Exhibit 10.57
Execution Version
SECOND OMNIBUS AMENDMENT
TO
CONSTRUCTION LOAN
DOCUMENTS
Project commonly know as
the
“Residences at Kapalua
Bay”
THIS SECOND OMNIBUS AMENDMENT TO
CONSTRUCTION LOAN DOCUMENTS (the “ Second Amendment
”) is made as of February 11, 2009, by and among
KAPALUA BAY, LLC (“ Borrower ”),
CENTRAL PACIFIC BANK , a Hawaii bank (“ Central
Pacific ”), DEUTSCHE HYPOTHEKENBANK
(ACTIEN-GESELLSCHAFT) (“ Deutsche Hypo ”),
LANDESBANK BADEN-WÜRTTEMBERG (“ LBBW
”), SWEDBANK AB (PUBL), NEW YORK BRANCH (“
Swedbank ”), MH KAPALUA VENTURE, LLC (“
MH Kapalua ”), LEHMAN BROTHERS HOLDINGS INC.
(“ LBHI ;” LBHI, Central Pacific, Deutsche Hypo,
LBBW, Swedbank and MH Kapalua being referred to herein individually
as a “ Lender ” and collectively as the “
Lenders ”), Central Pacific as agent for the Lenders
(the “ Agent ”), MAUI LAND &
PINEAPPLE COMPANY, INC. (“ ML&P ”),
THE RITZ-CARLTON DEVELOPMENT COMPANY, INC. (“
Ritz-Carlton ”), EXCLUSIVE RESORTS DEVELOPMENT
COMPANY, LLC (“ ERDC ”; ERDC, ML&P and
Ritz Carlton being referred to herein individually as a “
Guarantor ” and collectively as “
Guarantors ”), KAPALUA BAY HOLDINGS, LLC
(“ Holdings ”), EXCLUSIVE RESORTS, LLC
(“ Exclusive Resorts ”) and MARRIOTT
INTERNATIONAL, INC. (“ MII ”).
RECITALS
A.
Borrower is the fee owner of that certain tract of land located in
Lahaina, Maui, Hawaii, and being more fully described in
Exhibit A-1 of the Amended and Restated Loan Agreement (as
defined below) (the “ Development Land
”).
B.
Borrower is the owner of a leasehold interest in that certain tract
of land located in Lahaina, Maui, Hawaii, and being more fully
described in Exhibit A-2 of the Amended and Restated Loan
Agreement (the “ Spa Land ”; and collectively
with the Development Land, the “ Land
”).
C.
Borrower is developing a residential development on the Development
Land and has submitted the Development Land to a condominium
property and fractional ownership regime which includes for-sale
Residential Condominium Units and Fractional Ownership Units.
The Spa Land is being developed as a Spa for the benefit of the
guests and residents of the Project. The Land, the Spa and
the other Improvements and the Personal Property located thereon
are collectively sometimes
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referred to as the “
Project ”.
D.
LBHI, as lender, and Borrower, as borrower, entered into a
Construction Loan Agreement, dated as of July 14, 2006, as
amended from time to time (the “ Original Construction
Loan Agreement ”), pursuant to which LBHI agreed to make
a loan to Borrower in the aggregate amount of up to $370,000,000 to
finance in part the construction of the Project (the “
Original Loan ”).
E.
LBHI and Borrower entered into a Note Splitter and Reaffirmation
Agreement, dated as of January 26, 2007, pursuant to which the
original note delivered by Borrower pursuant to the Original
Construction Loan Agreement was split, divided and apportioned into
the following six separate promissory notes delivered by Borrower
to LBHI: (i) the Amended, Severed and Restated Promissory Note
(Note A-1) in the principal amount of $30,000,000 (the “
Split Note A-1 ”), (ii) the Amended, Severed and
Restated Promissory Note (Note A-2) in the principal amount of
$25,000,000 (the “ Split Note A-2 ”);
(iii) the Amended, Severed and Restated Promissory Note (Note
A-3) in the principal amount of $25,000,000 (the “ Split
Note A-3 ”); (iv) the Amended, Severed and Restated
Promissory Note (Note A-4) in the principal amount of $15,000,000
(the “ Split Note A-4 ”); (v) Amended,
Severed and Restated Promissory Note (Note A-5) in the principal
amount of $255,000,000 (the “ Split Note A-5 ”
and together with Note A-1, Note A-2, Note A-3 and Note A-4,
collectively, the “ Split A Notes ”); and
(vi) the Amended, Severed and Restated Promissory Note (Note
B) in the principal amount of $20,000,000 (the “ Split
Note B ”, and collectively with the Split A Notes, the
“ Split Notes ”).
F.
Pursuant to Assignment and Assumption Agreements, each dated
February 1, 2007, LBHI subsequently assigned the Split Note
A-1 to Central Pacific, the Split Note A-2 to Landesbank Sachsen
Girozentrale (predecessor in interest to LBBW) and the Split Note
A-3 to Deutsche Hypo. LBHI retained the Split Note A-4, the
Split Note A-5 and the Split Note B. Swedbank subsequently
became the assignee and successor-in-interest to the Split Note
B.
G.
Pursuant to the Co-Lending Agreement, dated as of February 1,
2007, as amended from time to time (the “ Co-Lending
Agreement ”), among LBHI, as agent, and the holders of
the Split Notes, the holders of the Split Notes appointed LBHI as
agent for the holders of the Split Notes (in such capacity, the
“ Prior Agent ”).
H.
Pursuant to a Master Assignment and Assumption and Modification
Agreement, dated as of the date hereof, among Prior Agent, the
holders of the Split
2
Notes, the Lenders and Borrower, the
holders of the Split Notes assigned their outstanding loans and a
portion of their funding commitments under the Original
Construction Loan Agreement to the Lenders and the remaining
portion of the unfunded loan commitment of the Split Note Holders
under the Original Construction Loan Agreement was cancelled, and a
portion of the outstanding balance of the Split Note B was
repaid.
I.
Pursuant to a letter agreement dated as of the date hereof among
Borrower, the Lenders and the Prior Agent as resigning agent and
the Agent as successor agent, (i) the Prior Agent resigned as
agent for the Lenders, (ii) Agent was appointed the successor
agent for the Lenders and (iii) the Prior Agent assigned to
the Agent its rights and privileges as agent under the Co-Lending
Agreement and the Loan Documents.
J.
Borrower, the Lenders and Agent have entered into an Amended and
Restated Construction Loan Agreement (the “ Amended and
Restated Loan Agreement ”), dated as of the date hereof,
which amends and restates the Original Loan Agreement in its
entirety and supersedes and terminates the Co-Lending
Agreement.
K.
Borrower, Agent, the Lenders, Guarantors, Holdings, Exclusive
Resorts, and MII hereto desire to modify and amend the Loan
Documents in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of
the covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower, Agent, the Lenders, Guarantors,
Holdings, Exclusive Resorts and MII, intending to be legally
bound, do hereby covenant and agree as follows:
1.
Recitals and Definitions . The recitals set forth herein are
true and accurate and are incorporated herein by reference.
Capitalized terms which are not specifically defined herein shall
have the meanings set forth in the Amended and Restated Loan
Agreement.
2.
Amendments to Loan Documents . The Loan Documents,
other than the Amended and Restated Loan Agreement, are hereby
amended, supplemented and modified as of the date hereof as
follows:
(a)
All references in the Loan Documents to the “Note”
shall mean and refer, collectively, to the Facility A Notes, the
Facility B-1 Notes, the Facility B-2 Notes,
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the Facility C-1 Notes and the
Facility C-2 Notes.
(b)
All references in the Loan Documents to the “Loan”
shall mean the Loans.
(c)
All references in the Loan Documents to the “Loan
Documents” shall mean the Loan Documents.
(d)
All references in the Loan Documents to the “Loan
Agreement” shall mean the Original Loan Agreement, as amended
and restated by the Amended and Restated Loan Agreement, as the
same may be amended, modified and supplemented from time to
time.
(e)
All references in the Loan Documents to the “CM
Agreement” shall mean the Project Management Development
Agreement between Kapalua Bay, LLC and The Ritz Carlton Development
Company, Inc. dated as of October 1, 2004, as amended by
the First Addendum to Project Management Development Agreement,
dated as of January 21, 2009, as the same may be further
amended, modified and supplemented from time to time.
(f)
All references in the Loan Documents to any Loan Document shall be
deemed to mean such Loan Document, as modified by this Second
Amendment or the Second Omn