Exhibit 10.56
Execution Version
MASTER ASSIGNMENT AND
ASSUMPTION
AND MODIFICATION
AGREEMENT
THIS MASTER ASSIGNMENT AND
ASSUMPTION AND MODIFICATION AGREEMENT (this “
Agreement ”) is made as of February 11, 2009 by
and among LEHMAN BROTHERS HOLDINGS INC. (“ LBHI
”), CENTRAL PACIFIC BANK (“ Central Pacific
”), DEUTSCHE HYPOTHEKENBANK (ACTIEN-GESELLSCHAFT) (“
Deutsche Hypo ”), LANDESBANK BADEN-WÜRTTEMBERG,
successor-in-interest to Landesbank Sachsen Girozentrale (“
LBBW ”), SWEDBANK AB (PUBL), NEW YORK BRANCH (“
Swedbank ), MH KAPALUA VENTURE, LLC (“ MH
Kapalua ”), LBHI as agent (in such capacity, the “
Agent ”) and KAPALUA BAY, LLC (the “
Borrower ”)
Reference is made to that certain
Construction Loan Agreement as modified by that certain First
Omnibus Amendment to Construction Loan Documents, each as described
in Annex I hereto (the “ Loan Agreement ”), and
that certain Co-Lending Agreement dated as of February 1, 2007
among LBHI, Central Pacific, LBBW, Deutsche Hypo and Agent (the
“ Co-Lending Agreement ”). Unless defined herein
or in any Annex attached hereto, terms defined in the Loan
Agreement are used herein as therein defined.
Each of the parties listed in the
left hand column of Schedule I hereto (together, the “
Assignors ” and each, an “ Assignor
”), each of the parties listed in the right hand column of
Schedule I hereto (together, the “ Assignees ”
and each, an “ Assignee ”), the Agent and the
Borrower hereby agree as follows:
Section 1.
Assignment of Pro Rata
Interests .
1.1
The Assignors hereby sell and assign to the Assignees without
recourse and without representation or warranty (other than as
expressly provided herein or in the Loan Agreement), and the
Assignees hereby purchase and assume from the Assignors, the
Assignors’ Notes and the Pro Rata Interest in the Loan
Documents specified in Column C of Schedule II hereto and the
Assignor’s Notes specified in Columns A and B of Schedule II
are hereby split, divided and apportioned, such that each
Assignee’s Note, Pro Rata Interest, its portion of the
current outstanding principal balance of the Loan and remaining
undisbursed commitment to fund the balance of the Loan are as set
forth on Schedule III hereto. Assignees hereby assume and undertake
to perform, pay or discharge, in accordance with the terms and
conditions thereof and in accordance with their Pro Rata Interest
in the Loan Documents specified in Column C of Schedule III hereto,
all obligations of Assignors under the Loan Documents, to the
extent such obligations are to be performed, paid or discharged
after the date hereof.
1.2
Each Assignor other than LBHI (i) represents and warrants that
it is duly authorized by all requisite actions to enter into and
perform the terms of this Agreement; (ii) represents and
warrants that it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is free and
clear of any liens or security
interests; (iii) makes
no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or
in connection with the Loan Agreement, the other Loan Documents, or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Agreement, the other Loan
Documents, or any other instrument or document furnished pursuant
thereto except as set forth in the Co-Lending Agreement; and
(iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or any of its Affiliates or the performance or observance
by the Borrower of any of its obligations under the Loan Agreement,
the other Loan Documents, or any other instrument or document
furnished pursuant thereto except as set forth in the Co-Lending
Agreement. LBHI (i) represents and warrants that the
individual executing this Agreement on behalf of LBHI is duly
authorized to execute this Agreement on behalf of LBHI;
(ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Agreement,
the other Loan Documents or the Co-Lending Agreement, or in
connection with the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement, the other
Loan Documents, or any other instrument or document furnished
pursuant thereto including the Co-Lending Agreement; and
(iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or any of its Affiliates or the performance or observance
by the Borrower of any of its obligations under the Loan Agreement,
the other Loan Documents, or any other instrument or document
furnished pursuant thereto. Attached hereto as Annex I is a true,
correct and complete list of all of the Loan Documents as of the
date hereof. To each Assignor’s knowledge, there currently
exists no default or event which, with the giving of notice or the
lapse of time, or both, would constitute an Event of Default under
the Loan Documents, except for (a) those arising as a result
of entering into the Forbearance Agreement dated as of
October 24, 2008 between the Borrower and Nordic/PCL and the
other “Documents” (as defined therein), and actions
taken pursuant thereto and (b) those arising as a result of
LBHI’s failure to fund under the Loan Agreement.
1.3
Each Assignee (i) represents and warrants that it is duly
authorized to enter into and perform the terms of this Agreement;
(ii) confirms that it has received a copy of the Loan
Agreement and the other Loan Documents, together with copies of the
financial statements referred to therein and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Agreement and the
Co-Lending Agreement, and has not relied on any statements or
representations made by any Assignor in connection with its
decision to purchase the Pro Rata Interest pursuant to this
Agreement; (iii) agrees that it will, independently and
without reliance upon the Assignors and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
the Loan Agreement; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of the Loan Agreement are required to be performed by it as a
Lender; and (v) agrees that the interest being assigned
hereunder is
2
being acquired by it for its
own account, for investment purposes only and not with a view to
the public distribution thereof and without any present intention
of its resale in either case that would be in violation of
applicable securities laws.
1.4
Following the execution of this Agreement by the Assignors and the
Assignees, an executed original hereof (together with all
attachments) will be retained by the Agent for acceptance by it and
recording in the records of the Agent. The effective date of this
Agreement shall be the date hereof (the “ Settlement Date ”).
1.5
As of the Settlement Date, (i) each Assignee shall be a party
to the Loan Agreement and the Co-Lending Agreement and, to the
extent provided in this Agreement, have the rights and obligations
of a Lender under the Loan Agreement, and (ii) each Assignor
shall, with respect to that portion of its interest assigned hereby
relinquish its future rights and be released from its future
obligations under the Loan Documents, but shall remain liable for
all of its obligations that arose prior to the Settlement
Date.
1.6
It is agreed that as of the Settlement Date, each Assignee shall be
entitled to all interest on the disbursed amount of its Pro Rata
Interest of the Loan at the rates specified in the Loan Agreement
and the applicable replacement Notes issued pursuant to
Section 4 of this Agreement, accruing on and after the
Settlement Date and each Assignor shall be entitled to all interest
on the disbursed amount of its Pro Rata Interest of the Loan at the
rates specified in the Loan Agreement and the applicable Note
accruing to the Settlement Date.
Section 2.
Consent; Assignees as Lenders and
Split Note Holders .
The Assignors, the Assignees, the
Agent and the Borrower hereby consent and agree, and the Assignors
hereby consent pursuant to Section 8.01(a)(b) of the
Co-Lending Agreement, that each Assignee shall become a
“Lender” or “Split Note Holder” for all
purposes of the Co-Lending Agreement and the Loan Documents as of
the Settlement Date to the extent of the Pro Rata Interest in the
Loan Documents assigned to and assumed by such Assignee as set
forth on Schedule III hereto.
Section 3.
Cancellation of
Commitments .
The Assignors, the Assignees, the
Agent and the Borrower hereby agree that the Loan is modified as of
the Settlement Date to permanently cancel the portion of
commitments of the Assignors specified on Schedule IV
hereto.
Section 4.
Cancellation
of Existing Notes and Issuance of Replacement Notes
.
4.1
The Assignors, the Agent and the Borrower hereby agree that
Promissory Note A-1, Promissory Note A-2, Promissory Note A-3,
Promissory Note A-4, Promissory Note A-5 and Promissory Note B are
cancelled as of the Settlement Date
3
effective upon the issuance
of the replacement Notes pursuant to Section 4.2 of this
Agreement.
4.2
The Borrower hereby agrees to issue replacement promissory notes to
the Assignees on the Settlement Date as set forth in Columns A and
B of Schedule III hereto. Each such replacement promissory note
shall be a “Note” for purposes of the Loan
Documents.
Section 5.
Advance by MH
Kapalua to Borrower of $10,000,000 .
5.1 &
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