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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarter ended September 30, 2003 Commission file #0-50273
KAANAPALI LAND, LLC
(Exact name of registrant as specified in its charter)
Delaware 01-0731997
(State of organization) (IRS Employer Identification No.)
900 N. Michigan Ave., Chicago, IL 60611
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code 312/915-1987
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act). Yes [ ] 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 (the "Exchange Act") 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 [ ]
TABLE OF CONTENTS
PART I FINANCIAL INFORMATION
Item 1. Condensed Consolidated Financial Statements. . . . 3
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations . . . . . . . . . . . . . . . . . . . . 19
Item 4. Controls and Procedures. . . . . . . . . . . . . . 22
PART II OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . 23
PART I FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
KAANAPALI LAND, LLC
Condensed Consolidated Balance Sheets
September 30, 2003 and December 31, 2002
(Dollars in Thousands, except share data)
(Unaudited)
A S S E T S
-----------
September 30, December 31,
2003 2002
------------- -----------
Cash and cash equivalents . . . . . . $ 24,563 15,848
Receivables, net. . . . . . . . . . . 1,132 1,959
Property, net . . . . . . . . . . . . 112,439 142,832
Notes receivable, net of deferred
gain of $5,304. . . . . . . . . . . 26,062 --
Prepaid pension costs . . . . . . . . 24,648 25,905
Other assets. . . . . . . . . . . . . 2,619 3,082
-------- --------
$191,463 189,626
======== ========
L I A B I L I T I E S
---------------------
Accounts payable and accrued expenses $ 10,375 10,202
Deferred income taxes . . . . . . . . 12,954 9,143
Accumulated postretirement benefit
obligation. . . . . . . . . . . . . 14,723 23,560
Other liabilities . . . . . . . . . . 53,044 51,705
Mortgage and other notes payable. . . 11,165 11,248
Investment in unconsolidated entities,
at equity . . . . . . . . . . . . . -- 61,273
-------- --------
Total liabilities . . . . . . 102,261 167,131
Commitments and contingencies
S T O C K H O L D E R S' E Q U I T Y
-------------------------------------
Common stock, at 9/30/03 and 12/31/02
non par value (shares authorized -
4,500,000; shares issued
1,863,213.49) . . . . . . . . . . -- --
Additional paid-in capital. . . . . . 5,357 5,357
Accumulated earnings. . . . . . . . . 83,845 17,138
-------- --------
Total stockholders' equity. 89,202 22,495
-------- --------
$191,463 189,626
======== ========
The accompanying notes are an integral part
of the condensed consolidated financial statements.
KAANAPALI LAND, LLC
Condensed Statements of Operations
Three and Nine Months Ended September 30, 2003 and 2002
(Unaudited)
(Dollars in Thousands, except share data)
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ------------------
2003 2002 2003 2002
-------- -------- -------- --------
Revenues:
Sales . . . . . . . . . . . $ 15,821 3,302 20,427 7,783
Interest and
other income. . . . . . . 330 7 511 21
-------- -------- -------- --------
16,151 3,309 20,938 7,804
-------- -------- -------- --------
Cost and expenses:
Cost of sales . . . . . . . 1,579 (284) 4,548 3,380
Reduction of post-
retirement benefit
obligation. . . . . . . . (2,425) (2,380) (7,277) (7,140)
Selling, general and
administrative. . . . . . 5,206 3,126 12,081 9,378
Interest. . . . . . . . . . 287 411 869 1,986
Depreciation and
amortization. . . . . . . 286 749 880 2,247
Restructuring costs . . . . -- 903 -- 2,139
-------- -------- -------- --------
4,933 2,525 11,101 11,990
-------- -------- -------- --------
Operating income (loss) . . . 11,218 784 9,837 (4,186)
Equity in income (loss)
from unconsolidated
investments . . . . . . . (110) (656) (402) 5,835
-------- -------- -------- --------
Income from continuing
operations before
gain on disposition
of unconsolidated
investment and
income taxes. . . . . . . 11,108 128 9,435 1,649
Gain on disposition
of unconsolidated
investment. . . . . . . . 61,083 -- 61,083 --
-------- -------- -------- --------
Income before
income taxes. . . . . . . 72,191 128 70,518 1,649
Income tax (expense). . . . (4,350) (728) (3,811) (2,425)
-------- -------- -------- --------
Net income (loss) . . . $ 67,841 (600) 66,707 (776)
======== ======== ======== ========
Earnings per share:
Net income (loss) . . . . . $ 36.41 (150) 35.81 (194)
======== ======== ======== ========
The accompanying condensed notes are an integral part
of the condensed consolidated financial statements.
KAANAPALI LAND, LLC
Condensed Consolidated Statements of Cash Flows
Nine Months Ended September 30, 2003 and 2002
(Unaudited)
(Dollars in Thousands)
2003 2002
-------- --------
Net cash used in operating activities . . $ (8,045) (9,482)
Cash flows from investing activities:
Property additions. . . . . . . . . . . (685) (135)
Property sales, net . . . . . . . . . . 17,966 1
Distributions from investments in
unconsolidated entities . . . . . . . -- 10,475
Contributions to investments in
unconsolidated entities . . . . . . . (438) --
-------- --------
Net cash provided by investing
activities. . . . . . . . . . . . . . . 16,843 10,341
Cash flows from financing activities:
Net repayments of debt. . . . . . . . . (83) (79)
-------- --------
Net cash used in financing activities . (83) (79)
-------- --------
Net increase (decrease) in cash
and cash equivalents. . . . . . 8,715 780
Cash and cash equivalents at
beginning of period . . . . . . 15,848 19,988
-------- --------
Cash and cash equivalents at
end of period . . . . . . . . . $ 24,563 20,768
======== ========
Supplemental disclosure of cash
flow information:
Cash paid for interest. . . . . . . . . $ 485 678
======== ========
Non-cash investing and financing activities:
Note receivable received in sale
of Lot 2. . . . . . . . . . . . . . . $ 14,366 --
Deferred gain . . . . . . . . . . . . . (5,304) --
-------- --------
9,062 --
Note receivable received in sale
of Lot 4. . . . . . . . . . . . . . . 17,000 --
-------- --------
Note receivable, net. . . . . . . . . . $ 26,062 --
======== ========
The accompanying notes are an integral part
of the condensed consolidated financial statements.
KAANAPALI LAND, LLC
Notes to Condensed Consolidated Financial Statements
(Unaudited)
(Dollars in Thousands)
The accompanying unaudited condensed consolidated financial statements
are prepared in accordance with accounting principles generally accepted in
the United States for interim financial information and with the
instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly,
they do not include all of the information and footnotes required by
accounting principles generally accepted in the United States for complete
financial statements, and therefore, should be read in conjunction with the
Company's Annual Report on Form 10, as amended, (File No. 0-50273) for the
year ended December 31, 2002.
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND BASIS OF ACCOUNTING
Kaanapali Land, LLC ("Kaanapali Land"), a Delaware limited liability
company is the reorganized entity resulting from the Joint Plan of
Reorganization of Amfac Hawaii, LLC ("AHI"), Certain of Its Subsidiaries
(together with AHI, the "AHI Debtors") and FHT Corporation ("FHTC " and,
together with the AHI Debtors, the "Debtors") under Chapter 11 of the
Bankruptcy Code, dated June 11, 2002 (as amended, the "Plan").
The Plan was confirmed by the Bankruptcy Court by orders dated
July 29, 2002 and October 30, 2002 (collectively, the "Order") and became
effective November 13, 2002 (the "Plan Effective Date"). Kaanapali Land
continues to work toward completion of the various requirements of the Plan
and to implement the restructuring transactions that are contemplated to be
effected under the Plan, including, among other things, the resolution of
all outstanding claims and distributions on all claims that are allowed
under the Plan.
The assets and liabilities of Kaanapali Land are essentially the same
as those of Northbrook and its subsidiaries and, thus, Northbrook is
considered to be the predecessor entity of Kaanapali Land.
The accompanying condensed consolidated financial statements include
the accounts of Kaanapali Land and all of its subsidiaries and its
predecessor (collectively, the "Company"). All significant intercompany
transactions and balances have been eliminated in consolidation.
The Company's continuing operations are in three business segments -
agriculture, property and golf. The Golf segment includes that of Amfac
Property Investment Corp. ("APIC"), an equity investee which owned the
Royal Kaanapali Golf Courses. On March 19, 2002 a receiver was appointed
to operate such golf courses and on September 9, 2003 the settlement
agreement with the Employees' Retirement System of the State of Hawaii
("ERS") was consummated, which resulted in APIC on longer having an
ownership interest in such golf courses, as described in Note 8. After the
consummation of such transaction, the Golf segment consists entirely of the
Company's investment in the Waikele Golf Club on Oahu.
PROPERTY
The Company's principal land holdings are on the island of Maui. The
Company has determined, based on its current projections for the
development and/or disposition of its land holdings, that the land holdings
are not currently recorded in an amount in excess of proceeds that the
Company expects that it will ultimately obtain from the disposition
thereof.
USE OF ESTIMATES
The financial statements have been prepared in conformity with
accounting principles generally accepted in the United States, which
require management to make estimates and assumptions that affect the
reported amounts of assets and liabilities (including disclosure of
contingent assets and liabilities) at the date of the financial statements
and the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
In the opinion of management, all adjustments necessary for a fair
statement of the financial position and results of operations for the
interim periods presented have been included in these financial statements
and are of a normal and recurring nature.
Operating results for the three and nine months ended September 30,
2003 are not necessarily indicative of the results that may be achieved in
future periods.
RECLASSIFICATIONS
Certain amounts in the 2002 consolidated financial statements have
been reclassified to conform to the 2003 presentation.
(2) INVESTMENTS
The amounts recorded as investment in unconsolidated entities relate
to the Company's direct and former indirect investment in APIC.
Kaanapali Land remains obligated under certain circumstances to fund
costs related to the settlement agreement with the ERS described below.
Through the date of this report, the Company has funded approximately
$1,525 toward these obligations, a portion of which is anticipated to be
reimbursed by AFLP under the Funding Agreement entered into by Kaanapali
Land, AFLP and certain other affiliated entities in October 2002. On
September 9, 2003, the Company and APIC consummated their settlement
agreement with the ERS. As a consequence of such transaction, the Company
and APIC no longer have any interest in or obligation to the Royal
Kaanapali Golf Courses. An additional approximate $1,200 will be paid or
distributed to former bargaining unit and non-bargaining unit employees
during the fourth quarter of 2003 and 2004 as a result of the consummation
of the settlement agreement. As a result of the consummation of the
settlement, the Company no longer has any obligations related to the ERS
and thus recorded a gain on disposition of its investment for financial
reporting purposes to the extent of its investment in unconsolidated
entities during the third quarter of 2003.
See Footnote 8 for additional discussion.
(3) LAND SALES AND MORTGAGES RECEIVABLE
On January 31, 2003, an option to purchase Lot 2 (an approximate 11.5
acre site in the North Beach area of Kaanapali) was exercised. A non-
refundable payment was made for $2 million (before closing costs and
prorations). The remainder of the purchase price is secured by a note due
March 31, 2004 for approximately $14,000, a portion of which is subject to
adjustment based on the number of units approved for construction on the
site.
The Company is recording the sale under the cost recovery method of
accounting. The full note has been recorded, offset by the entire deferred
gain which will be recognized once cash receipts from the purchaser exceed
the cost of the property.
On August 5, 2003, the Company closed the sale of Lot 4 (an
approximate 40 acre site in the North Beach area of Kaanapali) for a
purchase price of $33,000. $16,000 of the purchase price was paid in cash
(before closing costs and prorations) at closing and the balance was
delivered in the form of a promissory note in the original principal amount
of $17,000. The promissory note is secured by a first mortgage encumbering
Lot 4, and it is due on the earlier to occur of (i) August 4, 2006, or (ii)
sixty days following the issuance by the County of Maui of certain
entitlements for the development of any portion of Lot 4. The note bears
interest at the rate of 8% per annum from August 5, 2003 through and
including August 4, 2005. From August 5, 2005 until paid, the note bears
interest at the rate of 10% per annum. Interest payments are to be paid
monthly. The Company recognized approximately $13,000 of gain related to
this transaction for financial reporting purposes during the third quarter
of 2003.
Certain access easement rights have been granted to the purchaser over
the adjacent parcel (Lot 3) that is owned by the Company and the Company
has agreed to pay a portion of the cost of the access road. The Company
has also agreed to make available to the purchaser up to 55,000 cubic yards
of fill to be used on Lot 4 or Lot 3 if the purchaser exercises its option,
as discussed below. Under certain circumstances, an affiliate of Kaanapali
Land may be required to make additional land fill available to the
purchaser.
At closing, the Company also granted to the purchaser an option to
purchase Lot 3, which expires two years after the closing date on Lot 4.
The option price consists of a base price of $22,500, which is subject to
potential adjustment upward depending on the number of units permitted to
be developed on Lots 3 and 4, and also an adjustment for inflation if the
option is exercised after January 1, 2005. There can be no assurance that
such option will be exercised or the timing thereof.
(4) MORTGAGE AND OTHER NOTES PAYABLE
Each component of the Company's mortgage and other notes payable was
entered into by the separate operating subsidiaries of the Company and
generally places certain specified restrictions on the transfer of an
individual subsidiary's assets, as well as on the use of proceeds generated
from operations and the sales of such assets.
The Waikele Golf Course debt, secured by the Waikele Golf Course, had
an original principal balance of $8,500, an interest rate of LIBOR plus
3.75%, principal amortization based on a 25-year amortization schedule and
a maturity date of December 1, 2006. The loan has certain cash flow and
other financial covenants.
In December 1996, Oahu MS, a wholly-owned subsidiary of Kaanapali
Land, obtained a $10,000 loan facility from City Bank. The loan, which had
been extended through December 1, 2000 with certain modifications, is
secured by a mortgage on certain property at the Oahu Sugar mill-site (the
sugar plantation was closed in 1995). Such extended loan bore interest at
the bank's base rate plus 1.25%. In January 2001, Oahu MS reached an
agreement with the Bank for an extension until December 1, 2001 with a
principal payment of $150 upon execution of the agreement leaving a
remaining outstanding principal balance of $2,850. On December 1, 2001,
Oahu MS reached an agreement with the bank for an additional extension
until March 1, 2002. On June 28, 2002, City Bank and Oahu MS entered into
an agreement extending the loan for an additional nine months to December
1, 2002 at City Bank's base rate plus 2%. On the maturity date, Oahu MS
did not pay the balance due. On January 2, 2003, City Bank filed a
complaint for foreclosure. In January 2003, Oahu MS and City Bank
commenced settlement discussions. Although City Bank argued that no
agreement has been reached between the two parties, Oahu MS contended that
a valid and enforceable settlement agreement had been reached as to all
material terms providing for a modification and extension of the terms of
the loan in question. City Bank terminated negotiations regarding the form
of the Loan Modification and Extension Agreement on March 10, 2003. As a
consequence of court-supervised mediation during the period commencing in
August 2003, Oahu MS and Oahu Sugar have entered into a settlement of
certain litigation with City Bank and certain other parties that would, if
consummated, include the settlement of all matters concerning the loan and
would result in Oahu MS no longer having title to the property. See
footnote (8) for a more detailed discussion of such settlement. Oahu MS
does not have the funds necessary to pay the remaining balance of the loan
without sale of the remaining mill site land. If such loan cannot be
further extended, it would likely result in Oahu MS no longer having an
ownership interest in the property. Without regard to any offsetting
claims asserted by Oahu MS as described above, as this mortgage loan is a
recourse obligation of Oahu MS, any deficiency remaining on such loan upon
consummation of a foreclosure would continue to be a liability of Oahu MS.
The net book value of the mill site land securing the loan is less than the
outstanding balance of the indebtedness.
(5) RENTAL ARRANGEMENTS
The Company has rented, as lessee, various land, facilities and
equipment under operating leases. Most land leases provided for renewal
options and minimum rentals plus contingent payments based on revenues or
profits. Certain leases where Debtors were the lessee were rejected
pursuant to the Plan, which reduced any pre-Petition Date and prospective
liability of the Company for them to claims that were allowed under the
Plan, if entitled to distributions of cash or Class A Shares of Kaanapali
Land as provided in the Plan.
(6) EMPLOYEE BENEFIT PLANS
(a) PENSION PLANS
The Company participates in a defined benefit pension plan that covers
substantially all its eligible employees. The Plan is sponsored and
maintained by Kaanapali Land in conjunction with other plans providing
benefits to employees of Kaanapali Land and its affiliates.
(b) RETIREE HEALTH AND LIFE INSURANCE BENEFITS
In addition to providing pension benefits, AHI and certain of its
affiliates currently provide certain healthcare and life insurance benefits
to certain eligible retired employees. Where such benefits are offered,
substantially all employees may become eligible for such benefits if they
reach a specified retirement age while employed by AHI (or the applicable
affiliate) and if they meet a certain length of service criteria. The
postretirement healthcare plan is contributory and contains cost-sharing
features such as deductibles and copayments. However, these features, as
they apply to bargaining unit retirees, are subject to collective
bargaining provisions of a labor contract between each such entity and the
International Longshoremen's & Warehousemen's Union as they may have been
amended or settled through agreements or memoranda executed with the union
at about the time each operating facility was closed. The postretirement
life insurance plan is non-contributory.
Each relevant entity continues to fund benefit costs for both plans on
a pay-as-you-go basis, and each entity expects to continue funding its
post-retirement health care obligations until the end of 2004, which is a
date on or after the date when its legal "Maintenance of Effort" obligation
relative to the health care portion expires. These entities believe that
they generally have no obligation to continue the post-retirement life
insurance benefits, and most intend to terminate such benefits effective at
the end of 2003. Kaanapali Land has not assumed any obligation to fund the
cost of these benefits on behalf of any of its affiliates. Unrecognized
net actuarial gain related to the reduction in the post-retirement life and
medical benefits as a result of the expected termination of the benefits at
the end of 2003 and 2004, respectively, is being recognized ratably as a
reduction of costs at September 30, 2003.
(7) INCOME TAXES
U.S. Federal tax return examinations have been completed for years
through 1997. The Company believes adequate provisions for income tax have
been recorded for all years. The Company's Federal tax returns for the
periods 1998-2000 are currently being examined. The statutes of
limitations with respect to the Company's tax returns for 1998 through 2002
remain open.
(8) COMMITMENTS AND CONTINGENCIES
Material legal proceedings of the Company are described below. Unless
otherwise noted, the parties adverse to the Company in the legal
proceedings described below have not made a claim for damages in a
liquidated amount and/or the Company believes that it would be speculative
to attempt to determine the Company's exposure relative thereto, and as a
consequence believes that an estimate of the range of potential loss cannot
be made. In proceedings filed prior to the Petition Date where a Debtor is
a defendant, such proceedings were stayed as against such Debtor by the
filing of the Reorganization Case. Those proceedings may now continue
since the Plan Effective Date has occurred so long as the plaintiffs
therein filed timely claims under the Plan. However, any judgments
rendered therein would be subject to the distribution provisions of the
Plan, which would in most cases result in the entitlement of such claims to
proceeds that are substantially less than the face amount of such
judgments. Any claims that were not filed on a timely basis under the Plan
have been discharged by the Bankruptcy Court and thus the underlying legal
proceedings should not result in any liability to the Debtors. Proceedings
against subsidiaries or affiliates of Kaanapali Land that are not Debtors
were not stayed by the Plan and may proceed.
On September 9, 2003, the Company and APIC consummated their
settlement agreement with the ERS. As a consequence of such transaction,
the Company and APIC no longer have any interest in or obligation to the
Royal Kaanapali Golf Courses. However, the Company has received certain
easements and other rights respecting certain portions of the golf course
land, including, among other things, drainage rights, utility line
easements, access rights and the right to reconfigure one of the golf holes
to accommodate the construction of a road to serve certain other land owned
by the Company. In 2003 the Company escrowed cash as required by the
settlement agreement in the approximate amount of $1,500 primarily to
satisfy certain debts of APIC to its former creditors and employees and to
ensure that funds are available for the reconfiguration of the golf hole as
described above. A portion of the amounts so funded are expected to be
reimbursed to the Company by AFLP. As discussed below, an additional
amount of approximately $1,200 will also be funded by the Company to
satisfy certain of its obligations relating to the settlement, other than
through the closing escrow, primarily relating to former employees, which
amount is expected to be paid, subject to certain conditions, during 2003
and 2004. The settlement also provides the Company and its affiliates and
related parties with various releases from the ERS and ensures that the ERS
will file no claims with the Bankruptcy Court.
In October 2002, in anticipation of the finalization of the ERS
Settlement Agreement, Kaanapali Land, AHI and certain related entities
entered into a Funding Agreement (the "Funding Agreement") with APIC, AFI
and AFI's parent, Amfac Finance Limited Partnership ("AFLP") that specifies
how amounts paid by Kaanapali Land as "Funding Entity" under such
settlement agreement will be treated. Kaanapali Land was willing to enter
into the Funding Agreement because, among other things, the ERS had
threatened to file a significant claim (in an amount that has not been
specified by ERS) in the Reorganization Case against the Borrowers who are
Debtors, which claim, if allowed in whole or significant part would likely
cause a material adverse impact on the Company and its prospects for
successfully implementing the Plan. Although the Debtors believe that any
such claim would be without merit, either in whole or substantial part,
there could be no assurance that it would not ultimately be allowed in a
significant amount. The existence of the Funding Agreement made it
possible to enter into the ERS Settlement Agreement, which in turn
significantly reduced, if not eliminated, the risk that any such claim
would be filed by ERS under the Plan. Generally, 1/6 of the funded amounts
shall be treated as capital contributions to AHI and Pioneer Mill and then
to APIC, on account of their respective stock ownership in APIC. The
remaining 5/6 of such amounts shall be treated as a loan by Kaanapali Land
to AFLP, which will then be treated as having been contributed by AFLP,
through AFI, to APIC on account of AFI's stock ownership in APIC. The
ability of AFLP to reimburse Kaanapali Land for such loan amounts depends
on the recovery by AFLP of a judgment it has obtained in certain litigation
that is unrelated to the Company. There can be no assurance that AFLP will
ultimately realize on such judgment or that it will obtain proceeds
relative thereto or otherwise in an amount sufficient to satisfy the loan
from Kaanapali Land. Due to uncertainty, no amounts have been recognized
in the condensed consolidated financial statements relating to these
potential recoveries.
Concurrently with the execution of the ERS Settlement Agreement, APIC
entered into a mutual release agreement with the union representing the
bargaining unit employees employed by APIC at the time the receivership
commenced. Such agreement will result in certain amounts being paid or
distributed to such employees in return for releases by each of them and
the union in favor of APIC and the Company. APIC intends to handle its
former non-bargaining unit employees employed at the RKGC at such time in
substantially the same manner. The total amount estimated to be paid to
APIC's former employees as a consequence of the consummation of such
settlement is approximately $1,200 and is expected to be paid during the
fourth quarter of 2003 and during 2004.
In connection with the Reorganization Case, the ERS, the Debtors and
APIC, during the third quarter of 2002, entered into a Stipulation approved
by the Bankruptcy Court, which as amended from time to time and approved by
the Bankruptcy Court since originally entered, among other things, (i)
provided for an extension of the bar date by which the ERS could file any
claims it may have had against any of the Debtors until five (5) business
days after written notice from the Debtors and (ii) reserved the rights of
the ERS and the Debtors with respect to objections that the ERS may have
had to the treatment of its claims under the Plan and further provided that
such objections, if asserted, would be resolved by the Bankruptcy Court
following confirmation of the Plan in the manner as set forth in the
Stipulation. The consummation of the ERS Settlement Agreement resulted in
the release and waiver of any claims that the ERS might have had against
the Debtors in the Reorganization Case.
On September 20, 1996, Oahu Sugar Company, LLC, successor by merger to
Oahu Sugar Company, Limited ("Oahu Sugar") and a subsidiary of Kaanapali
Land, filed a lawsuit (the "First Arakaki Case"), Oahu Sugar v. Walter
Arakaki and Steve Swift, Case No. 96-3880-09, in the Circuit Court of the
First Circuit, State of Hawaii. This case is now the subject of a
potential settlement, as described below. In the lawsuit, Oahu Sugar,
which is a Non-Debtor AHI Subsidiary, alleged that it entered into an
agreement to sell to defendants certain sugar cane processing equipment at
Oahu Sugar's sugar cane mill in Waipahu. Oahu Sugar alleged that
defendants failed to timely dismantle and remove the equipment, as required
by the agreement, and that defendants were obligated to pay Oahu Sugar rent
for the area occupied by the equipment beyond the time provided for by the
parties. Oahu Sugar further alleged that it provided notice to defendants
that Oahu Sugar was entitled to treat the equipment as abandoned property
and to sell the equipment, because the equipment had not been removed from
the property in a timely fashion, as required by the parties' agreement.
In its complaint, Oahu Sugar sought, among other things, declaratory relief
that it was entitled to treat the equipment as abandoned, damages for
breach of contract, and rent under an unjust enrichment theory.
Defendants filed an answer, as amended, denying the substantive
allegations of Oahu Sugar's complaint and asserting various affirmative
defenses. In addition, the defendants filed a seven-count counterclaim
against Oahu Sugar. In the counterclaim, defendants alleged, among other
things, that Oahu Sugar failed to make the equipment available for removal
on a timely basis, and that Oahu Sugar otherwise improperly interfered with
defendants' plans for the removal and subsequent sale of the equipment. In
the counterclaim, defendants sought, among other things, general, special
and punitive damages, attorneys' fees, costs, and such other relief as the
Court may have deemed appropriate.
Oahu Sugar's declaratory relief claim was settled in advance of trial.
Oahu Sugar obtained dismissals and directed verdicts on six of defendants'
claims. The remaining portions of the complaint and counterclaim proceeded
to a jury trial and verdict. On December 2, 1999, the jury denied Oahu
Sugar relief on its remaining claims and awarded the defendants
approximately $2.6 million in damages on their counterclaim. On March 2,
2000, the trial court entered a judgment against Oahu Sugar for the $2.6
million in damages awarded by the jury. In addition, the trial court
awarded counterclaimants $751 thousand in attorneys' fees, $28 thousand in
costs and $866 thousand in prejudgment interest. Oahu Sugar's post trial
motions for judgment as a matter of law and for a new trial were denied.
Oahu Sugar filed a notice of appeal. Since no appeal bond was obtained,
the defendants began efforts to collect the amounts awarded to them.
Defendants caused garnishee summons to be issued to various affiliated and
unaffiliated entities. The defendants scheduled a debtor's examination for
August 23, 2000 which was not concluded. The Hawaii Supreme Court also
scheduled the case for an appellate conference and mediation that was
unsuccessful. Then, on January 3, 2001, the Hawaii Supreme Court entered
an order dismissing the appeal. The Supreme Court held that it lacked
jurisdiction over the appeal because the judgment entered on March 2, 2000
was legally defective in that it did not identify the claim for which
judgment was entered or dismiss all of the other claims and counterclaims
of the parties. In light of the order of the Hawaii Supreme Court, the
parties filed legal briefs before the trial court to have the court
determine, among other things, whether a corrected judgment consistent with
the jury verdict may be entered as of March 2, 2000 or a new judgment order
is required. After hearing the arguments of the parties, on March 19,
2001, the trial court ruled that it would not enter a corrected judgment as
of March 2, 2000 and that a new judgment order will be required. On April
12, 2001, the court entered the new judgment order on the counterclaims
providing for the payment of approximately $2.6 million in damages, $730
thousand in attorneys' fees, $28 thousand in costs, $867 thousand in
prejudgment interest, and additional prejudgment interest from January 20,
2000 through April 12, 2001. From and after entry of the order, post-
judgment interest will accrue on the unpaid balance at the statutory rate
of ten percent per annum until paid in full. Oahu Sugar is continuing to
pursue its appeal in the First Arakaki Case and the opposing side has filed
a cross appeal seeking further relief on any potential retrial of the
matter. The case is fully briefed and awaits a decision by the Hawaii
Supreme Court. Oahu Sugar continues to believe that it is entitled to
affirmative relief on its complaint and that it has meritorious defenses to
the counterclaim that it has pursued on appeal. The Company, however, can
provide no assurances that it will be successful in obtaining affirmative
relief or overturning the verdict against Oahu Sugar. This verdict, if
upheld, could have a material adverse effect on the Oahu Sugar's financial
condition. However, the First Arakaki Case is subject to a potential
overall settlement with the Second Arakaki Case and the City Bank
Foreclosure case, each as described below.
On or about December 15, 2000, Oahu Sugar and Oahu MS Development
Corp. ("Oahu MS", f/k/a Amfac Property Development Corp.), subsidiaries of
Kaanapali Land, among others, were named in a lawsuit (the "Second Arakaki
Case") entitled Walter Arakaki and Steve Swift v. Oahu Sugar Company,
Limited et al, Civil No. 00-1-3817-12, and filed in the Circuit Court of
the First Circuit of Hawaii. This case is also the subject of a potential
settlement as described below. As such settlement has not yet been
consummated, the case is proceeding and is set for trial in April 2004.
In the complaint, as amended, plaintiffs seek a declaration that certain
conveyances of real estate made by Oahu Sugar or Oahu MS, since December
1996, were allegedly fraudulent transfers made in violation of the common
law, the Hawaii fraudulent transfer act, and rights which they claim arose
in connection with the claims they filed in the First Arakaki Case.
Plaintiffs seek, among other things, injunctive and declaratory relief,
compensatory damages, punitive damages, orders of attachment against sales
proceeds, voidance of certain transfers, foreclosure and other remedies in
connection with various transfers of real estate made by Oahu Sugar to Oahu
MS, the Young Men's Christian Association of Honolulu ("YMCA"), and the
Filipino Community Center, Inc. ("FCC"), among others, all over the years
1996-2000. Although the amount of damages sought in the Second Arakaki
Case are unspecified, the case arises in connection with the plaintiffs'
efforts to realize on their judgment in the First Arakaki Case described
above. The YMCA and FCC have also been named defendants in this action and
have filed cross-claims for relief against Oahu Sugar and Oahu MS for
alleged breach of warranty of title, indemnity and contribution in
connection with their respective transactions, and seeking, among other
things, damages, attorneys' fees, costs, and prejudgment interest. Oahu
Sugar and Oahu MS have filed answers to the complaint, as amended, and the
cross-claims. On May 3, 2001, plaintiffs filed an amended complaint
dropping the remedy of foreclosure in connection with certain property
transferred to the YMCA and adding various allegations including, without
limitation, allegations regarding the final judgment entered in the
underlying matter.
The Company believes that Oahu Sugar and Oahu MS have meritorious
defenses to the above referenced pending lawsuits that continue to be
pending and they intend to defend themselves vigorously. However, as Oahu
Sugar is substantially without assets to satisfy any material existing or
future judgment and Oahu MS assets would also be insufficient for such
purpose, there can be no assurances that these cases (or any of them), if
adjudicated in a manner adverse to Oahu Sugar and/or Oahu MS, will not have
a material adverse effect on the financial condition of Oahu Sugar or Oahu
MS.
On October 23, 2002, Oahu MS was named in a civil action entitled City
Bank v. Amfac Property Development Corp., et al, pending in the Circuit
Court of the First Circuit, State of Hawaii, Civil No. 02-2494-10. In this
case, plaintiff sought injunctive relief and declaratory relief to cease
actions preventing City Bank and its consultants from gaining access to the
mortgaged property for environmental testing. In addition, the complaint
sought unspecified damages as may be shown at trial, costs, interest and
reasonable attorneys' fees, and such other further relief as the Court
would choose to award. A stipulation for dismissal without prejudice was
entered on July 9, 2003.
On January 2, 2003, Oahu MS was named in a civil action (the "City
Bank Foreclosure Case") entitled City Bank v. Amfac Property Development
Corp., et al, pending in the Circuit Court of the First Circuit, State of
Hawaii, Civil No. 03-1-0005-01. This case is also the subject of a
potential settlement as described below. In this case, plaintiff seeks
foreclosure of property owned by Oahu MS and encumbered by a mortgage in
favor of City Bank. City Bank made a $10.0 million loan to APDC under a
loan agreement dated December 18, 1996. City Bank claims that as a result
of alleged defaults, the entire amount of the presently unpaid obligations
under the loan documents is due and remains due and payable. It alleges
that the amount due as of December 2, 2002 is $2,873 plus a per diem charge
of $1 accruing on the unpaid principal, until payment is made and/or
interest changes, plus advances and expenses incurred in connection with
the action. In its complaint, City Bank seeks all amounts allegedly due
and owing to City Bank, together with legal interest thereafter to accrue
thereon and all advances, costs and attorneys' fees; a foreclosure decree
and sale; the appointment of a receiver to conduct an environmental audit
on a specified portion of the secured property and to collect rents being
paid on a portion of the mortgaged properties that consist of subleases on
improved land; the entry of an order of deficiency against APDC to the
extent such exists after sale with execution to follow thereon; and such
other relief as the court may deem proper. This action has been
consolidated with the Second Arakaki Case described above (together, the
"Consolidated Action"). Together with the Complaint, City Bank filed a
Motion for Appointment of Receiver alleging that it is entitled to have a
receiver appointed for an environmental audit on the mortgaged property and
collection of all net rental income assigned to City Bank. With regard to
the subleases, on June 28, 2002, Oahu MS and City Bank executed three
assignments of net rental income as security for the loan Oahu MS had
obtained from City Bank in 1996 ("Assignments"). Two of the Assignments
pertained to subleases under leases with the Trustees Under the Will and of
the Estate of Bernice Pauahi Bishop, Deceased, also known as Kamehameha
Schools ("Trustees"): Lease Number 24,710 ("Bougainville Assignment"), and
Lease Number 24,720 ("Halawa Assignment"). The third Assignment pertained
to subleases and leases with Queen's Hospital located on Bougainville
Industrial Park and the Halawa Light Industrial Park ("Queen's
Assignment"). The three Assignments gave City Bank certain rights in the
net rental income derived from each of the properties. This motion was
granted.
The parties to the City Bank Foreclosure Action commenced settlement
discussions in January 2003. Although City Bank argues that no agreement
has been reached between the two parties, Oahu MS contends that a valid and
enforceable settlement agreement has been reached as to all material terms
providing for a modification and extension of the terms of the loan in
question.
On May 12, 2003, City Bank filed a motion for partial summary judgment
against all defendants and interlocutory decree of foreclosure and for
entry of final judgment pursuant to Hawaii Rules of Civil Procedure 54(b),
seeking foreclosure on the Assignments. The motion was granted at the
hearing on June 16, 2003, although no order has yet been filed.
Soon thereafter, on June 5, 2003, Trustees filed a motion to intervene
in order to assert their interests in the rental income from the Halawa and
Bougainville Assignments. Trustees' Motion was granted on July 23, 2003,
and Trustees filed their answer to complaint in this action on July 24,
2003, with a Cross-Claim against Oahu MS. Recently, Trustees, City Bank
and Oahu MS reached agreement on the terms of a stipulation pertaining to
the receivership.
Mediation of the Consolidated Action and certain matters concerning
the receivership commenced in late August 2003. Trustees did not
participate in the mediation as their claims as intervenor had been
resolved through agreement with City Bank and their claims against Oahu MS
were to be determined through the arbitration proceedings described below.
However, Oahu Sugar did participate in the mediation in order that both
Oahu MS and its affiliates could achieve an overall settlement of the
claims surrounding both the Consolidated Action and the First Arakaki Case.
Mediation was unsuccessful at the initial session; however, the parties
continued to meet thereafter with the participation of the mediator and,
occasionally, the judge in the Consolidated Action. This resulted in a
settlement that was signed by the attorneys for all parties in late
September 2003. Such agreement provided the principal terms of the
settlement and stated that a more formal and detailed settlement agreement
would be drafted and signed.
In general, the terms of the settlement provide that Oahu MS will deed
the mill site property that is encumbered by the City Bank loan to City
Bank and will pay City Bank the amount of $100,000, plus certain expenses
of the transactions. YMCA and FCC will also contribute money to the
settlement, as well as Ticor Title Insurance Company, which had written
title insurance policies insuring City Bank, YMCA and FCC. City Bank will
provide the plaintiffs with what amounts to a participation in the property
and will perform any environmental cleanup required on the property. All
parties would be released from the claims brought against them in the
Consolidated Action and the First Arakaki Case, effective as of the date
that is 91 days after the property is deeded by Oahu MS to City Bank.
During the course of the negotiations of more detailed agreement, the
plaintiffs and City Bank began to dispute one of the terms of the original
settlement document. As a consequence, although we believe that a
settlement has been reached, the detailed settlement agreement has not been
finalized and executed and none of the transactions contemplated by the
settlement has occurred. In the event that the detailed settlement
agreement is not finalized and executed, the parties are likely to petition
the court for relief. However, there can be no assurance that the judge
will enforce the original settlement and it is possible that the settlement
will collapse and the Consolidated Action will continue to proceed toward
trial. In the event that the settlement is not consummated and the
Consolidated Action proceeds, there is substantial likelihood that Oahu MS
will exhaust its remaining assets during the prosecution of such Action.
Therefore, Oahu MS continues to explore its options in this regard.
On June 3, 2003, Trustees filed a Complaint against Oahu MS and City
Bank in TRUSTEES UNDER THE WILL AND THE ESTATE OF BERNICE PAUGAHI BISHOP,
DECEASED, ALSO KNOWN AS KAMEHAMEHA SCHOOLS V. AMFAC PROPERTY DEVELOPMENT
CORP., ET AL, in the Circuit Court of the First Circuit, State of Hawaii,
Civil No. 03-1-1154-05, seeking, among other things, cancellation of its
leases with APDC (the leases are the subject matter of the Halawa and
Bougainville Assignments discussed above), collection of unpaid net rents
on the leases, and appointment of a receiver to collect future subrents
under the subleases. Concurrent therewith, Trustees filed a motion for
appointment of receiver. Oahu MS filed its answer on June 24, 2003.
On July 2, 2003, Oahu MS filed a demand for arbitration of Trustees'
claims with the American Arbitration Association ("AAA"), and on July 3,
2003, APDC filed a motion to dismiss, or in the alternative, to stay
plaintiffs' complaint pending arbitration. On July 2, 2003, Trustees filed
a motion for partial summary judgment against all defendants. Both motions
were set to be heard on August 11, 2003. Prior to that date, however, the
Court informally advised the parties that it would likely enforce the
arbitration provisions contained in the leases, and the parties thereafter
reached agreement on a stipulation staying the case pending arbitration.
On or about February 23, 2001 Kekaha Sugar Co., Ltd., a subsidiary of
Kaanapali Land, received a letter from the Hawaii Department of Health
("HDOH") assigning the Kekaha Sugar Co., Ltd. site a high priority status
based on HDOH's review of available environmental data. In the letter,
HDOH identified five major areas of potential environmental concern
including the former wood treatment plant, the herbicide mixing plant, the
seed dipping plant, the settling pond, and the Kekaha Sugar Mill. While
setting forth specific concerns, the HDOH reserved the right to designate
still further areas of potential concern which might require further
investigation and possible remediation. HDOH further reserved the right to
modify its prioritization of the site should conditions warrant. The
assignment of the high priority status will likely result in a high degree
of oversight by the HDOH as the issues raised are studied and addressed.
Kekaha Sugar Co., Ltd. has responded to the letter. The United States
Environmental Protection Agency performed a visual inspection of the
property and indicated there will be some testing performed. HDOH has
performed some testing at the site and results are pending. Kekaha Sugar
Co., Ltd. is substantially without assets and further pursuit of this
matter by HDOH could have a material adverse effect on the financial
condition of Kekaha Sugar Co., Ltd.
On or about February 23, 2001, Lihue Plantation received a similar
letter from the HDOH assigning the Lihue Plantation site a high priority
status based on HDOH's review of available environmental data. In the
letter, HDOH identified four major areas of potential environmental concern
including the Lihue Plantation herbicide mixing plant, the seed dipping
plant, the settling pond and the Lihue Sugar Mill. While setting forth
specific concerns, the HDOH reserved the right to designate still further
areas of potential concern which might require further investigation and
possible remediation. HDOH further reserved the right to modify its
prioritization of the site should conditions warrant. As noted above, the
high priority assignment will likely result in a high degree of oversight
by the HDOH as the issues raised are studied and addressed. Lihue
Plantation is substantially without assets and further pursuit of this
matter by HDOH could have a material adverse effect on the financial
condition of LPCo.
Oahu MS has discovered chlorinated solvents in the groundwater at the
former Oahu Sugar Waipahu Sugar Mill site. The contamination does not
appear in high concentrations. Oahu MS' recommendation for remediation
using hydrogen-releasing compounds has been rejected by the HDOH. Oahu MS
may have to do further work at the site in the event that the settlement
agreement in the various Swift and Arakaki and City Bank cases outlined
above is not consummated. At this point, Oahu MS is unable to identify
with certainty the treatment options, if any, that the HDOH may require or
approve for the site, or the costs of same.
Pioneer Mill is engaged in an ongoing cleanup arising out of the
discovery of petroleum contamination found at the Pioneer Mill site. The
Pioneer Mill site has been assigned a high priority and the HDOH has shown
an interest in the environmental conditions relating to or arising out of
the former operations of Pioneer Mill. These issues will have to be
addressed as they are raised. Currently, Pioneer Mill has received a
report on the results of environmental testing conducted on the site by the
United States Environmental Protection Agency and HDOH. Pioneer Mill is
currently making arrangements to address the issues evidenced by the test
results, which are not currently believed to be material to the Company.
As a result of an administrative order issued to Oahu Sugar by the
Hawaii Department of Health, Order No. CH 98-001, dated January 27, 1998,
Oahu Sugar is currently engaged in environmental site assessment of lands
it leased from the U.S. Navy and located on the Waipio Peninsula. Sampling
is underway and the investigation is otherwise still in its preliminary
stages. Oahu Sugar has submitted a Remedial Investigation Report to the
HDOH. The HDOH has provided comments which indicate additional testing may
be required. Oahu Sugar is substantially without assets and further
pursuit of this matter by HDOH could have a material adverse effect on the
financial condition of Oahu Sugar.
The IRS filed a claim in the bankruptcy proceedings in the aggregate
amount of approximately $20,600 for taxes, interest and penalties related
to the years 1998-2000. The Company contacted the IRS to request that it
withdraw its claim due to the fact that the Plan leaves the IRS unimpaired
relative to any taxes that may be due. The Company has entered into a
stipulation with the IRS to such effect which was filed with the bankruptcy
court in August 2003 and an order was entered by the court approving such
stipulation in October 2003. In any event, the IRS audit of the period
covered by the claim is in its preliminary stages and no deficiencies in
taxes have been proposed by the auditors. The Company intends to dispute
vigorously any IRS claim for additional taxes, whether asserted by means of
the claim filed in the bankruptcy proceeding, arising in the pending audit,
or in future audits. However, there can be no assurance that the Company
will be successful in such defense and, although the Company has reserved
for potential tax liabilities on its financial statements, to the extent
that the Company is unsuccessful in defending against any such claims, the
amount for which the Company could be liable could have a material adverse
effect on the Company.
EC Managers, Inc., a subsidiary of Kaanapali Land, and general partner
of EC Partners, L.P., formerly known as Arvida/JMB Partners, L.P.-II (the
"Partnership"), was named a defendant in a lawsuit filed on January 11,
1996 in the Circuit Court in and for the Eighteenth Judicial Circuit,
Seminole County, Florida entitled Land Investment I, Ltd., Heathrow Land &
Development Corporation, Heathrow Shopping Center Associates and Paulucci
Investments v. Arvida/JMB Managers-II, Inc., Arvida/JMB Partners, L.P.-II,
Arvida Company and JMB Realty Corporation, Case No. 96-62-CA-15E. The
complaint, as amended, included counts for breach of the management
agreement, fraud in the inducement and conspiracy to commit fraud in the
inducement, breach of the Heathrow partnership agreement and constructive
trust in connection with the purchase and management of the Heathrow
development. Plaintiffs sought, among other things, unspecified
compensatory damages, punitive damages, prejudgment interest, attorneys'
fees, costs, and such other relief as the Court deemed appropriate.
On June 24, 1999, the Court granted partial summary judgment in favor
of the plaintiffs against Arvida Company, finding that Arvida Company owed
plaintiffs a fiduciary duty as a broker and advisor under the management
agreement. The ruling did not reach the issue of the statute of
limitations defense nor whether any such duties were owed in connection
with the Partnership's acquisition of an interest in the Heathrow
development through the Heathrow partnership.
On October 16-17, 2003, the court heard arguments relating to the
parties motions for summary judgment. After argument, the court indicated
that it was inclined to enter an order striking all but one claim. At a
mediation held on October 18, 2003, the parties entered into a settlement
agreement resolving the entire case in consideration of the payment of
$3.25 million made on behalf of all of the defendants. A subsidiary of the
Company that was the general partner of one of the defendants agreed to
contribute $1.95 million to the settlement payment. Mutual general
releases were entered into between the parties and the case was dismissed
with prejudice on October 24, 2003.
Kaanapali Land, as successor by merger, and D/C Distribution, a
subsidiary of Kaanapali Land, have been named as defendants in personal
injury actions allegedly based on exposure to asbestos. There are
approximately 140 cases against such subsidiary that are pending on the
mainland and are alleged based on such subsidiary's prior business
operations. Each company believes that it has meritorious defenses against
these actions, but can give no assurances as to the ultimate outcome of
these cases. In the case of the subsidiary, there can be no certainty that
such subsidiary will be able to satisfy all of its liabilities for these
cases. As the subsidiary is without assets to satisfy any material
existing or future judgments, there can be no assurances that these cases
(or any of them), if adjudicated in a manner adverse to the subsidiary,
will not have a material adverse effect on the financial condition of such
subsidiary. Kaanapali Land does not believe that it has liability,
directly or indirectly, for such subsidiary's obligations.
Northbrook Corporation (predecessor by merger to the Company) has been
named in a lawsuit filed in August 2003 in the Circuit Court of Cook
County, Chicago, Illinois, styled Silverado Golf & Country Club, Inc. v.
JMB Realty Corporation and Northbrook Corporation. The lawsuit seeks
unspecified damages and alleges that the defendants engaged in fraudulent
conduct in connection with the administration and termination of a defined
benefit pension plan that had been sponsored by Northbrook Corporation and
certain affiliates and predecessors. The participants in the pension plan
included employees of an affiliate who were engaged in employment at the
Silverado Country Club & Resort, in Napa, California (the "Resort"). The
Resort was and continues to be operated pursuant to a Management Agreement
between the plaintiff and Xanterra Parks & Resorts, L.L.C. ("Xanterra"), an
entity that is under common control with the defendants. The plaintiffs
are also pursuing their claims in a separate action against Xanterra that
is currently being arbitrated in San Francisco, California. The defendants
in the Chicago action vigorously deny all of the plaintiff's claims.
Although the case has only recently been filed and an answer has not yet
been filed, the defendants intend to defend, among other things, on the
basis that it had no relationship with the plaintiff and no duties to them
whatsoever and that the plaintiff was not a participating employer in the
pension plan and otherwise had no interest therein. However, there can be
no assurance that the plaintiffs will not ultimately prevail on some or all
of their claims.
Other than as described above and the Reorganization Case as described
above, the Company is not involved in any material pending legal
proceedings, other than ordinary routine litigation incidental to its
business. The Company and/or certain of its affiliates have been named as
defendants in several pending lawsuits. While it is impossible to predict
the outcome of such routine litigation that is now pending (or threatened)
and for which the potential liability is not covered by insurance, the
Company is of the opinion that the ultimate liability from any of this
litigation will not materially adversely affect the Company's consolidated
results of operations or its financial condition.
(9) CALCULATION OF NET INCOME PER SHARE
The following tables set forth the computation of net income (loss)
per share - basis and diluted:
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ------------------
2003 2002 2003 2002
-------- -------- -------- --------
(Amounts in thousands
except per share amounts)
NUMERATOR:
Net income (loss) . . . . . . $ 67,841 (600) 66,707 (776)
======== ======== ======== ========
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ------------------
2003 2002 2003 2002
-------- -------- -------- --------
(Amounts in thousands
except per share amounts)
DENOMINATOR:
Denominator for net
income (loss) per share -
basic and diluted. . . . . . $ 1,863 4 1,863 4
======== ======== ======== ========
Net income (loss) per
share - basic and diluted. . $ 36.41 (150) 35.81 (194)
======== ======== ======== ========
ADJUSTMENTS
In the opinion of the Company, all adjustments (consisting solely of
normal recurring adjustments) necessary for a fair presentation have been
made to the accompanying figures as of September 30, 2003 and for the three
and nine months ended September 30, 2003 and 2002. The results of
operations for the nine months ended September 30, 2003 have been adjusted
to reflect a reduction of $1,208 in the equity in loss from unconsolidated
investments from amounts previously reported. Operating results for the
three and nine months ended September 30, 2003 are not necessarily an
indication of results that may be expected for the year ended December 31,
2003.
PART I. FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
General
In addition to historical information, this Report contains forward-
looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995. These statements are based on management's current
expectations about its businesses and the markets in which the Company
operates. Such forward-looking statements are not guarantees of future
performance and involve known and unknown risks, uncertainties or other
factors which may cause actual results, performance or achievements of the
Company to be materially different from any future results, performance or
achievements expressed or implied by such forward-looking statements.
Actual operating results may be affected by various factors including,
without limitation, changes in national and Hawaiian economic conditions,
competitive market conditions, uncertainties and costs related to the
imposition of conditions on receipt of governmental approvals and costs of
material and labor, and actual versus projected timing of events all of
which may cause such actual results to differ materially from what is
expressed or forecast in this report.
Pursuant to the terms and conditions of the Plan and except as
otherwise determined in compliance with the Plan or the Order, the Debtors
shall continue to exist after the Plan Effective Date as separate legal
entities. Except as otherwise provided in the Order or the Plan, the
Debtors have been discharged from all claims and liabilities existing
through the Plan Effective Date. As such, all persons and entities who had
receivables, claims or contracts with the Debtors that first arose prior to
the Petition Date and have not previously filed timely claims under the
Plan or have not previously reserved their right to do so in the
Reorganization Case are precluded from asserting any claims against the
Debtors or their assets for any acts, omissions, liabilities, transactions
or activities that occurred before the Plan Effective Date.
On November 14, 2002, pursuant to the Plan, all of the AHI Debtors
executed and delivered to Kaanapali Land a certain Secured Promissory Note
in the principal amount of $70 million. Such note matures on October 31,
2011 and carries an interest rate of 3.04% compounded semi-annually. The
note, which is prepayable, is secured by substantially all of the real
property owned by the AHI Debtors, pursuant to a certain Mortgage, Security
Agreement and Financing Statement, dated as of November 14, 2002 and placed
on record in December 2002. The note has been eliminated in the
consolidated financial statements because the obligors are consolidated
subsidiaries of Kaanapali Land.
In addition to such Secured Promissory Note, certain Non-Debtor AHI
Subsidiaries continue to be liable to Kaanapali Land under certain
guarantees (the "Guarantees") that they had previously provided to support
certain Senior Indebtedness (as defined in the Plan) and the Certificate of
Land Appreciation Notes ("COLA Notes") formerly issued by Amfac/JMB Hawaii,
Inc. (as predecessor to AHI). Although such Senior Indebtedness and COLA
Notes were discharged under the Plan, the Guarantees of the Non-Debtor AHI
Subsidiaries were not. Thus, to the extent that the holders of the Senior
Indebtedness and COLA Notes did not receive payment on the outstanding
balance thereof from distributions made under the Plan, the remaining
amounts due thereunder remain obligations of the Non-Debtor AHI
Subsidiaries under the Guarantees. Under the Plan, the obligations of the
Non-Debtor AHI Subsidiaries under such Guarantees were assigned by the
holders the Senior Indebtedness and COLA Notes to Kaanapali Land on the
Plan Effective Date. Kaanapali Land has notified each of the Non-Debtor
AHI Subsidiaries that are liable under such Guarantees that their
respective guarantee obligations are due and owing and that Kaanapali Land
reserves all of its rights and remedies in such regard. Given the
financial condition of such Non-Debtor Subsidiaries, however, it is
unlikely that Kaanapali Land will realize payments on such Guarantees that
are more than a small percentage of the total amounts outstanding
thereunder. These Guarantee obligations have been eliminated in the
consolidated financial statements because the obligors are consolidated
subsidiaries of Kaanapali Land, which is now the sole obligee thereunder.
Those persons and entities that were not affiliated with Northbrook
and were holders of COLAs (Certificate of Land Appreciation Notes) on the
date that the Plan was confirmed by the Bankruptcy Court, and their
successors in interest, are expected to represent approximately 9.5% of the
ownership of the Company when all distributions under the Plan are
completed. The COLAs were originally issued in 1988 for approximately $385
million. The net proceeds from the COLAs were applied toward the purchase
of the net assets of Amfac Hawaii. As of the time of the bankruptcy filing,
the COLAs were reduced to approximately $142 million including accrued
interest (including those held by Northbrook and its affiliates).
Approximately $112 million of such amount represented COLAs held by non-
affiliates that were entitled to cash or Class A Shares of the Company.
The primary business of Kaanapali Land is the land development of the
Company's assets on the Island of Maui. The Kaanapali 2020 development
plan will take many years at significant expense to fully implement,
although most of such anticipated expenses are not currently subject to any
contractual commitments.
As of September 30, 2003, the Company had cash of approximately $24.6
million, which is available for working capital requirements, including
future operating expenses, and the Company's obligations for Kaanapali 2020
development costs, environmental remediation costs, including those on
former mill-sites, other potential environmental costs, costs pursuant to
the ERS settlement agreement, retiree medical insurance benefits (which are
generally expected to be paid through the end of 2004), and existing and
possible future litigation. Reference is made to the footnotes to the
financial Statements. Proceeds from land sales are the Company's only
source of significant cash proceeds and the Company's ability to meet its
liquidity needs is dependent on the timing and amount of such proceeds.
The Company's current indebtedness includes an $8.4 million mortgage
loan secured by the Waikele Golf Course which has a maturity date of
December 1, 2006, with an interest rate of 6.75% per annum at December 31,
2002. The Company currently expects to service and ultimately refinance
such loan in the ordinary course of business. Oahu MS, a subsidiary of
Kaanapali Land, is also the borrower under a $2.8 million mortgage loan
which had been due and payable since December 1, 2002. At its maturity,
this loan carried an interest rate of 6.29% per annum; however, the lender
asserts that interest continues to accrue at the default rate of 18% per
annum from and after such maturity date. The Company and the lender have
engaged in negotiations regarding a possible further extension of the loan,
which resulted in a dispute between the parties concerning whether a valid
and enforceable settlement agreement resulted therefrom. Oahu MS does not
have the funds necessary to pay the remaining balance of the loan. As a
consequence of court-supervised mediation during the period commencing in
August 2003, Oahu MS and Oahu Sugar have entered into a settlement of
certain litigation with City Bank and certain other parties that would, if
consummated, include the settlement of all matters concerning the loan and
would result in Oahu MS no longer having title to the property. See
footnote (8) of the condensed consolidated financial statements for a more
detailed discussion of such settlement.
Although the Company does not currently believe that it has any
liquidity problems over the near term, should the Company be unable to
satisfy its liquidity requirements from proceeds of land sales it will
likely pursue alternate financing arrangements. However it cannot be
determined at this time what, if any, financing alternatives may be
available and at what cost; and therefore there can be no assurance that
there will be any available financing and a lack of such financing would
have a material adverse effect on the operations of the Company.
RESULTS OF OPERATIONS
Reference is made to the footnotes to the financial statements for
additional discussion of items addressing comparability between years.
Property, net decreased and note receivable, net increased in the
accompanying balance sheets due to the sales of Lot 2 and Lot 4.
Interest income increased primarily as a result of income earned on
notes receivable arising from 2003 property sales.
The accumulated post-retirement benefit obligation decreased due in
part to benefits paid but primarily due to the effect of the expected
termination of the post-retirement life insurance benefits at the end of
2003 and the health care obligations at the end of 2004. Such reductions
have been reflected as a reduction of cost items in the Consolidated
Statement of Operations.
The investment in unconsolidated entities, at equity decrease and the
gain on disposition of unconsolidated investment increase is due to the
consummation of the settlement agreement with the ERS, which resulted in
the Company no longer having any interest in the Royal Kaanapali Golf
Courses.
The increase in sales is primarily due to the sale of Lot 4 during the
third quarter of 2003.
Selling, general and administrative increased primarily due to an
increase in the allowance for receivables relating to the loans made by
Kaanapali Land to AFLP in conjunction with the consummation of the ERS
Settlement Agreement. Because there can be no assurance that AFLP will
have funds sufficient to satisfy the loans from Kaanapali Land, the total
amount of the loans has been reserved.
Interest decreased principally due to the discharge of the COLA's and
the Senior Indebtedness pursuant to the emergence of the Debtors from
bankruptcy in 2002 and the restructuring transactions contemplated by the
Plan.
Depreciation decreased principally due to the cessation of the Kauai
Power Plant operations during the first quarter of 2003.
Restructuring costs for the nine months ended September 30, 2002
represent costs incurred in the bankruptcy process. These costs were
aggregated with liability reductions to recognize the extraordinary gain on
reorganization recorded in the fourth quarter of 2002.
Equity in income from unconsolidated investments in 2002 includes the
Company's share of operations from a hotel property and the gain from the
sale of the interests in the hotel in May, 2002.
INFLATION
Due to the lack of significant fluctuations in the level of inflation
in recent years, inflation generally has not had a material effect on real
estate development.
In the future, high rates of inflation may adversely affect real
estate development generally because of their impact on interest rates.
High interest rates not only increase the cost of borrowed funds to the
Company, but can also have a significant effect on the affordability of
permanent mortgage financing to prospective purchasers. However, high rates
of inflation may permit the Company to increase the prices that it charges
in connection with real property sales, subject to general economic
conditions affecting the real estate industry and local market factors, and
therefore may be advantageous where property investments are not highly
leveraged with debt or where the cost of such debt has been previously
fixed.
CRITICAL ACCOUNTING POLICIES
The discussion and analysis of the Company's financial condition and
results of operations are based upon the Company's consolidated financial
statements, which have been prepared in accordance with accounting
principles generally accepted in the United States. The preparation of
these financial statements requires management to make estimates and
judgements that affect the reported amounts of assets, liabilities,
revenues and expenses, and related disclosures of contingent assets and
liabilities. These estimates are based on historical experience and on
various other assumptions that management believes are reasonable under the
circumstances; additionally management evaluates these results on an on-
going basis. Management's estimates form the basis for making judgments
about the carrying values of assets and liabilities that are not readily
apparent from other sources. Different estimates could be made under
different assumptions or conditions, and in any event, actual results may
differ from the estimates.
The Company reviews its property for impairment of value. This
includes considering certain indications of impairment such as significant
changes in asset usage, significant deterioration in the surrounding
economy or environmental problems. If such indications are present and the
undiscounted cash flows estimated to be generated by those assets are less
than the assets' carrying value, the Company will adjust the carrying value
down to its estimated fair value. Fair value is based on management's
estimate of the property's fair value based on discounted projected cash
flows.
There are various judgments and uncertainties affecting the
application of these and other accounting policies, including the
liabilities related to asserted and unasserted claims and the utilization
of net operating losses. Materially different amounts may be reported
under different circumstances or if different assumptions were used.
ITEM 4. CONTROLS AND PROCEDURES
The principal executive officer and the principal financial officer of
the Company have evaluated the effectiveness of the Company's disclosure
controls and procedures as defined in Rule 13a-15(e) of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") as of the end of the
period covered by this report. Based on such evaluation, the principal
executive officer and the principal financial officer have concluded that
the Company's disclosure controls and procedures were effective to ensure
that information required to be disclosed was recorded, processed,
summarized and reported within the time periods specified in the applicable
rules and form of the Securities and Exchange Commission.
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
3.1 Amended and Restated Limited Liability Company Agreement
of Kaanapali Land, LLC dated November 14, 2002 filed as
an exhibit to the Company's Form 10 filed May 1, 2003 and
hereby incorporated by reference.
10.1 Property Purchase and Option Agreement by and between NB
Lot 4, LLC, Maui Beach Resort Limited Partnership, and NB
Lot 3, LLC dated August 4, 2003.
31.1. Certification of Chief Executive Officer pursuant to
Rule 13a-14(a) is filed herewith.
31.2. Certification of Chief Financial Officer pursuant to
Rule 13a-14(a) is filed herewith.
32. Certifications pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act
of 2002 are filed herewith.
(1) Previously filed as exhibits to Amfac Hawaii,
LLC's Registration Statement on Form S-1 (as amended)
under the Securities Act of 1933 (File No. 33-24180) and
hereby incorporated by reference.
99.1 Settlement Agreement dated March 14, 2003 between Amfac
Property Investment Corp., Amfac Hawaii, LLC, Pioneer
Mill Company, Limited, and Employees' Retirement System
of the State of Hawaii.
(b) The following reports on Form 8-K were filed since the
beginning of the last quarter of the period covered by the
report.
The Company's report on Form 8-K (File No. 0-50273) for
August 5, 2003, filed on August 22, 2003 describing the sale of
Lot 4 was filed.
The Company's report on Form 8-K (File No. 0-50273) for
September 9, 2003, filed on September 26, 2003 describing the
consummation of the settlement agreement with the Employees'
Retirement System of the State of Hawaii was filed.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
KAANAPALI LAND, LLC
/s/ Gailen J. Hull
---------------------
By: Gailen J. Hull
Senior Vice President
Date: November 14, 2003