EXHIBIT 10.18
-------------
CONTRIBUTION AGREEMENT
----------------------
This Agreement, made as of this 27th day of November, 2000, by and
among Amfac/JMB Hawaii, L.L.C, a Hawaii limited liability company ("AHI"),
Amfac Property Investment Corp., a Hawaii corporation ("APIC"), Pioneer
Mill Company, Limited, a Hawaii corporation ("PMCo"), Northbrook
Corporation, a Delaware corporation ("Northbrook"), AF Investors, LLC, a
Delaware limited liability company ("AFI"), and Xxxx Xxxxxx Transportation
Company, an Arizona corporation ("FHTC" and, together with Northbrook and
AFI, the "Senior Debtholders").
WITNESSETH:
WHEREAS, AHI, successor by merger to Amfac/JMB Hawaii, Inc., a Hawaii
corporation, is the issuer of certain Certificate of Land Appreciation
Notes, due 2008 (the "COLAs") which COLAs (the holders of which from time
to time are referred to herein as the "COLA Holders") are subordinated
indebtedness of AHI and are governed under the provisions of that certain
Indenture (as amended or supplemented, the "Indenture") dated as of
March 14, 1989, by and among AHI, as Issuer, certain of its subsidiaries
(each subsidiary of AHI being referred to herein as a "Subsidiary", and
collectively with AHI, the "AHI Group"), as guarantors (the "COLA
Guarantors") and Bank One, N.A., successor in interest to Continental Bank,
National Association, as Trustee (the "Trustee"); and,
WHEREAS, pursuant to the Indenture, AHI and the COLA Guarantors are
entitled from time to time to incur or become obligated in respect of
indebtedness that is superior in priority to the COLAs, and which is
defined as "Senior Indebtedness" in the Indenture (hereinafter, the "Senior
Debt"), some of which was pre-existing at the time the COLAs were issued;
and,
WHEREAS, AHI and certain of the Subsidiaries are primarily liable as
borrowers (collectively, the "Borrowers"), or secondarily liable as
guarantors (the "Senior Debt Guarantors") pursuant to separate guarantees
made by the Senior Debt Guarantors in favor of the Senior Debtholders, as
applicable (the "Senior Debt Guarantees"), with respect to certain notes
held by the Senior Debtholders that constitute Senior Debt, and are listed
in EXHIBIT A attached hereto (as they may be amended, including by this
Agreement, the "Senior Notes"); and,
WHEREAS, the Borrowers and the Senior Debt Guarantors have caused the
Senior Notes to be secured by certain mortgages on real property (the
"Senior Debt Secured Property"), which mortgages are listed in EXHIBIT B
attached hereto (the "Mortgages", and, together with any other instruments
or documents evidencing or securing the Senior Debt, the "Senior Debt Loan
Documents"); and,
WHEREAS, certain of the Borrowers and the Senior Debt Guarantors have
further caused the Senior Notes to be secured by separate Stock Pledge
Agreements, dated as of August 31, 2000, and various later dates
(collectively, the "Stock Pledges"), whereby each such Borrower and Senior
Debt Guarantor has pledged the stock of certain of its subsidiaries to
Northbrook, as agent on behalf of all of the Senior Debtholders, one of
such Stock Pledges being a pledge by AHI of all of the issued and
outstanding stock of APIC; and,
1
WHEREAS, APIC, AHI and PMCo are the borrowers (the "ERS Borrowers")
under a certain Promissory Note, dated June 25, 1991 (the "ERS Note"), made
by the ERS Borrowers in favor of the Employees' Retirement System of the
State of Hawaii ("ERS"), which ERS Note and the mortgages and other
documents securing same (the "ERS Loan Documents") are currently being
renegotiated by the parties thereto (the "ERS Restructuring"); and,
WHEREAS, the Senior Debtholders have previously notified each
Borrower and Senior Debt Guarantor, by letters dated August 14, 2000 (the
"Default Letters") that, as a consequence of the acceleration of the ERS
Note by ERS due to certain alleged defaults thereunder, and as a
consequence of certain other defaults (collectively, the "Existing
Defaults"), the Senior Notes are in default, but that the Senior
Debtholders have not as yet exercised any of their remedies with respect to
such defaults; and,
WHEREAS, by Agreement dated as of November 22, 2000 (the "APIC
Transfer Agreement") APIC has agreed to transfer substantially all of its
real property that is not security for the ERS Note (the "Non-Golf Course
Property") to Kaanapali Development Corp. ("KDC"), as a contribution to its
capital (the "KDC Transfers") and such transfers are ongoing;
WHEREAS, following the KDC Transfers, KDC will be the legal and/or
beneficial owner of the Non-Golf Course Property, and APIC will contribute
the stock of KDC together with its interests in certain other entities, to
Amfac Holdings Corp., a Delaware corporation ("Amfac Holdings"), and APIC
will sell the stock of Amfac Holdings to KDCW, Inc., a Delaware corporation
("KDCW") a subsidiary of AHI (the "Holdings Sale"); and
WHEREAS, certain members of the AHI Group have contracted for the
sale of certain land parcels, the closing of which, should it occur as
expected, will provide additional relief to the cash position of the AHI
Group in the short run, one such parcel being that certain parcel commonly
known as Lot 1 ("Lot1") at the property commonly known as North Beach,
Kaanapali, County of Maui, Hawaii, which is expected to be sold by APIC (as
legal owner thereof) pursuant to that certain Fourth Amendment and
Restatement of Purchase and Option Agreement, dated as of September 19,
2000, by and among AHI, APIC, Amfac Property Development Corp., a Hawaii
corporation, Kaanapali Ownership Resorts, L.P., a Delaware limited
partnership and SVO Pacific, Inc., a Florida corporation (the "Lot 1
Sale"), such Lot 1 being beneficially owned by APIC with respect to a 50%
undivided interest and by AHI with respect to a 50% undivided interest;
and,
WHEREAS, the parties hereto each believe that it is in their best
interest to recapitalize APIC and make certain additional collateral
available, in order to facilitate the ERS Restructuring and as a
consequence maximize the long-term value of the assets of the AHI Group for
the benefit of the AHI Group and the Senior Debtholders, and specifically
that AFI is willing to make a capital investment in APIC in furtherance of
the foregoing only if AFI will receive a controlling interest in APIC; and
WHEREAS, PMCo desires to transfer any property it owns that is
security for the ERS Note to APIC (the "Pioneer Golf Course Property"),
which property is described on EXHIBIT C attached hereto, and AFI has
agreed to make a capital contribution to APIC (the "AFI Capital
Contribution", and together with the contribution of the Pioneer Golf
Course Property, the "Capital Contributions"), in each case following the
Holdings Sale, in return for common stock in APIC (the "Additional Stock"),
such AFI Capital Contribution to consist of a cash contribution of $500,000
to be made by AFI; and,
WHEREAS, the parties intend that the Capital Contributions and the
issuance of Additional Stock hereunder shall occur concurrently and qualify
as a tax-free exchange under Section 351(a) of the Internal Revenue Code of
1986, as amended; and,
2
WHEREAS, the Additional Stock issued to PMCo shall be pledged to the
Senior Debtholders pursuant to amendments to the Stock Pledges previously
made by PMCo to the Senior Debtholders; and,
WHEREAS, the parties agree that such Capital Contributions shall
occur after the consummation of the Lot 1 Sale, but in no event be
effective later than December 31, 2000 (such effective date of the Capital
Contributions being referred to herein as the "Effective Date"); and
WHEREAS, PMCo and the Senior Debtholders wish to make certain
additional security available to facilitate the ERS Restructuring for the
intended purpose of obtaining a release of PMCo's recourse liability under
the ERS Loan Documents.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is hereby
agreed by the parties hereto as follows:
1. RECITALS. The foregoing recitals are by this reference
incorporated herein and made a part hereof as substantive provisions of
this Agreement.
2. MATTERS CONCERNING CAPITAL CONTRIBUTIONS.
a. TRANSFER AND CONVEYANCE OF PIONEER GOLF COURSE PROPERTY.
Effective as of the Effective Date, PMCo hereby agrees that it shall
assign, convey, quit claim and transfer to APIC, without any representation
or warranty whatsoever, as a contribution to APIC's capital, all of its
right, title and interest in and to the Pioneer Golf Course Property,
subject to all liens, encumbrances, rights, obligations, easements, rights
of way and debts pertaining thereto, both of record or otherwise. PMCo and
APIC agree to enter into such separate documentation (the "APIC Transfer
Documents") as APIC may reasonably request in order to memorialize the APIC
Transfers and place them of record; provided, that in the event that any
such APIC Transfer Documents are executed or placed of record after the
Effective Date, the entire beneficial and economic interest of PMCo therein
shall nevertheless be deemed to have been transferred by PMCo to APIC as of
the Effective Date.
b. AFI CAPITAL CONTRIBUTION TO APIC. On the Effective Date, AFI
agrees to make the AFI Capital Contribution to APIC. AHI represents that it
currently owns all 1000 issued and outstanding shares of common stock of
APIC, and that APIC has no other stock or other equity interests that are
currently outstanding, nor does AHI or any other party have any option or
other right to purchase or receive any equity interests in APIC, except
pursuant to the Stock Pledges. As a consequence of the contribution by AFI
in this Section 2.b. and the contribution by PMCo pursuant to Section 2.a.
and any contribution by PMCo of all or a portion of the Additional ERS
Security Parcel (as provided in Section 4.b. below), APIC shall issue 1000
shares of common stock to PMCo and 10000 shares of common stock to AFI. The
parties hereto agree that AFI would not make the AFI Capital Contribution
without receiving a controlling interest in APIC.
c. CONSENT BY SENIOR DEBTHOLDERS. The Senior Debtholders hereby
consent to the Other Capital Contributions, in each case subject to the
Senior Debt Loan Documents.
3
d. RATIFICATION OF GUARANTEES AND STOCK PLEDGES. AHI hereby
ratifies and confirms that the issuance of additional shares by APIC
hereunder shall not affect the lien on the shares of APIC held by AHI and
granted to the Senior Debtholders pursuant to the Stock Pledges, which
shall continue in full force and effect. PMCo agrees that, on the Effective
Date, it shall execute and deliver a First Amendment to Stock Pledge
Agreement, in the form of EXHIBIT D attached hereto, for the common stock
of APIC issued to PMCo pursuant to this Agreement. Furthermore, AHI, APIC
and PMCo ratify and confirm each of the Senior Debt Guarantees previously
made by them and acknowledge that this Agreement shall not be construed as
a modification or waiver of any of the provisions thereof. The parties
hereto acknowledge and agree that subsection is a material inducement to
the execution and delivery of this Agreement by the Senior Debtholders and
the consents provided herein.
e. TAX-FREE EXCHANGE; DECONSOLIDATION OF APIC. The parties intend
that the Capital Contributions and the issuance of Additional Stock
hereunder shall occur concurrently and qualify as a tax-free exchange under
Section 351(a) of the Internal Revenue Code of 1986, as amended. Upon the
consummation of the Capital Contributions, APIC shall no longer be a member
of the consolidated group of AHI and Northbrook for federal and state
income tax purposes and shall thereafter file separate tax returns.
3. MATTERS CONCERNING ERS RESTRUCTURING.
a. The ERS Borrowers agree to use reasonable efforts to negotiate
and conclude the ERS Restructuring; provided, however, that they shall be
under no obligation to enter into any agreement with the ERS to do so.
b. For purposes of negotiating such an ERS Restructuring, the
Senior Debtholders hereby consent to the execution and delivery of an
amendment to the ERS Loan Documents that will provide ERS with additional
security for the ERS Note to consist of such portion of the proceeds of the
sale of the certain property owned by PMCo known as Lot 10-M-4 (also known
as Parcel 22/23) in the Royal Kaanapali Golf Course Estates (the
"Additional ERS Security Parcel"), described in EXHIBIT E attached hereto,
as may be negotiated by the ERS Borrowers. If requested by the ERS
Borrowers, the Senior Debtholders will subordinate their security interest
in the Additional ERS Security Parcel to any rights granted therein
pursuant to the ERS Restructuring, pursuant to subordination documentation
reasonably acceptable to the Senior Debtholders, which documentation shall
not encumber or impair the rights of the Senior Debtholders in any other
Senior Debt Secured Property. Upon the request of the Senior Debtholders,
PMCo shall contribute such interest in the Additional ERS Security Parcel
to APIC as the Senior Debtholders may direct, subject to the Senior Debt
Loan Documents, prior to the grant of any such rights to ERS.
c. Any ERS Restructuring that does not include the release by ERS
of the recourse obligations of PMCo under the ERS Loan Documents, shall
require the written consent of the Senior Debtholders, which they may grant
or withhold in their sole and absolute discretion.
4. REPRESENTATIONS AND WARRANTIES OF PARTIES. Each party hereby
represents and warrants to each other party as follows:
a. DUE INCORPORATION. Such party is duly organized, validly
existing and in good standing under the laws of the state of its
incorporation, with all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted.
4
b. DUE AUTHORIZATION. Such party has full power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by each
party hereto has been duly authorized by such party's board of directors
or other governing body. No other corporate or other proceedings on the
part of such party are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such party.
c. ENFORCEABILITY. Upon execution and delivery by the parties
hereto, this Agreement will be legally binding and enforceable against such
party in accordance with its respective terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, readjustment of debt or similar laws affecting the enforcement
of creditors' rights generally, and to the effect of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and other principles based on concepts of
materiality, reasonableness, good faith, and fair dealing.
5. FURTHER ASSURANCES. Upon the request of any party, each other
relevant party shall execute and deliver such further instruments or
documents and take such further acts as may be reasonably necessary to
carry out and give effect to the provisions of this Agreement.
6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, none of AHI, APIC or PMCo may assign any of
its right, title, interest, duties or obligations under this Agreement
without the written approval of each of the Senior Debtholders, which
approval may be granted or withheld in their sole and absolute discretion.
7. NO THIRD PARTY BENEFICIARIES.This Agreement is solely for the
benefit of the parties hereto. No provision of this Agreement shall be
deemed to confer upon third parties any remedy, claim, liability,
reimbursement, cause of action or other right in excess of those existing
without reference to this Agreement.
8. AMENDMENTS AND WAIVERS. Neither this Agreement nor any terms
hereof may be amended, modified or waived other than by a written agreement
executed by the party against which such amendment, modification or waiver
is sought to be enforced.
9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10. GOVERNING LAW. Except to the extent that the laws of the state
of the formation of any party may govern the transfer or issuance of equity
interests in such party, or the laws of the State of Hawaii may govern the
transfer or encumbrance of real property in connection herewith, this
Agreement shall be construed and enforced in accordance with the internal
laws of the State of Illinois, the parties hereto hereby irrevocably and
unconditionally consent to submit to the jurisdiction of the courts of the
State of Illinois and of the United States of America located in Illinois
for any actions, suits or proceedings arising out of or relating to this
Agreement and the transactions contemplated hereby.
11. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this Agreement shall be
prohibited by or be invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
5
12. WAIVERS. The failure of a party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its
right at a later time to enforce the same. No waiver by a party of any
condition or of any breach of any term, covenant, representation or
warranty contained in this Agreement shall be effective unless in writing,
and no waiver in any one or more instances shall be deemed to be a further
or continuing waiver of any such condition or breach in other instances or
a waiver of any other condition or breach of any other term, covenant,
representation or warranty.
13. MISCELLANEOUS. This Agreement represents the entire agreement
among the parties with respect to the matters set forth herein, and may not
be amended or modified except in writing signed by all parties. Each party
acknowledges that there have been no additional oral or written
representations or warranties. Notwithstanding the foregoing, this
agreement shall not fsupercede any prior written agreement that is
referenced herein (or any agreement referenced in any such agreement)
except to the extent expressly set forth herein. Time is of the essence of
this Agreement. The headings preceding the text of Articles and Sections
included in this Agreement are for convenience only and shall not be deemed
part of this Agreement or be given any effect in interpreting this
Agreement.
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered on the day and year first above written.
AMFAC/JMB HAWAII, L.L.C., NORTHBROOK CORPORATION
a Hawaii limited liability company a Delaware corporation
By: By:
------------------------- -------------------------
Its: Its:
------------------------- -------------------------
AMFAC PROPERTY INVESTMENT CORP., XXXX XXXXXX TRANSPORTATION
a Hawaii corporation COMPANY,
an Arizona corporation
By: By:
------------------------- -------------------------
Its: Its:
------------------------- -------------------------
PIONEER MILL COMPANY, LIMITED, AF INVESTORS, LLC.
a Hawaii corporation a Delaware limited liability
company
By: AF MANAGERS, INC.,
A Delaware corporation,
By: By:
------------------------- -------------------------
Its: Its:
------------------------- -------------------------
7
INDEX OF EXHIBITS
-----------------
Exhibit A Senior Notes
Exhibit B Mortgages
Exhibit C Pioneer Golf Course Property
Exhibit D Form of First Amendment to Stock Pledge Agreement
Exhibit E Additional ERS Security Parcel
8
EXHIBIT A
SENIOR NOTES
------------
NOTES:
DATE OF
NOTE PRINCIPAL AMOUNT OBLIGOR OBLIGEE
2001 NOTES:
2/24/00 $10,000,000.00 (revolver,
$2,788,250 advanced on 2/24/00,
$2,788,250 advanced on 9/27/00) AHI Northbrook
6/2/00 $500,000 (plus later advances of
$200,000 on 6/27/00, $650,000 on
9/27/00 and $200,000 on 11/21/00) TLPC Northbrook
6/27/00 $500,000 (plus later advances of
$550,000 on 9/27/00 and
$1,700,000 on 11/21/00) TLPC Northbrook
2007 NOTE
(AND RELATED
SUPERCEDED NOTES):
8/18/89 $28,097,831.90 AHI Amfac
(Replaced by
notes dated
8/18/90 and
12/31/90)
5/31/95 $52,000,000.00 AHI Northbrook
(Replaced by note
dated 6/1/96)
8/28/95
(Advance
added to
5/31/95
note) $1,650,000.00 AHI Northbrook
8/30/95
(Advance
added to
5/31/95
note) $4,413,940.00 AHI Northbrook
7/7/95
(Advance
added to
5/31/95
note) $2,500,000.00 AHI Northbrook
7/21/95
(Advance
added to
5/31/95
note) $250,000 AHI Northbrook
10/31/95
(Advance
added to
5/31/95
note) $1,000,000 AHI Northbrook
2/28/96
(Advance
added to
5/31/95
note) $4,413,840.00 AHI Northbrook
3/21/96
(Advance
added to
5/31/95
note) $2,970,000.00 AHI Northbrook
4/8/96
(Advance
added to
5/31/95
note) $1,155,000.00 AHI Northbrook
4/15/96
(Advance
added to
5/31/95
note) $500,000 AHI Northbrook
4/15/96
(Advance
added to
5/31/95
note) $2,000,000 AHI Northbrook
4/23/96
(Advance
added to
5/31/95
note) $900,000 AHI Northbrook
6/26/96
(Advance
added to
5/31/95
note) $1,148,689.00 AHI Northbrook
8/30/96
(Advance
added to
5/31/95
note) $4,413,840.00 AHI Northbrook
9/30/96
(Advance
added to
5/31/95
note) $1,244,262.00 AHI Northbrook
1996-
Various $7,922,000.00 AHI Northbrook
2/17/97 $104,759,324.00 AHI Northbrook
(Replaced by
Replacement
Note #1 and
Replacement
Note #2 -
see below)
1/1/98 $99,594,751.09 AHI Northbrook (Sold
to FHTC on 1/1/98
for a note in a
like amount.) This
is Replacement
Note #1 for
2/17/97 note.
1/1/98 Revolver (Face of $15,000,000,
balance when contributed of
$8,752,967.90) AHI Northbrook
(Contributed to
AHI on 12/31/98)
* This is Replacement Note #2 for 2/17/97 note.
2008 Notes:
5/25/99 $21,318,000.00 AHI AF Investors
5/31/99 $26,375,300.00 AHI AF Investors
* Notes in italics are still outstanding.
EXHIBIT B
MORTGAGES
---------
1. Mortgage, Security Agreement and Financing Statement dated August 31,
1999, in favor of AFI, recorded in the Bureau of Conveyances of the State
of Hawaii as Document No. 99-140350, as amended by Amendment of Mortgage
dated January 31, 2000, recorded in said Bureau as Document No. 2000-
012980, and further amended by Amendment of Mortgages dated November 1,
2000 (the "Amendment"), recorded in said Bureau on November 6, 2000 as
Document No. 2000-156556.
2. Mortgage, Security Agreement and Financing Statement dated August 31,
1999, in favor of Northbrook (as predecessor to FHTC), recorded in said
Bureau as Document No. 99-140349, as amended by Amendment of Mortgage dated
January 31, 2000, recorded in said Bureau as Document No. 2000-012979, and
further amended by the Amendment, as assigned to FHTC pursuant to an
unrecorded Sale Assignment and Assumption Agreement dated December 17,
1998, but effective as of January 1, 1998, and by Assignment of Mortgage
dated November 2, 2000, recorded in said Bureau on November 6, 2000 as
Document No. 2000-156555.
3. Additional Security Mortgage, Security Agreement and Financing
Statement dated November 1, 2000, in favor of AFI, FHTC and Northbrook,
recorded in said Bureau on November 6, 2000 as Document No. 2000-156571.
EXHIBIT C
PIONEER GOLF COURSE PROPERTY
----------------------------
FIRST:
An undivided 31% interest in and to the following:
That certain parcel of land (being a portion of the lands described
in and covered by Royal Patent Number 2567, Land Commission Award Number
7715, Apana 3, Part 1 to Lota Kamehameha) situate, lying and being at
Hanakaoo, District of Lahaina, Island and County of Maui, State of Hawaii,
being LOT 10-C-1 of the "ROYAL KAANAPALI GOLF COURSE SUBDIVISION", more
particularly described in EXHIBIT C-1 attached hereto.
SECOND:
An undivided 31% interest in and to the following:
That certain parcel of land (being a portion of the lands described
in and covered by Royal Patent Number 2567, Land Commission Award Number
7715, Apana 3, Part 1 to Lota Kamehameha) situate, lying and being at
Hanakaoo, District of Lahaina, Island and County of Maui, State of Hawaii,
being LOT 10-C-2 of the "ROYAL KAANAPALI GOLF COURSE SUBDIVISION", more
particularly described in EXHIBIT C-2 attached hereto.
THIRD:
An undivided 31% interest in and to the following:
That certain parcel of land (being a portion of the lands described
in and covered by Royal Patent Number 2567, Land Commission Award Number
7715, Apana 3, Part 1 to Lota Kamehameha) situate, lying and being at
Hanakaoo, District of Lahaina, Island and County of Maui, State of Hawaii,
being LOT 10-C-3 of the "ROYAL KAANAPALI GOLF COURSE SUBDIVISION", more
particularly described in EXHIBIT C-3 attached hereto.
FOURTH:
An undivided 83% interest in and to the following:
That certain parcel of land (being a portion of the lands described
in and covered by Royal Patent Number 2567, Land Commission Award Number
7715, Apana 3, Part 1 to Lota Kamehameha) situate, lying and being at
Hanakaoo, District of Lahaina, Island and County of Maui, State of Hawaii,
being LOT 10-D-1 of the "ROYAL KAANAPALI GOLF COURSE SUBDIVISION", more
particularly described in EXHIBIT C-4 attached hereto.
FIFTH:
An undivided 18% interest in and to the following:
That certain parcel of land (being a portion of the lands described
in and covered by Royal Patent Number 2567, Land Commission Award Number
7715, Apana 3, Part 1 to Lota Kamehameha) situate, lying and being at
Hanakaoo, District of Lahaina, Island and County of Maui, State of Hawaii,
being LOT 10-N-1 of the "ROYAL KAANAPALI GOLF COURSE SUBDIVISION", more
particularly described in EXHIBIT C-5 attached hereto.
END OF EXHIBIT C
----------------
EXHIBIT D
FIRST AMENDMENT TO STOCK PLEDGE AGREEMENT
-----------------------------------------
This FIRST AMENDMENT TO STOCK PLEDGE AGREEMENT (this "Amendment"), is
dated as of December 28, 2000 between Pioneer Mill Company, Limited, a
Hawaii corporation ("Pledgor") and Northbrook Corporation ("Pledgee"), as
agent for itself and the ratable benefit of the lenders Xxxx Xxxxxx
Transportation Company ("FHTC") and AF Investors, LLC ("AFI", and together
with Pledgee and FHTC, the Lenders").
W I T N E S S E T H:
--------------------
WHEREAS, Pledgor and Pledgee, on behalf of itself and the Lenders,
have previously entered into that certain Stock Pledge Agreement, dated as
of August 31, 2000 (the "Agreement"), whereby Pledgor pledged the issued
and outstanding shares of certain subsidiaries and affiliates of Pledgor
that are owned by Pledgor (the "Pioneer Subsidiaries"), to Pledgee, as
security for Pledgor's obligations to Pledgee respecting certain promissory
notes (the "Notes"); and,
WHEREAS, pursuant to a certain Contribution Agreement, dated as of
November 27, 2000, by and among Amfac/JMB Hawaii, L.L.C, a Hawaii limited
liability company ("AHI"), Amfac Property Investment Corp., a Hawaii
corporation ("APIC"), Pledgor and the Lenders, Pledgor has as of the date
hereof contributed certain assets to APIC in return for 1000 shares of
common stock therein (the "APIC Shares"); and,
WHEREAS, Pledgor and Pledgee now desire to amend the Agreement in
order that Pledgor may hereby pledge to Pledgee all of the APIC Shares to
further secure the Notes, the Senior Debt and the agreements between them.
NOW THEREFORE, in consideration of the mutual promises contained
herein, Pledgor and Pledgee hereby agree to amend the Agreement as follows:
1. ADDITIONAL COLLATERAL. Schedule I of the Agreement is hereby
amended and restated in accordance with Schedule I attached hereto and made
a part hereof, for the purpose of including all of the APIC Shares as
additional Collateral under the Agreement (the "Additional Collateral").
Pledgee shall hereafter have all of the same rights and remedies with
respect to the Additional Collateral as if such Additional Collateral had
been a part of the Collateral on the original date of the Agreement.
Certificates representing the Additional Collateral set forth on SCHEDULE I
hereto have previously been delivered to Pledgee. Proper instruments of
assignment duly executed in blank by Pledgor, are herewith delivered to
Pledgee.
2. EFFECT. Except as set forth in this Amendment, all the terms
and provisions of the Agreement shall continue in full force and effect.
3. CAPITALIZED TERMS; COUNTERPARTS; CAPTIONS AND HEADINGS.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to as such terms in the Partnership Agreement. This
Amendment may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and
the same instrument. Captions and headings are for descriptive purposes
only and shall not control or alter the meaning of this Amendment as set
forth in the text.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first written above.
PIONEER MILL COMPANY, LIMITED,
a Hawaii corporation
By:
------------------------------
Its:
------------------------------
NORTHBROOK CORPORATION, on behalf of itself
and XXXX XXXXXX TRANSPORTATION
COMPANY and AF INVESTORS, LLC.
By:
------------------------------
Its:
------------------------------
SCHEDULE I
PLEDGED SHARES
--------------
ISSUER CLASS OF NUMBER OF CERTIFICATE
ISSUER SHARES SHARES NUMBER(S)
------ -------- --------- -----------
Waiahole irrigation Company,
Limited Common 1,000 3
Kekaha Sugar Company, Limited Common 200,000 6
Kaanapali Estate Coffee, Inc. Common 1,000 4
Puna Sugar Company, Limited Common 250,000 3
Oahu Sugar Company, Limited Common 300,000 16
The Lihue Plantation Company,
Limited Common 112,500 3
Amfac Property Investment Corp.Common 1,000 7
STOCK POWER
-----------
For value received, Pioneer Mill Company, Limited, a Hawaii
corporation, hereby sells, assigns and irrevocably transfers to Northbrook
Corporation, 1000 shares of Common Stock of Amfac Property Investment
Corp., a Hawaiian corporation, represented by Certificate No(s). _____,
standing in the name of the undersigned on the books of said company.
The undersigned hereby irrevocably constitutes and appoints ______________
_________________________ attorney to transfer the said stock on the books
of said company, with full power of substitution in the premises.
This Power is given pursuant to that certain Stock Pledge Agreement,
dated as of August 31, 2000, made by the undersigned in favor of
Northbrook, as agent, as amended by that certain First Amendment to Stock
Pledge Agreement, dated as of December 28, 2000. Power is given to the
holder hereof to fill in any all blanks in this instrument.
The undersigned ratifies and confirms all acts that said attorney or
any substitute(s) under this power shall lawfully do by virtue hereof.
Dated as of ____________________, 20_____.
PIONEER MILL COMPANY, LIMITED
By:
------------------------------
Name:
Title:
EXHIBIT E
ADDITIONAL ERS SECURITY PARCEL
------------------------------
ADDITIONAL ERS SECURITY PARCEL
LOT 10-M-4
Royal Kaanapali Golf Course Subdivision
All of that certain parcel of land being a portion of Lot 10-M of the
Royal Kaanapali Golf Course Subdivision, being also a portion of R.P. 2567,
L.C. Aw. 7715, Ap. 3 to Lota Kamehameha
Situated at Hanakaoo, Lahaina, Maui, Hawaii
Beginning at the Southeast corner of this parcel of land, being also
the Westerly corner of Lot 6 of the Honokowai Subdivision, the coordinates
of said point of beginning referred to Government Survey Triangulation
Station "MANINI", being 5,325.15 feet South and 10,423.97 feet West and
running by azimuths measured clockwise from true South:
Along Lot 6 of the Honokowai Subdivision along the
top of gulch for the next 15 courses;
1. 78 degree 04' 148.96 feet;
2. 95 degree 51' 181.15 feet;
3. 55 degree 01' 419.82 feet;
4. 81 degree 54' 103.47 feet;
5. 125 degree 50' 342.62 feet;
6. 107 degree 10' 128.99 feet;
7. 88 degree 17' 205.12 feet;
8. 70 degree 40' 70.01 feet;
9. 47 degree 09' 168.99 feet;
10. 22 degree 58' 189.08 feet;
11. 69 degree 45' 204.40 feet;
12. 129 degree 18' 97.96 feet;
13. 66 degree 27' 115.44 feet;
14. 97 degree 42' 34.64 feet;
15. 144 degree 05' 48.23 feet;
Thence along Lot 10-C-1 of the Royal
Kaanapali Golf Course Subdivision on a
curve to the left with a radius of
1884.86 feet, the chord azimuth and
distance being:
16. 158 degree 18' 37" 592.11 feet;
17. 149 degree 16' 24" 43.46 feet along same;
Thence along same on a curve to the right
with a radius of 1934.86 feet, the chord
azimuth and distance being:
18. 163 degree 46' 24" 968.90 feet along same;
19. 178 degree 16' 24" 45.39 feet along same;
Thence along same on a curve to the left with
a radius of 1884.86 feet, the chord azimuth
and distance being:
20. 173 degree 06' 48.5" 339.03 feet along same;
21. 259 degree 39' 32" 38.62 feet along Lot 10-K of the Royal
Kaanapali Golf Course Subdivision;
22. 264 degree 22' 62.09 feet along Lot 10-D-1 of the Royal
Kaanapali Golf Course Subdivision;
23. 239 degree 18' 178.77 feet along same;
24. 223 degree 00' 135.08 feet along same;
25. 250 degree 06' 268.39 feet along same;
26. 274 degree 53' 186.22 feet along same;
27. 263 degree 50' 185.84 feet along same;
28. 238 degree 50' 132.45 feet along same;
29. 274 degree 41' 182.17 feet along same;
30. 251 degree 10' 44.87 feet along same;
31. 202 degree 47' 34.01 feet along same;
32. 180 degree 58' 43.71 feet along same;
33. 160 degree 50' 202.49 feet along same;
34. 247 degree 21' 640.29 feet along Lot 10-M-1 of the
Royal Kaanapali Golf Course Subdivision;
35. 252 degree 34' 241.67 feet along same;
Thence along Lot 6 of the Honokowai
Subdivision on a curve to the right
with a radius of 1132.00 feet,
the chord azimuth and distance being:
36. 346 degree 03' 71.77 feet;
37. 347 degree 52' 920.92 feet along same;
Thence along same on a curve to the right
with a radius of 1172.00 feet, the chord
azimuth and distance being:
38. 353 degree 07' 30" 214.82 feet;
39. 358 degree 23' 675.00 feet along same;
Thence along same on a curve to the left with
a radius of 678.00 feet, the chord azimuth
and distance being:
40. 341 degree 03' 403.99 feet;
41. 323 degree 43' 200.00 feet along same;
Thence along same on a curve to the right
with a radius of 452.00 feet, the chord
azimuth and distance being:
42. 330 degree 26' 24" 105.84 feet to the point of beginning and
containing an area of 110.847 Acres.
END OF EXHIBIT E
----------------
