertakings, and obligations of every kind and character;

9. To promote, assist, subscribe or contribute to any association, organization, society, company, institution or object, charitable or otherwise, calculated to benefit the corporation or any persons in its employ or having dealings with the corporation, or deemed to be for the common or public welfare, including the erection, operation and maintenance and/or the aiding and assisting of hospitals, surgeries, clinics and laboratories;

10. To become a party to and effect a merger or consolidation with another corporation or other corporations, and to enter into agreements and relationships not in contravention of law with any persons, firms or corporations;

11. To become surety for or guarantee any dividends, bonds, stocks, contracts, debts, or other obligations or undertakings of any other person, firm or corporation, and to convey, transfer, or assign by way of pledge or mortgage all or any of the corporation’s property or rights, both present and future to secure the debts or obligations, present or future, of such persons, firms or corporation and on such terms and conditions as the corporation may determine.

The foregoing clauses shall be liberally construed, both as to purposes and powers. The enumeration herein of the purposes and powers of the corporation shall not be deemed to exclude by inference any purposes or powers which this corporation is empowered to exercise, whether expressly by force of the laws of Hawaii now or hereafter in effect, or impliedly by the reasonable construction of such laws.

IV.

(a) The amount of the authorized capital stock of the corporation is Twenty-Three Million (23,000,000) shares of common stock without par value.

(b) The corporation shall have power from time to time to increase and reduce its capital stock and to increase and reduce the par value of its shares of capital stock having a par value and to convert shares of its capital stock having a par value into shares without par value and to convert shares of its capital stock without par value into shares with par value, all according to law. The corporation shall have power from time to time upon compliance with applicable law to issue additional classes of capital stock, either with or without par value, with such preferences, voting powers, restrictions and qualifications thereof, and subject to such provisions for call and retirement thereof or conversion thereof into common capital stock or into other classes of capital stock, and with such other provisions as shall be fixed in the resolution authorizing the issue thereof, or as shall be determined pursuant to the authority contained in such resolution in accordance with law.

(c) The holders of the capital stock of the corporation having voting rights may, by the vote of the holders of not less than two-thirds of such capital stock outstanding (or if there are two or more classes of capital stock of the corporation having voting rights outstanding, by vote of the holders of two-thirds of each class of capital stock having voting rights) at any meeting of stockholders of the corporation called for the purpose, deny, limit or restrict any right of the stockholders of the corporation which may exist by virtue of the common law or any statute or otherwise to subscribe for additional shares of capital stock of the corporation of any class, whether such additional shares have been authorized prior to or at such meeting of stockholders, but no such vote shall in any way deny, limit or restrict any rights previously granted to the holders of any class of stock of the corporation in and by the resolution creating and authorizing such class of stock.

(d) If, whenever and as often as shares of capital stock of the corporation without par value shall be authorized, the Board of Directors is authorized and empowered to determine from time to time the consideration for and the terms and conditions upon which shares of capital stock of the corporation without par value may be issued and what portion of such consideration shall constitute capital and what portion thereof, if any, shall constitute paid in surplus; subject always to the applicable provisions of these Articles of Association and the provisions of law.

(a) The officers of the corporation shall be a President, one or more Vice Presidents as may be determined in accordance with the By-Laws, a Secretary and a Treasurer. The corporation may have such additional officers as may be determined in accordance with the By-Laws from time to time. The officers shall have the powers, perform the duties, and be appointed and removable as may be determined in accordance with the By-Laws. Any person may hold two offices of the corporation if so provided by the By-Laws.

(b) The Board of Directors shall consist of such number of persons, not less than nine (9) nor more than twelve (12) as shall be determined in accordance with the Bylaws from time to time. The Board of Directors shall be divided into three classes, with each class consisting of one-third of the total number of directors (or as near to this as possible). Each class shall hold office for a period of three years, with a term of office expiring at the third annual meeting of shareholders following his or her election, and when his or her successor has been duly elected and qualified.

(c) All powers and authority of the corporation shall be vested in and may be exercised by the Board of Directors except as otherwise provided by law, these Articles of Association, or the By-Laws of the corporation; and in furtherance and not in limitation of said general powers, the Board of Directors shall have power: To acquire and dispose of property; to appoint a General Manager, Branch Managers and such other Managers, Officers or Agents of the corporation as in its judgment the business may require, and to confer upon and to delegate to them by power of attorney or otherwise such power and authority as it shall determine; to fix the salaries or compensation of any or all of the officers, agents and employees of the corporation, and in its discretion require security of any of them for the faithful performance of any of their duties; to declare dividends in accordance with law when it shall deem it expedient; to make rules and regulations not inconsistent with law or these Articles of Association or the By-Laws for the transaction of business; to instruct the officers or agents of the corporation with respect to, and to authorize the voting of stock of other corporations owned or held by this corporation; to incur such indebtedness as may be deemed necessary, which indebtedness may exceed the amount of the corporation’s capital stock; to create such committees (including an executive committee or committees) and to designate as members of such committees such persons as it shall determine, and to confer upon such committees such powers and authorities as may by resolution be set forth for the purpose of carrying on or exercising any of the powers of the corporation; to create and set aside reserve funds for any purpose and to invest any funds of the corporation in such securities or other property as it may seem proper; to remove or suspend any officer and generally to do any and every lawful act necessary or proper to carry into effect the powers, purposes and objects of the corporation.

(d) There shall be an Auditor of the corporation who shall be elected annually by the stockholders. The Auditor shall audit the books and accounts of the corporation and shall certify his findings and report thereon, in writing, to the stockholders at least annually; and shall make such other audits and reports as the Board of Directors shall determine from time to time. The Auditor may be a person, co-partnership, or, if permitted by law, a corporation. The Auditor may be removed from office either with or without cause at any time at a special meeting of the stockholders called for the purpose, and any vacancy caused by such removal may be filled for the balance of the unexpired term by the stockholders at a special meeting called for the purpose. In case of a vacancy in the office of Auditor other than by removal, the vacancy may be filled for the unexpired term by the Board of Directors or, if a special meeting shall be held during the existence of such vacancy, the vacancy may be filled at such special meeting of the stockholders.

VI.

(a) No director, officer, employee or agent of the corporation and no person serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise and no heir, executor or administrator of any such person shall be liable to this corporation for any loss or damage suffered by it on account of any action or omission by him as such director, officer, employee or agent if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of this corporation, unless with respect to an action or suit by or in the right of the corporation to procure a judgment in its favor such person shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of his duty to this corporation.

(b) (1) The corporation shall indemnify each person who after the adoption of this Article VI is made a party or is threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation or of any division of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of this corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of this corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

(2) The corporation shall indemnify each person who after the adoption of this Article VI is made a party or is threatened to be made a party to any action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation or of any division of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of this corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of his duty to this corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

(3) To the extent that a director, officer, employee or agent of the corporation or of any division of the corporation, or a person serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraphs (1) and (2) of this section, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

(4) Any indemnification under paragraphs (1) and (2) of this section (unless ordered by a court) shall be made by the corporation unless a determination is made that the director, officer, employee or agent has failed to meet the applicable standard of conduct set forth in paragraphs (1) and (2). Such determination may be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding; (ii) if such a quorum is not obtainable or even if obtainable a quorum of disinterested directors so directs by independent legal counsel in a written opinion to the corporation; or (iii) if a quorum of disinterested directors so directs, by a majority vote of the stockholders.

(5) Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in a particular case upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized in this Article.

(6) The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

(7) The benefits and protections of paragraphs (a) and (b) of this Article shall extend to officers, directors, employees and agents of subsidiary corporations even though such service was not at the specific request of this corporation and shall be in addition to the coverage, if any, provided by such subsidiary. For purposes of this Article, subsidiary corporation shall mean any corporation in which this corporation owns more than 50% of the outstanding stock or any corporation more than 50% of whose outstanding stock is owned by a subsidiary of this corporation. For purposes of this Article, the term agent shall include those persons acting on behalf of this corporation who (i) are not otherwise covered by this Article as directors, officers or employees and (ii) have been specifically designated by the Board of Directors or management of this corporation as being entitled to indemnification hereunder.

(8) The corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or of any division of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. Any such insurance may be procured from any insurance company designated by the Board of Directors, including any insurance company in which the corporation shall have any equity or other interest, through stock ownership or otherwise.

(9) This Article shall be effective upon its adoption and shall apply to any person or entity covered by this Article with respect to any event or transaction occurring after adoption.

(c) No contract, agreement, undertaking or other transaction between the corporation and any other corporation, partnership, joint venture or trust shall be invalidated or affected in any way by the fact that some or all of the officers and/or directors of the corporation are interested in or are officers, directors, stockholders, partners, joint venturers, trustees or beneficiaries of such other corporation, partnership, joint venture or trust; and any director of this corporation who is interested in or is an officer, director, stockholder, partner, joint venturer, trustee or beneficiary of any such other corporation, partnership, joint venture or trust may be counted in determining the existence of a quorum at any meeting of the Board of Directors of the corporation which shall authorize or approve any such contract, agreement, undertaking or other transaction, and may vote thereat to approve any such contract, agreement, undertaking or other transaction with like force and effect as if he were not interested in, or an officer, director, stockholder, partner, joint venturer, trustee or beneficiary of such other corporation, partnership, joint venture or trust.

VII.

The duration of the corporation shall be perpetual.

VIII.

Service of legal process may be made upon the corporation in the manner provided by law.

IX.

No stockholder shall be liable for the debts of the corporation beyond the amount which may be due and unpaid upon any share or shares of stock of the corporation owned by him.

EX-10.50 3 a08-9454_1ex10d50.htm EX-10.50

Exhibit 10.50

MAUI LAND & PINEAPPLE COMPANY, INC.

AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT

This Amendment No. 1 to Registration Rights Agreement (the “Amendment”) is entered into as of March 10, 2008, by and among Maui Land & Pineapple Company, Inc., a Hawaii corporation (the “Company”), on the one hand, and Ohana Holdings, LLC (“Ohana”), and ZG Ventures, LLC (“ZG,” and together with Ohana, the “Investors”), being the holders of not less than a majority in interest of the Registrable Securities, on the other hand. Reference is made to that certain Registration Rights Agreement (the “Agreement”), dated March 12, 2007, by and among the Company and each of the Investors, obligating the Company to file a registration statement with the Securities and Exchange Commission to register the Registrable Securities for resale not later than March 12, 2008 (the “Filing Deadline”). The Company and the Investors desire, pursuant to Article X of the Agreement, to amend Section 2.1(a) of the Agreement to extend the Filing Deadline to March 31, 2008.

NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for good and valuable consideration, receipt of which is hereby acknowledged, the parties hereby agree as follows:

1. Definitions. Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Agreement.

2. Amendment. The first sentence of Section 2.1(a) of the Agreement is hereby amended to read in full as follows:

“2.1 (a) On or before March 31, 2008, the Company shall prepare, and file with the Commission a Registration Statement on Form S-3 covering the resale of all of the Registrable Securities.”

3. Miscellaneous.

a. Ratification; Effect. This Amendment shall be construed in connection with and as part of the Agreement, and all terms, conditions, and covenants set forth in the Agreement and each other instrument or agreement referred to therein, as applicable, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.

b. Further Assurances. Each party agrees to execute such other and further instruments and documents as may be necessary or proper in order to complete the transactions contemplated by this Amendment.

c. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[Signature page follows]

IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to Registration Rights Agreement as of the date first set forth above.

	COMPANY:

	MAUI LAND & PINEAPPLE COMPANY, INC.

	By:	/s/ Robert I. Webber
		Robert I. Webber
		Chief Operating Officer and Chief Financial
		Officer


	INVESTORS:


	OHANA HOLDINGS, LLC


	By:	/s/ Michael Mohr
		Michael Mohr
		Managing Member


	ZG VENTURES, LLC


	By:	/s/ Miles Gilburne
		Miles Gilburne
		Managing Member

EX-23.3 4 a08-9454_1ex23d3.htm EX-23.3

Exhibit 23.3

CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS

We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (Nos. 333-133898, 333-121705, 333-119808, and 333-112932) of Maui Land & Pineapple Company, Inc. of our report dated March 31, 2008 relating to the financial statements of W2005 Kapalua/Gengate Hotel Holdings, LLC, which appears in this Form 10-K/A.

/s/ PricewaterhouseCoopers LLP

PricewaterhouseCoopers LLP
Fort Lauderdale, Florida

March 31, 2008

EX-31.1 5 a08-9454_1ex31d1.htm EX-31.1

Exhibit 31.1

CERTIFICATION

I, David C. Cole, certify that:

1. I have reviewed this Annual Report on Form 10-K/A of Maui Land & Pineapple Company, Inc.;

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;

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;

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:

(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;

(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;

(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

(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 that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

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:

(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

(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.

Date:	March 31, 2008

			/s/ DAVID C. COLE
		Name:	David C. Cole
		Title:	Chairman, President & Chief Executive Officer (Principal Executive Officer

EX-31.2 6 a08-9454_1ex31d2.htm EX-31.2

Exhibit 31.2

CERTIFICATION

I, Robert I. Webber, certify that:

1. I have reviewed this Annual Report on Form 10-K/A of Maui Land & Pineapple Company, Inc.;

(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.

Date:	March 31, 2008

			/s/ ROBERT I. WEBBER
		Name:	Robert I. Webber
		Title:	Chief Operating Officer, Chief Financial Officer and Executive Vice President (Principal Financial Officer)

EX-32.1 7 a08-9454_1ex32d1.htm EX-32.1

Exhibit 32.1

The following certifications are being furnished solely to accompany the Report pursuant to 18 U.S.C. § 1350 and in accordance with SEC Release No. 33-8238. These certifications shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall be incorporated by reference in any filing of the Company under the Securities Act of 1933, as amended, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

In connection with the Annual Report of Maui Land & Pineapple Company, Inc. (the “Company”) on Form 10-K/A for the year ended December 31, 2007 as filed with the Securities and Exchange Commission (the “Report”), we, David C. Cole and Robert I. Webber, respectively, the Chairman, President & Chief Executive Officer and Chief Operating Officer, Chief Financial Officer & Executive Vice President of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to section 906 of the Sarbanes-Oxley Act of 2002, that:

(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.

/s/ DAVID C. COLE
David C. Cole Chairman, President & Chief Executive Officer (Principal Executive Officer)

	March 31, 2008
Date

/s/ ROBERT I. WEBBER
Robert I. Webber Chief Operating Officer, Chief Financial Officer & Executive Vice President (Principal Financial Officer)

	March 31, 2008
Date

A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

EX-99.1 8 a08-9454_1ex99d1.htm EX-99.1

Exhibit 99.1

W2005 Kapalua/Gengate Hotel
Holdings, LLC

Consolidated Financial Statements

December 31, 2007

W2005 Kapalua/Gengate Hotel Holdings, LLC

Index

	Page(s)

Report of Independent Certified Public Accountants	1

Consolidated Financial Statements

Balance Sheet	2

Statement of Operations and Changes in Members’ Capital	3

Statement of Cash Flows	4

Notes to Consolidated Financial Statements	5-13

Report of Independent Certified Public Accountants

To the Members of

W2005 Kapalua/Gengate Hotel Holdings, LLC

In our opinion, the accompanying consolidated balance sheet and the related consolidated statements of operations and changes in members’ capital and cash flows present fairly, in all material respects, the financial position of W2005 Kapalua/Gengate Hotel Holdings, LLC and its subsidiaries at December 31, 2007, and the results of their operations and their cash flows for the year then ended in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit of these statements in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP

Fort Lauderdale, Florida
March 31, 2008

W2005 Kapalua/Gengate Hotel Holdings, LLC

Consolidated Balance Sheet

December 31, 2007

Assets
Current assets
Cash and cash equivalents	$	6,692,285
Restricted cash	3,142,378
Accounts receivable, net of allowance for doubtful accounts of $197,820	1,105,760
Other receivable	2,700,000
Inventories	361,009
Prepaid expenses and other current assets	147,321
Total current assets	14,148,753
Property and equipment, net	329,704,395
Deferred financing costs, net	2,569,972
Total assets	$	346,423,120
Liabilities and Members’ Capital
Current liabilities
Accounts payable and accrued expenses	$	26,361,349
Accrued construction in progress	10,556,038
Due to related parties	747,775
Due to hotel operator	406,041
Advance deposits	7,029,153
Interest on long-term debt	4,086,363
Other liabilities	2,500,000
Total current liabilities	51,686,719
Long-term liabilities
Long-term debt	288,635,963

Commitments and contingencies (Note 7)

Members’ capital	6,100,438
Total liabilities and members’ capital	$	346,423,120

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

W2005 Kapalua/Gengate Hotel Holdings, LLC

Consolidated Statement of Operations and Changes in Members’ Capital

For the Year Ended December 31, 2007

Revenues
Rooms	$	23,245,341
Food and beverage	16,003,567
Other hotel	5,563,248
Total revenues	44,812,156

Operating expenses
Hotel operations	26,483,735
General and administrative	15,327,218
Sales and marketing	6,683,766
Property operation and maintenance	3,189,458
Property taxes	518,956
Management fees	1,792,486
Ground lease	542,381
Building fire and casualty insurance	1,184,647
Depreciation	3,051,077
Loss on disposal of fixed assets	3,832,473
Total operating expenses	62,606,197
Loss from operations	(17,794,041		)
Interest expense, net	7,714,974
Change in fair value of derivative financial instrument	198,618
Other expense	56,764
Net loss	$	(25,764,397	)

Members’ deficit, beginning of year	$	(1,883,767	)
Members’ contribution	33,748,602
Net Loss	(25,764,397		)
Members’ capital, end of year	$	6,100,438

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

W2005 Kapalua/Gengate Hotel Holdings, LLC

Consolidated Statement of Cash Flows

For the Year Ended December 31, 2007

Cash flows from operating activities
Net loss	$	(25,764,397	)
Adjustments to reconcile net loss to net cash provided by operating activities:
Depreciation	3,051,077
Amortization of deferred financing cost	1,415,189
Loss on disposal of fixed assets	3,832,473
Change in fair value of derivative financial instrument	198,618
Changes in assets and liabilities
Accounts receivable, net	6,399,552
Inventories	561,033
Prepaid and other current assets	(105,258		)
Accounts payable and accrued expenses	15,445,780
Due to related parties	66,629
Due to hotel operator	(3,728,266		)
Advance deposits	3,094,765
Interest payable	2,156,028
Other liabilities	2,500,000
Net cash provided by operating activities	9,123,223

Cash flows from investing activities
Additions to property and equipment	(141,216,279		)
Proceeds from the disposal of fixed assets	586,365
Use of restricted cash to purchase property and equipment	2,060,254
Net cash used in investing activities	(138,569,660		)

Cash flows from financing activities
Cash contributions from members	26,248,602
Payment of financing costs	(4,280,793		)
Payment to acquire interest rate cap	(75,900		)
Payment on capital leases	(193,774		)
Payment of long-term debt	(160,500,000		)
Proceeds from borrowings under long-term debt	268,635,963
Net cash provided by financing activities	129,834,098
Net increase in cash and cash equivalents	387,661
Cash and cash equivalents, beginning of year	6,304,624
Cash and cash equivalents, end of year	$	6,692,285

Supplemental disclosure of cash flow information
Cash paid for interest	$	14,367,831

Non-cash financing and investing activities
Increase in retainage payable used for funding construction activities	$	3,616,939
Increase in accounts payable used for funding construction activities	$	7,067,983
Land contributed by member	$	7,500,000

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

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

1. Organization and Business

W2005 Kapalua/Gengate Hotel Holdings, LLC, a Delaware limited liability company (the “Company”), was formed on February 9, 2006 by and between Whitehall Street Global Real Estate Limited Partnership 2005; 51.4% (“Whitehall Street”), Whitehall Street Global Employee Fund 2005, LP; 13.6% (“Whitehall Employee Fund”), Gengate Kapalua Holdings GP, LLC; 0% (“GHGP”) and Gengate Kapalua Holdings, LLC; 35% (“GKH”).

The Company was formed to acquire and own The Ritz-Carlton Kapalua, (the “Hotel”) located on the Island of Maui, Hawaii. The Hotel is managed through an operating agreement (the “Management Agreement”) with the Ritz-Carlton Hotel Company, LLC (the “Hotel Operator”).

On March 27, 2007, MLP RCK LLC, a wholly owned subsidiary of Maui Land & Pineapple Company, Inc. (“MLPC”) acquired a 21.4286% interest in the Company. As a consequence initial members’ interest became the following: Whitehall Street; 40.4234%, Whitehall Employee Fund; 10.648%, GKH; 27.5%, and GHGP; 0%. Whitehall Street, Whitehall Employee Fund and GKH are designated as the Managing Members of the Company (together with MLPC and GHGP, the “Members”). Major decisions, as defined in the Second Amended and Restated Limited Liability Company Agreement (the “Company Agreement”), require the consent of either Whitehall Street or Whitehall Employee Fund, and either GKH or MLPC.

On July 1, 2007, the Hotel was closed for a major renovation and conversion of 250 hotel rooms into 107 condominium units. The Hotel was issued a temporary certificate of occupancy on December 28, 2007.

Allocation of Net Profit and Loss

Profits and losses are allocated pro rata among all Members in proportion to their percentage interests.

Distributions to Members

Distributions to Members are made pro rata in accordance with their relative percentage interests in the Company. No distributions have been made to the Members since inception of the Company.

2. Liquidity

The Hotel was closed on July 1, 2007 for an extensive renovation and residence conversion construction and reopened on December 28, 2007. For the year ended December 31, 2007, the Company incurred a net loss of $25,764,397 and had net cash inflows from operating activities of $9,123,223. At December 31, 2007, the Company had a deficit of $37,537,966 in working capital. Management believes that it will be able to continue to fund the operating needs with cash currently on hand, operations, sale of condominium units and additional debt or equity. As of March 28, 2008, Whitehall Street, Whitehall Employee Fund and GHGP have confirmed to the Company that they have the ability and intent to fund, if required, through at least March 31, 2009, an amount necessary to meet the Company’s obligations as they come due. The amount of cash to be funded is dependent upon the profitability of the hotel and management’s ability to close on condominium sales. MLPC has not confirmed its intent to fund the Company.

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

3. Summary of Significant Accounting Policies

Basis of Presentation

The accompanying consolidated financial statements include the accounts of W2005 Kapalua/Gengate Hotel Holdings, LLC and its wholly owned subsidiaries, W2005 Kapalua/Gengate Hotel Mezzanine, LLC (“W2005 Mezzanine”), and W2005 Kapalua/Gengate Hotel Realty, LLC, each a Delaware limited liability company. All significant intercompany transactions have been eliminated.

Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the balance sheet date and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Revenue Recognition

Hotel operating revenues are from room rentals, food and beverage sales, spa sales and retail merchandise sales. Revenues are recorded as services are rendered or goods are provided. Additionally, the Company collects sales, use, occupancy and similar taxes which are presented on a net basis (excluded from revenues) in the accompanying consolidated statement of operations. Amounts received in advance of guest stays are reflected as advance deposits in the accompanying balance sheet. These advance deposits are recognized as revenue when the service is provided. Interest expense is net of $474,337 of interest income.

Fair Value of Financial Instruments

Financial instruments include cash and cash equivalents, restricted cash, accounts receivable, accounts payable and accrued expenses, advance deposits and long-term obligations. The carrying amounts of financial instruments other than long-term obligations approximate fair value due to their short term nature. The Company’s mortgage loan obligations at fair value is advantageous (LIBOR plus 220 basis points) when compared with the February 2008 recapitalization, as described in Note 6, where variable rate debt increased to LIBOR plus 300 basis points. Such obligations approximate fair value. Other long term debt approximates market value, based upon rates currently available for similar instruments. The Company has an interest rate cap that is carried at fair value.

Cash and Cash Equivalents

The Company considers all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents.

Restricted Cash

Restricted cash represents amounts reserved for payment of real estate taxes, repairs, insurance and funding of furniture, fixture and equipment purchases. These restrictions are required under the Mortgage Loan and by the Management Agreement. In addition, and as part of the restricted cash balance, the Company has on deposit, $2,895,700 to support an irrevocable standby letter of credit expiring on July 26, 2008, which was used to obtain a building permit application.

Accounts Receivable

The Company records trade accounts receivable in the normal course of business related to the sale of products and services. The Company does not charge interest on past due accounts receivable. The allowance for doubtful accounts is based on review of specific accounts that have been identified as at risk for non-collection and prior collection history. Write-offs are evaluated on a case-by-case basis.

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

Concentration of Credit Risk

A significant portion of the Company’s cash and cash equivalents are maintained at various financial institutions in amounts that exceed federally insured limits. The Company has not experienced any losses and believes it is not exposed to significant credit risk in this area.

Inventories

Inventories consist primarily of food, beverages and merchandise held for resale and operating supplies. Amounts are valued on a first in first out basis.

Derivative Financial Instruments

As of December 31, 2007, the Company had an interest rate cap which is a derivative financial instrument. This derivative is $4,400 and is recorded on the consolidated balance sheet at fair value. The interest rate cap was not designated as a hedging instrument; therefore changes in the fair value of this instrument are recognized in the results of operations in the period that the change occurs.

Property and Equipment

Property and equipment are carried at cost, net of accumulated depreciation. Routine repairs and maintenance are expensed as incurred. Expenditures that improve the functionality of the related equipment or extend its useful life are capitalized. When property and equipment are retired or otherwise disposed, the related gain or loss is included in the determination of income. Depreciation is calculated on the straight-line method based on the following useful lives:

Land improvements		20 years
Buildings and improvements		39 years
Furniture, fixtures and equipment		3-7 years

Deferred Financing Costs

Costs incurred in conjunction with obtaining the debt instruments are included as deferred financing costs. Deferred financing costs are amortized over the respective lives of the applicable debt issues on a straight-line basis, which approximates the effective interest method as a component of interest expense.

Long-lived Assets

The Company evaluates potential impairment of long-lived assets in accordance with SFAS No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets, which requires the Company to (a) recognize an impairment loss if the carrying amount of a long-lived asset is more than the value of its undiscounted projected cash flows and (b) measure an impairment loss as the difference between the carrying amount and fair value of the asset. No impairments of long-lived assets occurred during the year ended December 31, 2007.

Income Taxes

The Company has elected to be a limited liability company for federal tax purposes. Limited liability companies are not taxable entities under provisions of the Internal Revenue Code and, accordingly, the accompanying consolidated financial statements do not reflect a provision for

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

federal or state income taxes. The tax effects of the Company’s transactions are the responsibility of the Members.

4. Property and Equipment

Property and equipment consist of the following at December 31, 2007:

Land	$	33,444,471
Building and improvements	164,971,293
Furniture, fixtures and equipment	2,130,635
	200,546,399
Less accumulated depreciation	(6,742,631		)
	193,803,768
Construction in progress	135,900,627
Net property and equipment	$	329,704,395

On March 27, 2007, the Company purchased 49 acres of land (“Hotel land”) underlying the Hotel condominium and amenities from MLPC for $32.5 million plus closing costs. The acquisition was financed through a debt facility provided by Lehman Brothers Holdings, Inc. The Company was, prior to acquisition, the lessee under a long-term ground lease with MLPC.

During 2007, the Company began construction of 107 condominium units by renovating 250 hotel rooms in four low-rise clusters adjacent to the Hotel. All condominiums will be offered for sale in 2008. Construction in progress includes capitalized interest costs of $10,521,768 and taxes of $518,956 for the year ended December 31, 2007.

Included in furnitures, fixtures and equipment is approximately $152,000 of equipment under capital leases where payments are due through 2009.

Depreciation expense for the year ended December 31, 2007 was $3,051,077.

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

5. Accounts Payable and Accrued Expenses

Accounts payable and accrued expenses consist of the following at December 31, 2007:

Accounts payable	$	19,459,590
Accrued payroll, payroll taxes and benefits	2,894,453
Accrued real estate and personal property taxes	114,407
Accrued sales taxes	13,805
Accrued other - Hotel	3,463,739
Other	415,354
Total	$	26,361,349

6. Long-Term Debt

Long-term debt at December 31, 2007 is as follows:

Luxury loan (a)	$	20,000,000
Mortgage loan (b)	268,635,963
	288,635,963
Less current maturities	—
	$	288,635,963

(a) On March 13, 2006, the Company entered into a $20,000,000 term loan agreement (the “Luxury Loan”) maturing April 13, 2011 with Luxury Finance LLC. The Luxury Loan bears interest at an annual rate equal to prime rate plus 350 basis points (8.53% at December 31, 2007).

(b) On March 13, 2006, the Company entered into a $180,500,000 term loan agreement (the “Lehman Loan”) initially maturing April 1, 2008 with Lehman Brothers Holdings Inc. (“Lehman”). The Lehman Loan provided for two (2) extensions of one (1) year each, at the Company’s option. Monthly payments of interest commenced on May 9, 2006. The loan was collateralized by the first deed of trust on the Hotel. On March 27, 2007, this loan was repaid.

On March 27, 2007, the Company entered into a $271,700,000 mortgage loan (the “Mortgage Loan”) with Lehman to, among other matters,: (i) refinance the outstanding balance of the Lehman Loan, (ii) acquire the Hotel land, which was subject to a long-term ground lease, (iii) finance the Hotel renovation and condominium conversion, (iv) make deposits into reserve fund accounts for renovation holdbacks, condominium conversion holdbacks, operating deficit holdbacks, marketing cost holdbacks, interest holdbacks and tax holdbacks; and (v) construct the condominium units. The Mortgage Loan initially matures on February 27, 2009 (the “Maturity Date”). The term of the Mortgage Loan may be extended for

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

three additional periods of one (1) year each at the Company’s option. Interest is payable monthly at an annual rate equal to prime plus 220 basis points (7.23% at December 31, 2007). The Company has assigned to Lehman all of its rights, title and interest to receive any and all payments under an interest cap of 6% with a notional amount equal to the outstanding principal. The Company has granted Lehman first priority security interest in its equity interest in the Company.

On February 21, 2008, the Company, Whitehall Street, MLPC and Karim Alibhai, Manager-GHGP and GKH, entered into a Consent and First Amendment to the Mortgage Loan, (the “First Amendment Agreement”) with Lehman to evidence a $5,000,000 loan from Marriott International Corporation to the Company. In addition, the Company received $6,850,000 as a short term loan from Whitehall Street and Whitehall Employee Fund and deposited these funds in the equity reserve account as required by the First Amendment Agreement. The Company is required to deposit $10,000,000 in reserve accounts with Lehman to fund construction or deficits in operating the Hotel. As part of the First Amendment Agreement the interest rate was increased to LIBOR plus 300 basis points and principal payments in addition to monthly interest-only payments are required as follows:

An amount equal to the greater of the net sale proceeds per sold condominium unit or the release price of the unit stipulated in the First Amendment Agreement is to be used to increase certain loan reserves to $55,000,000, then to reduce the principal balance on the Mortgage Loan to $150,000,000. Subsequent proceeds of approximately $15,000,000 are to be used to repay all or defined amounts of other indebtedness and then the remainder to the Company.

7. Commitments and Contingencies

The Company may, from time-to-time, be a party to various lawsuits arising in the ordinary course of business. Management believes the Company has adequate insurance coverage for all such matters and that, although the ultimate outcome of such claims cannot be ascertained, current pending and threatened claims are not expected to have a material adverse impact on the Company’s financial position, results of operations or cash flows.

8. Indemnifications and Guarantees

The Company has entered into certain indemnification agreements under which it could be required to make payments to third parties upon the occurrence or non-occurrence of certain future events. These indemnities primarily include 1) the indemnification of Members and officers of the Company for certain events or occurrences while a Member or officer is, or was serving, at the Company’s request in such capacity and 2) all claims and demands which may be asserted against the lenders under the Company’s loans for obligations to be performed by the Company. The duration of these indemnities generally is for the length of the contracts. These indemnifications generally do no limit the future payments the Company could be obligated to make. The Company has not recorded any liabilities for these indemnities in the accompanying financial statements, based upon the current facts and circumstances that would trigger a payment.

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

9. Related Party Transactions

The following related party transactions between the Company and various related entities could have a different financial statement impact had they occurred in arms length transactions between unrelated entities.

Services Agreement

On March 13, 2006, the Company entered into an Asset Management Agreement (“Services Agreement”) with Gencom Asset Management Company, LP, (“Gencom”), an affiliate of GHGP and GKH. The Company engaged Gencom to perform services related to the asset management and development of the Hotel. Under the terms of the Services Agreement, the Company is charged an asset management fee of one percent (1.00%) of hotel gross revenues payable monthly in arrears, during each fiscal year plus all out of pocket expenses (including reasonable travel expenses), disbursements and advances incurred by Gencom in connection with its duties under the Services Agreement. The Company incurred $448,121 in asset management fees for the year ended December 31, 2007 and this amount is included as a component of “Management fees” in the accompanying consolidated statement of operations. At December 31, 2007, there were no unpaid asset management fees.

Gencom receives a Development Management Fee in an amount equal to four percent (4%) of the aggregate hard and soft costs of renovation, exclusive of land costs. The Development Management Fee is payable monthly in arrears on the tenth business day following the month during the time in which the property is undergoing renovations. The Company incurred $1,467,371 in Development Management Fee for the year ended December 31, 2007 and this amount is included in construction in progress as a component of “Property and Equipment, net” in the accompanying consolidated balance sheet. At December 31, 2007, Development Management Fees of $896,101 were unpaid and were included as a component of “Due to related parties” in the accompanying consolidated balance sheet. In addition, during 2007 Gencom charged the Company approximately $787,000 for payroll and out of pocket expenses related to Gencom employees’ involvement in the Hotel renovation.

Gencom is also entitled to a Residential Unit Sales Fee upon the closing of the sale of a residential unit by the Company or one of its subsidiaries to any third party purchaser. The Residential Unit Sales Fee is equal to one percent (1%) of sales price paid and is payable when there is available cash flow or available capital event with proceeds sufficient to pay the fee. As of December 31, 2007 no residential unit sales have closed and thus the Company has not incurred any Residential Unit Sales Fees for the year ended December 31, 2007.

In addition, Gencom charged the Company a monthly accounting fee of $4,000 per month. The Company incurred $48,000 in accounting fees for the year ended December 31, 2007 and this amount is included as a component of “General and Administrative” expenses in the accompanying consolidated statement of operations. At December 31, 2007, $16,000 in accounting fees was unpaid and is included as a component of “Due to related parties” in the accompanying consolidated balance sheet.

Credit Enhancement and Other Fees

In accordance with the Company Agreement the Company pays a fee in connection with a loan guaranty or other recourse obligation provided or incurred by a Member (or an affiliate of a Member) to a lender providing financing to the Company. The Member providing or incurring a guaranty or other recourse obligation is paid by the Company a fee equal to two percent (2%) per annum of the $15 million guaranty or other recourse obligation. For the year ended December 31, 2007, the Company paid to Whitehall Street a credit enhancement fee of $300,000 which is reflected as a component of interest expense.

In conjunction with the land acquisition and debt modification on March 27, 2007, the Company paid to Gencom $686,165 for a transaction fee and paid Whitehall and its parent $1,169,880 as a loan origination fee. These amounts have been capitalized as deferred financing costs.

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

Operating Revenues

At December 31, 2007, $194,869 is included as a component of “accounts receivable, net of allowance for doubtful accounts” in the accompanying consolidated balance sheet for amounts that are due to the Company for unpaid room rentals as a result of various affiliates of the Company renting hotel rooms throughout the year.

10. Agreements with Hotel Manager

Hotel Management Agreement

The Hotel Operator manages the Hotel’s day to day operations. The Management Agreement with the Hotel Operator extends through December 31, 2041 and may be extended for an additional ten years (up to a total of three additional ten-year periods). Under the Management Agreement, the Company is required to pay the Hotel Operator a base management fee of 3.00% of hotel gross revenues during each fiscal year plus an incentive fee based on the operating profit of the Hotel, distributed to the Company and the Hotel Operator after 1) first, to the Company , until the Company has received an amount equal to the First Owner’s Priority (“FOP”) (FOP shall mean the sum of (i) seventeen million dollars ($17,000,000) plus (ii) ten and three-quarters percent (10.75%) of Total Capital Investment (calculated as of the last day of such fiscal year); 2) second, to the Hotel Operator and Company, on a pari passu basis, as follows: (a) eighty percent (80%) of First Available Cash Flow (“FACF”) (FACF shall mean an amount, with respect to each fiscal year or portion thereof during the term, equal to the excess, if any, of operating profit (up to an amount equal to Second Owner’s Priority (“SOP”) (SOP shall mean the sum of (i) nineteen million dollars ($19,000,000) plus (ii) ten and three-quarters percent (10.75%) of Total Capital Investment (calculated as of the last day of such fiscal year)) to Company and (b) twenty percent (20%) of FACF to the Hotel Operator, until the Company shall have received an amount equal to SOP; and 3) third, to the Hotel Operator and Company, on a pari passu basis, as follows: (a) seventy-five percent (75%) of Second Available Cash Flow (“SACF”) (SACF shall mean an amount, with respect to each fiscal year or portion thereof during the term, equal to the excess, if any, of operating profit over SOP) to Company and (b) twenty-five percent (25%) of SACF to the Hotel Operator.

The Company incurred $1,344,365 in base management fees for the year ended December 31, 2007, and this amount is included as a component of “Management fees” in the accompanying consolidated statement of operations. No incentive fees were incurred during this year. As of December 31, 2007, base management fees of $15,941 were unpaid and are included as a component of “Due to hotel operator” in the accompanying consolidated balance sheet.

Under the terms of the Management Agreement, the Hotel Operator employs and provides all employees for the Company’s hotel operations. While these employees are employees of the Hotel Operator and not legally employees of the Company, the Company pays the payroll costs and related taxes and benefits for these employees. The Company records the associated expense as an operating expense in the accompanying consolidated statement of operations.

Throughout the term of the Management Agreement, the Company is to have $22,500,000 in net worth calculated in accordance with generally accepted accounting principles. Accordingly, the Hotel Operator has the right to terminate the Management Agreement by written notice and seek other remedies permitted by law. To date, the Hotel Operator has not provided written or constructive notice to the Company.

W2005 Kapalua/Gengate Hotel Holdings, LLC

Notes to Consolidated Financial Statements

Marketing Agreement

The Company is required to pay a group marketing services fee of 1.00% of hotel gross revenues during each fiscal year. The Company incurred $448,122 in group marketing services fees for the period ended December 31, 2007, and this amount is included as a component of “Sales and marketing” in the accompanying consolidated statement of operations. As of December 31, 2007, $5,101 in group marketing services fees was unpaid and is included as a component of “Due to hotel operator” in the accompanying consolidated balance sheet.

Shared Expenses

The Hotel Operator has billed the Company for its share of certain goods and services acquired on group basis with other hotels managed by the Hotel Operator.

11. Subsequent Events

On December 15, 2007, the Company made a $12,000,000 capital call request pursuant to the Company Agreement. One of the Members, MLPC, declined to fund its $2,571,432 pro rata share (the “MLPC Share”).

In connection with the acquisition of the Hotel in 2006, a dispute arose regarding the amount of the closing date adjustment, between the Company and RCK Hawaii, LLC ( the “Seller”) & BCM/CHI Kapalua, INC. (the “Option Seller”), (collectively, the “Sellers”). On February 14, 2008, a settlement agreement was reached and as a result, the Sellers paid the Company $2,700,000 on February 19, 2008, in full satisfaction of the closing date adjustment. This amount is included in “Other receivable” in the accompanying balance sheet.

On February 21, 2008, the Company entered into a $5,000,000 loan agreement (the “FF&E loan”) maturing on February 21, 2011 with Marriott International Capital Corporation. The FF&E loan bears interest at LIBOR plus 350 basis points. The FF&E loan is collaterized by: (a) FF&E reserves, (b) all funds, money and other items of payment held or deposited in the FF&E reserves, (c) FF&E Records, and (d) to the extent not otherwise included above, all proceeds, products and profits of or in respect of any of the foregoing.

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