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,