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           Notwithstanding the terms of the Loan Agreement and the
Co-Lending Agreement, MH Kapalua hereby agrees that on the Settlement Date
immediately following the events described in Sections 1 through 4 of this
Agreement, it will make an advance of a portion of its undisbursed commitment
assumed pursuant to Section 1 above to Borrower in the amount of
$10,000,000. Following such advance, MH Kapalua’s portion of the current
outstanding principal balance of the Loan shall be $10,000,000 and its
remaining undisbursed commitment shall be $10,000,000, and each Assignee’s
resulting Note, Pro Rata Interest, portion of the current outstanding principal
balance of the Loan and remaining undisbursed commitment to fund the balance of
the Loan shall be as set forth on Schedule V hereto. The Borrower shall apply
the proceeds of such advance to repay a portion of the equity loans previously
made by MH Kapalua to the Borrower.


 


5.2           The Assignors, the Assignees, the Agent and the Borrower
consent to the making of such advance. Such advance shall constitute a portion
of the outstanding Loan and shall accrue interest in accordance with the terms
of the Loan Agreement and the Promissory Note A-6 from and after the Settlement
Date.


 


Section 6.                                            Partial
Repayment of Promissory Note B.


 


6.1           Notwithstanding the terms of the Loan Agreement and the
Co-Lending Agreement, the Borrower hereby agrees that on the Settlement Date
immediately following the events described in Sections 1 through 5 of this
Agreement, it will make a payment of $699,227.89 to Swedbank, which payment
shall reduce the outstanding principal amount owed to Swedbank under its
Promissory Note B to $15,036,493.66, and each Assignee’s resulting Note, Pro
Rata Interest, portion of the current outstanding principal balance of the Loan
and remaining undisbursed commitment to fund the balance of the Loan shall be
as set forth on Schedule VI hereto. Such prepayment by Borrower shall not
constitute an advance by any Lender under its commitment to fund its Loan and
shall be an additional equity investment by the Borrower.


 


6.2           The Assignors, the Assignees and the Agent hereby consent
to such repayment of the Promissory Note B.


 


Section 7.                                            Amendments
to Co-Lending Agreement.


 


 


4

















 


The
Assignors, the Assignees, the Agent and the Borrower hereby agree that the
Co-Lending Agreement is amended as follows:


 


7.1           Exhibit A to the Co-Lending Agreement is hereby
replaced by Exhibit A hereto.


 


7.2           Exhibit B to the Co-Lending Agreement is hereby
replaced by Exhibit B hereto.


 


7.3           Exhibit E to the Co-Lending Agreement is hereby
replaced by Exhibit C hereto.


 


Section 8.                                            Miscellaneous.


 


8.1           This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page of this Agreement by facsimile or
electronic transmission of a PDF file shall be effective delivery of a manually
executed counterpart of this Agreement.


 


8.2           The Borrower, the Agent and each Assignor will, do,
execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, assignments, notices of assignments, transfers and assurances as
any Assignee shall, from time to time, reasonably require, for the better
assuring, conveying, assigning, transferring and confirming unto such Assignee
the property and rights hereby given, granted, bargained, sold, conveyed,
and/or assigned. Each Assignor and each Assignee will, do, execute, acknowledge
and deliver all and every such further acts as and reasonably required for
carrying out the intention or facilitating the performance of the terms of this
Agreement.


 


8.3           This Agreement shall constitute a “Loan Document” for
purpose of the Loan Documents.


 


8.4           THE BORROWER, THE AGENT, EACH ASSIGNOR AND EACH ASSIGNEE
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR RELATING
THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THE LOAN
DOCUMENTS AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.


 


8.5           THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK,
WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND
TO THE UNDERLYING TRANSACTION EMBODIED HEREBY. IN ALL RESPECTS, INCLUDING,
WITHOUT LIMITATION,


 


5

















 


MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE AND APPLICABLE
LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW,
BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT
THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, AND THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF.


 


8.6           TO THE GREATEST EXTENT PERMITTED BY LAW, BORROWER HEREBY
WAIVES ANY AND ALL RIGHTS TO REQUIRE MARSHALLING OF ASSETS BY THE AGENT. WITH
RESPECT TO ANY SUIT, ACTION OR PROCEEDINGS RELATING TO THIS AGREEMENT (EACH, A “PROCEEDING”),
BORROWER IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
CIRCUIT COURT OF THE SECOND CIRCUIT, STATE OF HAWAII, THE FEDERAL DISTRICT
COURT FOR THE DISTRICT OF HAWAII, OR ANY FEDERAL OR STATE COURT SITTING IN NEW
YORK COUNTY, NEW YORK, AND (B) WAIVES ANY OBJECTION WHICH IT MAY HAVE
AT ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM
AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDING, THAT
SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY. NOTHING IN THIS
AGREEMENT SHALL PRECLUDE THE AGENT OR ANY ASSIGNOR OR ASSIGNEE FROM BRINGING A
PROCEEDING IN ANY OTHER JURISDICTION NOR WILL THE BRINGING OF A PROCEEDING IN
ANY ONE OR MORE JURISDICTIONS PRECLUDE THE BRINGING OF A PROCEEDING IN ANY
OTHER JURISDICTION. BORROWER FURTHER AGREES AND CONSENTS THAT, IN ADDITION TO
ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL
SERVICE OF PROCESS IN ANY PROCEEDING IN THE CIRCUIT COURT OF THE SECOND
CIRCUIT, STATE OF HAWAII, THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF
HAWAII, OR ANY FEDERAL OR STATE COURT SITTING IN NEW YORK COUNTY, NEW YORK, MAY BE
MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO
BORROWER AT THE ADDRESS INDICATED IN THE LOAN AGREEMENT, AND SERVICE SO MADE SHALL BE COMPLETE
UPON RECEIPT; EXCEPT THAT IF BORROWER SHALL REFUSE TO ACCEPT DELIVERY, SERVICE
SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED.


 


 


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[remainder of page intentionally
left blank; signature pages follow]


 


 


7














 


[Signature Page to Master Assignment and Assumption
and Modification Agreement]


 


IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.


 




	
   

  	
  ASSIGNORS:

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  BROTHERS HOLDINGS INC., a Delaware corporation, as debtor and debtor in
  possession in its Chapter 11 case in the United States Bankruptcy Court for
  the Southern District of New York

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gerald D. Pietroforte

  
	
   

  	
   

  	
  Name:

  	
  Gerald
  D. Pietroforte

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  






 


 




	
   

  	
  CENTRAL
  PACIFIC BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ryan M. Harada

  
	
   

  	
   

  	
  Name:

  	
  Ryan
  M. Harada

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  






 


 




	
   

  	
  DEUTSCHE
  HYPOTHEKENBANK (ACTIENGESELLSCHAFT)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dirk Wilke

  
	
   

  	
   

  	
  Name:

  	
  Dirk
  Wilke

  
	
   

  	
   

  	
  Title:

  	
  authorized
  officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Muller

  
	
   

  	
   

  	
  Name:

  	
  Michael
  Muller

  
	
   

  	
   

  	
  Title:

  	
  authorized
  officer

  






 


 

















 




	
   

  	
  LANDESBANK
  BADEN-WÜRTTEMBERG (successor-in-interest to Landesbank Sachsen Girozentrale)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dietmar Wilhelm

  
	
   

  	
   

  	
  Name:

  	
  Dietmar
  Wilhelm

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nicole Schumacher

  
	
   

  	
   

  	
  Name:

  	
  Nicole
  Schumacher

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  






 


 




	
   

  	
  SWEDBANK
  AB (PUBL), NEW YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John Matthews

  
	
   

  	
   

  	
  Name:

  	
  John
  Matthews

  
	
   

  	
   

  	
  Title:

  	
  General
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Donald Weiss

  
	
   

  	
   

  	
  Name:

  	
  Donald
  Weiss

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  






 




	
   

  	
  ASSIGNEES:

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  BROTHERS HOLDINGS INC., a Delaware corporation, as debtor and debtor in
  possession in its Chapter 11 case in the United States Bankruptcy Court for
  the Southern District of New York

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gerald D. Pietroforte

  
	
   

  	
   

  	
  Name:

  	
  Gerald
  D. Pietroforte

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  






 


 

















 




	
   

  	
  CENTRAL
  PACIFIC BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ryan M. Harada

  
	
   

  	
   

  	
  Name:

  	
  Ryan
  M. Harada

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  






 


 




	
   

  	
  DEUTSCHE
  HYPOTHEKENBANK (ACTIENGESELLSCHAFT)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dirke Wilke

  
	
   

  	
   

  	
  Name:

  	
  Dirke
  Wilke

  
	
   

  	
   

  	
  Title:

  	
  authorized
  officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Muller

  
	
   

  	
   

  	
  Name:

  	
  Michael
  Muller

  
	
   

  	
   

  	
  Title:

  	
  authorized
  officer

  






 


 




	
   

  	
  LANDESBANK
  BADEN-WÜRTTEMBERG

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Dietmar Wilhelm

  
	
   

  	
   

  	
  Name:

  	
  Dietmar
  Wilhelm

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nicole Schumacher

  
	
   

  	
   

  	
  Name:

  	
  Nicole
  Schumacher

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  






 


 

















 




	
   

  	
  SWEDBANK
  AB (PUBL), NEW YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John Matthews

  
	
   

  	
   

  	
  Name:

  	
  John
  Matthews

  
	
   

  	
   

  	
  Title:

  	
  General
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Donald Weiss

  
	
   

  	
   

  	
  Name:

  	
  Donald
  Weiss

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  






 


 




	
   

  	
  MH
  KAPALUA VENTURE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Marriott
  Two Flags, LP, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Marriott
  Ownership Resorts, Inc.,

  
	
   

  	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  William J. Tennis

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  William
  J. Tennis

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  






 


 




	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  BROTHERS HOLDINGS INC., a Delaware corporation, as debtor and debtor in
  possession in its Chapter 11 case in the United States Bankruptcy Court for
  the Southern District of New York, as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gerald D. Pietroforte

  
	
   

  	
   

  	
  Name:

  	
  Gerald
  D. Pietroforte

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  






 


 

















 




	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  KAPALUA
  BAY, LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kapalua
  Bay Holdings, LLC, a Delaware limited liability company, its Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  MLP
  KB Partner LLC, a Hawaii limited liability company, its Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Maui
  Land & Pineapple Company, Inc., a Hawaii corporation, Managing Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Adele H. Sumida

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Adele
  H. Sumida

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Controller
  & Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Randall H. Endo

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Randall
  H. Endo

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  






 


 






 










 


SCHEDULE I


 


Assignors and Assignees


 




	
  Assignors

  	
   

  	
  Assignees

  
	
  Lehman Brothers Holdings Inc.

  	
   

  	
  Lehman Brothers Holdings Inc.

  
	
   

  	
   

  	
   

  
	
  Central Pacific Bank

  	
   

  	
  Central Pacific Bank

  
	
   

  	
   

  	
   

  
	
  Deutsche Hypothekenbank (Actien-Gesellschaft)

  	
   

  	
  Deutsche Hypothekenbank (Actien-Gesellschaft)

  
	
   

  	
   

  	
   

  
	
  Landesbank Baden-Württemberg

  	
   

  	
  Landesbank Baden-Württemberg

  
	
   

  	
   

  	
   

  
	
  Swedbank AB (publ), New York Branch

  	
   

  	
  Swedbank AB (publ), New York Branch

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MH
  Kapalua Venture, LLC

  






 


 

















 


SCHEDULE
II


 


Notes,
Pro Rata Interests, Outstanding Principal and Commitments:


Prior
to Assignment and Assumption


 


	
  Lender

  	
   

  	
  Column A

  Note Class

  	
   

  	
  Column B

  Face Amount of Note

  	
   

  	
  Column C

  Pro Rata Interest

  	
   

  	
  Column D

  Outstanding Principal

  	
   

  	
  Column E

  Undisbursed Commitment

  	
   

  
	
  Central Pacific Bank

  	
   

  	
  A-1

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  8.108

  	
  %

  	
  $

  	
  23,603,582.32

  	
   

  	
  $

  	
  6,396,417.68

  	
   

  
	
  Landesbank
  Baden-Württemberg

  	
   

  	
  A-2

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  6.757

  	
  %

  	
  $

  	
  19,669,651.94

  	
   

  	
  $

  	
  5,330,348.06

  	
   

  
	
  Deutsche Hypothekenbank
  (Actien-Gesellschaft)

  	
   

  	
  A-3

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  6.757

  	
  %

  	
  $

  	
  19,669,651.94

  	
   

  	
  $

  	
  5,330,348.06

  	
   

  
	
  Lehman Brothers Holdings
  Inc.

  	
   

  	
  A-4

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  	
  4.054

  	
  %

  	
  $

  	
  8,338,110.51

  	
   

  	
  $

  	
  6,661,889.49

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-5

  	
   

  	
  $

  	
  255,000,000.00

  	
   

  	
  68.919

  	
  %

  	
  $

  	
  141,747,860.32

  	
   

  	
  $

  	
  113,252,139.68

  	
   

  
	
  Swedbank AB (publ), New
  York Branch

  	
   

  	
  B

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  	
  5.405

  	
  %

  	
  $

  	
  15,735,721.55

  	
   

  	
  $

  	
  4,264,278.45

  	
   

  
	
  TOTAL:

  	
   

  	
   

  	
   

  	
  $

  	
  370,000,000

  	
   

  	
  100

  	
  %

  	
  $

  	
  228,764,578.58

  	
   

  	
  $

  	
  141,235,421.42

  	
   

  



 


 

















 


SCHEDULE
III


 


Notes,
Pro Rata Interests, Outstanding Principal and Commitments:


After
Assignment and Assumption


 


	
  Lender

  	
   

  	
  Column A

  Note Class

  	
   

  	
  Column B

  Face Amount of Note

  	
   

  	
  Column C

  Pro Rata Interests

  	
   

  	
  Column D

  Outstanding Principal

  	
   

  	
  Column E

  Undisbursed Commitment

  	
   

  
	
  Central Pacific Bank

  	
   

  	
  A-1

  	
   

  	
  $

  	
  36,133,081.90

  	
   

  	
  10.069

  	
  %

  	
  $

  	
  23,603,582.32

  	
   

  	
  $

  	
  12,529,499.58

  	
   

  
	
  Landesbank
  Baden-Württemberg

  	
   

  	
  A-2

  	
   

  	
  $

  	
  50,944,234.92

  	
   

  	
  14.197

  	
  %

  	
  $

  	
  19,669,651.94

  	
   

  	
  $

  	
  31,274,582.98

  	
   

  
	
  Deutsche Hypothekenbank
  (Actien-Gesellschaft)

  	
   

  	
  A-3

  	
   

  	
  $

  	
  50,944,234.92

  	
   

  	
  14.197

  	
  %

  	
  $

  	
  19,669,651.94

  	
   

  	
  $

  	
  31,274,582.98

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-4

  	
   

  	
  $

  	
  8,338,110.51

  	
   

  	
  2.324

  	
  %

  	
  $

  	
  8,338,110.51

  	
   

  	
  $

  	
  0

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-5

  	
   

  	
  $

  	
  176,747,860.32

  	
   

  	
  49.255

  	
  %

  	
  $

  	
  141,747,860.32

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  
	
  MH Kapalua Venture, LLC

  	
   

  	
  A-6

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  	
  5.573

  	
  %

  	
  $

  	
  0

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  
	
  Swedbank AB (publ), New
  York Branch

  	
   

  	
  B

  	
   

  	
  $

  	
  15,735,721.55

  	
   

  	
  4.385

  	
  %

  	
  $

  	
  15,735,721.55

  	
   

  	
  $

  	
  0

  	
   

  
	
  TOTAL:

  	
   

  	
   

  	
   

  	
  $

  	
  358,843,244.12

  	
   

  	
  100

  	
  %

  	
  $

  	
  228,764,578.58

  	
   

  	
  $

  	
  130,078,665.54

  	
   

  



 


 






 










 


SCHEDULE
IV


 


Cancelled
Commitments


 


	
  Lender

  	
   

  	
  Note Class

  	
   

  	
  Undisbursed

  Commitments

  Cancelled

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-4

  	
   

  	
  $

  	
  6,661,889.49

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-5

  	
   

  	
  $

  	
  230,587.94

  	
   

  
	
  Swedbank AB (publ), New
  York Branch

  	
   

  	
  B

  	
   

  	
  $

  	
  4,264,278.45

  	
   

  
	
  Total:

  	
   

  	
   

  	
   

  	
  $

  	
  11,156,755.88

  	
   

  



 


 

















 


SCHEDULE
V


 


Pro
Rata Interests, Outstanding Principal and Commitments


Following
One-Time Advance By MH Kapalua


 


	
  Lender

  	
   

  	
  Column A

  Note Class

  	
   

  	
  Column B

  Face Amount of

  Note

  	
   

  	
  Column C

  Pro Rata

  Interests

  	
   

  	
  Column D

  Outstanding

  Principal

  	
   

  	
  Column E

  Undisbursed

  Commitment

  	
   

  
	
  Central Pacific Bank

  	
   

  	
  A-1

  	
   

  	
  $

  	
  36,133,081.90

  	
   

  	
  10.069

  	
  %

  	
  $

  	
  23,603,582.32

  	
   

  	
  $

  	
  12,529,499.58

  	
   

  
	
  Landesbank
  Baden-Württemberg

  	
   

  	
  A-2

  	
   

  	
  $

  	
  50,944,234.92

  	
   

  	
  14.197

  	
  %

  	
  $

  	
  19,669,651.94

  	
   

  	
  $

  	
  31,274,582.98

  	
   

  
	
  Deutsche Hypothekenbank
  (Actien-Gesellschaft)

  	
   

  	
  A-3

  	
   

  	
  $

  	
  50,944,234.92

  	
   

  	
  14.197

  	
  %

  	
  $

  	
  19,669,651.94

  	
   

  	
  $

  	
  31,274,582.98

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-4

  	
   

  	
  $

  	
  8,338,110.51

  	
   

  	
  2.324

  	
  %

  	
  $

  	
  8,338,110.51

  	
   

  	
  $

  	
  0

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-5

  	
   

  	
  $

  	
  176,747,860.32

  	
   

  	
  49.255

  	
  %

  	
  $

  	
  141,747,860.32

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  
	
  MH Kapalua Venture, LLC
  (after one time advance of $10,000,000.000 pursuant to Section 5)

  	
   

  	
  A-6

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  	
  5.573

  	
  %

  	
  $

  	
  10,000,000.00

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  
	
  Swedbank AB (publ), New
  York Branch

  	
   

  	
  B

  	
   

  	
  $

  	
  15,735,721.55

  	
   

  	
  4.385

  	
  %

  	
  $

  	
  15,735,721.55

  	
   

  	
  $

  	
  0

  	
   

  
	
  TOTAL:

  	
   

  	
   

  	
   

  	
  $

  	
  358,843,244.12

  	
   

  	
  100

  	
  %

  	
  $

  	
  238,764,578.58

  	
   

  	
  $

  	
  120,078,665.54

  	
   

  



 


 

















 


SCHEDULE
VI


 


Pro
Rata Interests, Outstanding Principal and Commitments Following


Partial
Repayment of Promissory Note B


 


	
  Lender

  	
   

  	
  Column A

  Note Class

  	
   

  	
  Column B

  Face Amount of

  Note

  	
   

  	
  Column C

  Pro Rata

  Interests

  	
   

  	
  Column D

  Outstanding

  Principal

  	
   

  	
  Column E

  Undisbursed

  Commitment

  	
   

  
	
  Central Pacific Bank

  	
   

  	
  A-1

  	
   

  	
  $

  	
  36,133,081.90

  	
   

  	
  10.089

  	
  %

  	
  $

  	
  23,603,582.32

  	
   

  	
  $

  	
  12,529,499.58

  	
   

  
	
  Landesbank
  Baden-Württemberg

  	
   

  	
  A-2

  	
   

  	
  $

  	
  50,944,234.92

  	
   

  	
  14.225

  	
  %

  	
  $

  	
  19,669,651.94

  	
   

  	
  $

  	
  31,274,582.98

  	
   

  
	
  Deutsche Hypothekenbank
  (Actien-Gesellschaft)

  	
   

  	
  A-3

  	
   

  	
  $

  	
  50,944,234.92

  	
   

  	
  14.225

  	
  %

  	
  $

  	
  19,669,651.94

  	
   

  	
  $

  	
  31,274,582.98

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-4

  	
   

  	
  $

  	
  8,338,110.51

  	
   

  	
  2.328

  	
  %

  	
  $

  	
  8,338,110.51

  	
   

  	
  $

  	
  0

  	
   

  
	
  Lehman Brothers
  Holdings Inc.

  	
   

  	
  A-5

  	
   

  	
  $

  	
  176,747,860.32

  	
   

  	
  49.351

  	
  %

  	
  $

  	
  141,747,860.32

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  
	
  MH Kapalua Venture, LLC

  	
   

  	
  A-6

  	
   

  	
  $

  	
  20,000,000.00

  	
   

  	
  5.584

  	
  %

  	
  $

  	
  10,000,000.00

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  
	
  Swedbank AB (publ), New
  York Branch (after payment by Borrower of $699,227.89 pursuant to
  Section 6)

  	
   

  	
  B

  	
   

  	
  $

  	
  15,036,493.66

  	
   

  	
  4.198

  	
  %

  	
  $

  	
  15,036,493.66

  	
   

  	
  $

  	
  0

  	
   

  
	
  TOTAL:

  	
   

  	
   

  	
   

  	
  $

  	
  358,144,016.23

  	
   

  	
  100

  	
  %

  	
  $

  	
  238,065,350.69

  	
   

  	
  $

  	
  120,078,665.54