EXHIBIT 99.1
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SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("this Agreement") is made and entered into
as of the 14th day of March, 2003, by and between AMFAC PROPERTY INVESTMENT
CORP., a Hawaii corporation ("APIC"), AMFAC HAWAII, LLC, a Hawaii limited
liability company (together with any successor entity by merger or
otherwise by operation of law, "AHI"), and PIONEER MILL COMPANY, LIMITED, a
Hawaii corporation (together with any successor entity by merger or
otherwise by operation of law, "PMCo"), collectively the "Amfac Parties,"
and the EMPLOYEES' RETIREMENT SYSTEM OF THE STATE OF HAWAII, a governmental
agency of the State of Hawaii (the "ERS").
WHEREAS:
A. AHI is a Hawaii limited liability company, which does business
in the State of Hawaii. AHI was formerly known as Amfac/JMB Hawaii, L.L.C.,
and is the successor by merger to Amfac/JMB Hawaii, Inc., which was a
Hawaii corporation. AHI is the parent of PMCo and was formerly the parent
of APIC.
B. PMCo is a Hawaii corporation, which does business and owns
property in the State of Hawaii. PMCo is owned entirely by AHI, and PMCo in
turn owns a minority interest in APIC.
C. APIC is a Hawaii corporation which owns property and does
business in the State of Hawaii. APIC owns two 18-hole golf courses, known
collectively as the "Royal Kaanapali Golf Courses" (and individually
referred to as the "North Course" and the "South Course"), located at
Kaanapali, Maui, Hawaii, together with a club house, various other
improvements, personal property related thereto (the "Golf Courses"), and
two improved or partially improved parcels adjacent or nearly adjacent to
the Golf Courses. One of the improved parcels is designated Lot 73-A and
contains a building that houses a restaurant called "Luigi's" (the "Luigi's
Parcel"). The other improved parcel is designated Lot 10-N-l, and is
partially improved with various offices, warehouses, and maintenance yard
facilities (the "Resort Maintenance Lot").
D. On February 27, 2002, AHI and PMCo (along with other related
entities, including Kaanapali Development Corp. ("KDC"), but not including
APIC), filed Petitions for Relief under Chapter 11 of the United States
Bankruptcy Code, in the United States Bankruptcy Court for the Northern
District of Illinois (Eastern Division) (the "Bankruptcy Court"). Those
proceedings (the "Bankruptcy Proceedings") are now pending, as jointly
administered proceedings, under the designations IN RE AMFAC HAWAII, LLC,
Case No. 02-07637 (Bankr. N.D. Ill. Eastern Division), IN RE PIONEER MILL
COMPANY, LIMITED, Case No. 02-07662 (Bankr. N.D. 111. Eastern Division),
and IN RE KAANAPALI DEVELOPMENT CORP., Case No. 02-07654 (Bankr. N.D. 111.
Eastern Division).
E. The ERS is a governmental agency of the State of Hawaii which,
through a Board of Trustees, administers the State's pension fund for the
benefit of former State and County employees who have retired.
F. On June 25, 1991, the ERS made a loan to APIC, PMCo, and
Amfac/JMB Hawaii, Inc. (now AHI) in the amount of $66,000,000 (the "Loan").
As used herein, the term "Amfac Parties" and the "Borrowers" shall both
mean and include APIC, PMCo, and AHI (and shall include, as applicable,
AHI's predecessor and AHI under its current and former names).
G. The Loan was made pursuant to a Loan Agreement, dated June 25,
1991 (the "Loan Agreement") and, as part of the Loan transaction, and for
the purpose of evidencing the Amfac Parties' obligation to repay the Loan,
the Amfac Parties executed and delivered to the ERS a Promissory Note in
the amount of $66,000,000, signed by each of the Amfac Parties as joint and
several makers of the Promissory Note.
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H. In addition, as part of the Loan transaction, and for the
purposes of securing the obligations to the Amfac Parties to the ERS, APIC
and PMCo (which at the time owned a fractional interest in some of the Golf
Course parcels and in the Resort Maintenance Lot), executed and delivered
to the ERS, a Real Property Mortgage and Financing Statement (the
"Mortgage"), which was duly recorded in the Bureau of Conveyances of the
State of Hawaii as Document No. 91-085691, filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii as Document
No. 1830690, and noted on the State of Hawaii Land Court Transfer
Certificates of Title Nos. 290,693, 246,959, 281,597, and 329,501. The
Mortgage created a first priority lien on all of APIC's and PMCo's right,
title, and interest in and to the Golf Courses, the Luigi ' s Parcel, and a
portion of the Resort Maintenance Lot, and a lien on certain easements over
and respecting adjacent or nearly-adjacent land owned by PMCo, all as more
particularly described in the Mortgage.
I. In addition, at the same time, and as part of the same
transaction, and for the purpose of further securing the Amfac Parties'
obligations to the ERS, APIC and PMCo executed and delivered a Security
Agreement, a Collateral Assignment of Agreements and Power of Attorney, and
Financing Statements.
J. Subsequently, and for the purpose of further securing the Amfac
Parties' obligations to the ERS, APIC executed and delivered to the ERS an
Absolute Assignment of Rentals and Lessor's Interest in Leases on March 3,
1994, and a Second Collateral Assignment of Agreements and Power of
Attorney on October 12, 1994.
K. In November 1991, after the Mortgage was recorded, certain land
adjacent to the Golf Courses was consolidated with a parcel of land
encumbered by the Mortgage, and the consolidated parcel was resubdivided to
create a parcel of land designated as "Lot 10-D-l." Similarly, in 1997,
certain land adjacent to the Golf Courses was consolidated with a parcel of
land encumbered by the Mortgage, and the consolidated parcel was
resubdivided to create the Resort Maintenance Lot (Lot 10-N-l). As a
result. Lot 10-D-l now includes land not initially encumbered by the
Mortgage or covered by the Loan Agreement (such land being a portion of the
"Kualapa Loop Extension Area"), and the Resort Maintenance Lot includes
land not initially encumbered by the Mortgage or covered by the Loan
Agreement.
L. On April 18, 1996, but effective as of January 1, 1995, the
Amfac Parties and the ERS executed an Amendment of Loan Agreement (the
"Loan Amendment"), amending the Loan Agreement. Among other things, the
Loan Amendment extended the maturity date of the Loan, changed the interest
rate, provided that a portion of interest would be paid quarterly and that
a portion would be deferred, added a so-called "appreciation premium," and
changed the recourse provisions of the Loan.
M. Commencing in approximately 1994, the Amfac Parties requested
that the ERS release from the Mortgage certain land encumbered or otherwise
affected by the Mortgage (including, subsequently, the Kualapa Loop
Extension Area, the Resort Maintenance Lot and the Luigi's Parcel) and that
the ERS consent to certain easements affecting lands encumbered by the
Mortgage, as the Amfac Parties contend is required by the terms and
provisions of the Loan Agreement and the Mortgage.
N. Although the ERS consented to certain of the Amfac Parties'
requests for releases and consents, it did not consent to others because
the ERS contends that it is not required to consent to the Amfac Parties'
requests by the terms and provisions of the Loan Agreement, as amended, and
because the ERS contends that the Amfac Parties' have been and are in
monetary and non-monetary default under the Loan Agreement, as amended, and
under other Loan documents.
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O. On October 22, 1999, the Amfac Parties and the ERS entered into
a "Memorandum Agreement," pursuant to which the Amfac Parties paid to the
ERS the amount of approximately $5,860,337.70, consisting of certain
allegedly delinquent and other sums allegedly due under the Loan Agreement,
as amended, the ERS consented to certain of the easements requested by the
Amfac Parties, and the parties to the Memorandum Agreement resolved certain
other matters. Pursuant to the Memorandum Agreement, and for the purpose of
adding certain collateral to the Mortgage (including rights with respect to
certain land referred to as the "Remnant Parcels") as provided in the
Memorandum Agreement and confirming the ERS' security, APIC and PMCo
executed and delivered to the ERS that certain First Amendment and
Confirmation of Real Property Mortgage and Financing Statement (the "First
Amendment of Mortgage"). The First Amendment of Mortgage was duly recorded
in the Bureau of Conveyances of the State of Hawaii as Document No.
99-173736, filed in the Office of the Assistant Registrar of the Land Court
of the State of Hawaii as Document No. 2585582, and noted on the State of
Hawaii Land Court Transfer Certificates of Title designated above. (The
Loan Agreement, the Promissory Note, the Mortgage, the Security Agreement,
the Collateral Assignment of Agreements and Power of Attorney, the
Financing Statements, the Absolute Assignment of Rentals and Lessor's
Interest in Leases, the Second Collateral Assignment of Agreements and
Power of Attorney, the Loan Amendment, the Memorandum Agreement, the First
Amendment of Mortgage, and all other documents evidencing or securing the
Loan are collectively referred to as the "Loan Documents.")
P. On August 24, 2000, the ERS filed a Complaint in the Circuit
Court of the First Circuit, State of Hawaii (the "State Court"), to
foreclose the Mortgage, as amended by the First Amendment of Mortgage, and
the other security interests held by the ERS in the Golf Courses, the
Luigi's Parcel, the Resort Maintenance Lot, and the other real and personal
property and property rights therein described. The foreclosure action is
pending in the State Court AS EMPLOYEES' RETIREMENT SYSTEM OF THE STATE OF
HAWAII V. AMFAC/JMB HAWAII, L.L.C., ET AL., Civil No. 00-1-2597-08
(Foreclosure) (the "State Foreclosure Action"). In the State Foreclosure
Action, the ERS alleges that the Amfac Parties did not pay the Loan as
required under the Promissory Note and other Loan Documents; that the
entire amount of the Loan has become due and is payable (whether through
acceleration or maturity due to the passage of time); that the Amfac
Parties are in default under the Loan and the Loan Documents; and that the
ERS is entitled to foreclose its Mortgage, as amended, and other security
interests against the real and personal property and property rights
therein described.
Q. From September 26, 2000, to October 31, 2001, the State
Foreclosure Action was held in abeyance, pursuant to a State Court-approved
Standstill Agreement, in order to permit the ERS and the Amfac Parties to
determine if they could reach a consensual resolution of disputed issues.
The "Standstill Period" was extended by informal agreement of the parties
until December 26, 2001. Although the efforts to reach a consensual
resolution were unsuccessful, during such period, in furtherance of such
efforts, and in accordance with the terms of the Standstill Agreement, as
extended, the Amfac Parties paid to the ERS the amount of $11,347,318.97,
consisting of a portion of certain allegedly delinquent and other sums
allegedly due under the Loan Agreement, as amended.
R. On January 4, 2002, the Amfac Parties filed an Answer to the
Complaint in the State Foreclosure Action. Subsequently, on January 11,
2002, the Amfac Parties filed an Amended Answer to the Complaint and a
Counterclaim against the ERS. In the Answer and the Amended Answer, the
Amfac Parties denied certain allegations of the Complaint and asserted
certain defenses to the foreclosure of the Mortgage and the other security
interests, including, but not limited to, defenses based on alleged
fraudulent inducement, alleged breach of obligations and duties by the ERS
related to requested partial releases of the mortgaged property and
consents to various easements, and alleged lack of good faith and fair
dealing on the part of the ERS. In their Counterclaim, the Amfac Parties
alleged, inter alia, that the ERS and its trustees, lawyers, agents, and
consultants have engaged in wrongful conduct, have breached a duty of good
faith and fair dealing, have breached duties imposed on the ERS in the Loan
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Documents, and have sought to enforce rights not provided in those
documents; that, although allegedly being required to do so by the Loan
Documents, the ERS has failed to consent to easements affecting the
mortgaged property and to release the Luigi's Parcel and the Resort
Maintenance Lot; that the ERS' decision to accelerate the Loan for
non-payment was "fundamentally unfair"; and that the actions of the ERS
were likely to cause "adverse impacts" to the Amfac Parties and their
parent subsidiaries and affiliates. Based on said allegations and others in
the Counterclaim, the Amfac Parties have asserted Counts for damages and
punitive damages (in an unspecified amounts) based on fraudulent
inducement, constructive fraud, breach of contract, breach of an implied
covenant of good faith and fair dealing, promissory estoppel, and bad
faith. In addition, the Counterclaim asks for declaratory judgment,
declaring that the Amfac Parties are entitled to certain partial releases,
consents, and easements, and for reformation of the Loan Documents "to
embody the contracts as actually made."
S. On February 4, 2002, the ERS filed a Reply to the Counterclaim
of the Amfac Defendants. In its Reply, the ERS denied the material
allegations of the Counterclaim and asserted various defenses, including,
but not limited to, defenses based on the doctrine of unclean hands, the
doctrine of sovereign immunity, the statute of limitations, and the
doctrine of laches.
T. On the motion of the ERS, the State Court, in the State
Foreclosure Action, appointed Xxxxxx X. Toy as Receiver (the "State Court
Receiver" or the "Receiver"), and he has taken possession of the Golf
Courses, the Luigi's Parcel, the Resort Maintenance Lot, and the Golf
Course operations, and is operating these properties.
U. The Amfac Parties and the ERS wish to resolve their disputes,
including the claims set forth in the State Foreclosure Action, as
hereafter set forth in this Agreement. Each party recognizes the expense
and length of time necessary to continue the State Foreclosure Action,
including the Counterclaim, through trial and any appeals that might
follow, the uncertainty inherent in the outcome of litigation, and the many
difficulties and delays inherent in complex litigation; and each has
concluded that this settlement is in its best interest. Neither this
Agreement, nor any document referred to herein, nor the payment of any
consideration provided herein, is or may be construed to be an admission of
any party of any fault, wrong-doing, or liability whatsoever. To the
contrary, it is recognized by the parties hereto that the settlement
reflected herein is a settlement of disputed and contested matters.
NOW, THEREFORE, in consideration of the premises and the mutual
promises, covenants, agreements, representations, and warranties set forth
in this Agreement, the parties agree as follows:
1. EASEMENTS AND OTHER INSTRUMENTS REQUESTED BY OR FOR THE BENEFIT
OF THE AMFAC PARTIES. Upon approval of this Agreement by the Bankruptcy
Court and State Court as provided in paragraph 15 below (collectively
"Court Approval"), the ERS (or the ERS' Designee that shall acquire title
to the affected portion of the property to be transferred to it pursuant to
this Agreement), PMCo, and KDC (and hereafter "KDC" shall include any
successor entity by merger or otherwise by operation of law), as
applicable, shall execute the Grants of Easements, Declarations and Grants
of Easements, and other documents identified in Exhibit "A" attached
hereto, in the forms attached hereto as Exhibits A-l through A-17.
The Grants of Easements, Declarations and Grants of Easements, and other
documents identified in Exhibits "A" and "A-l" through "A-17" (collectively
the "Exhibit 'A' Documents") shall be deposited, immediately following
execution, with Title Guaranty Escrow Services, Inc. (the "Escrow Company")
pursuant to the Escrow Instructions (as provided for and defined in
paragraph 13 below) and, in accordance with the Escrow Instructions, shall
be recorded and shall be delivered upon the Closing (as defined and
provided for in paragraph 13 below) of the transactions as provided in this
Agreement.
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2. EASEMENTS AND OTHER INSTRUMENTS IN FAVOR OF OR FOR THE BENEFIT
OF THE MORTGAGED PROPERTY. Upon Court Approval, APIC, PMCo, KDC, and the
ERS (or the ERS' Designee that shall acquire title to the affected portion
of the property to be transferred to it pursuant to this Agreement), as
applicable, shall execute, or obtain the execution of, the Grants of
Easements, Declarations and Grants of Easements, and other documents
identified in Exhibit "B" attached hereto, in the forms attached hereto as
Exhibits X-x through B-18, which shall, as provided therein, declare and/or
convey, consent to, and/or subordinate security interests to, certain
easement and other rights in favor of or for the benefit of the Golf
Courses, the Resort Maintenance Lot and/or the Luigi's Parcel, as covered
by the Mortgage or otherwise agreed by the parties in connection with this
Agreement. The Grants of Easements, Declarations and Grants of Easements,
and other documents identified in Exhibits "B" and "X-x" through "B-18"
(collectively the "Exhibit 'B' Documents") shall be deposited, immediately
following execution, with the Escrow Company pursuant to the Escrow
Instructions and, in accordance with the Escrow Instructions, shall be
recorded and shall be delivered upon the Closing of the transactions as
provided in this Agreement.
3. CONVEYANCE OF MORTGAGED PROPERTY TO ERS' DESIGNEES. Upon Court
Approval and entry of the State Court Final Judgment in the State
Foreclosure Action as provided in paragraph 15 below, the State
Court-appointed Commissioner shall assign, transfer, and convey to one or
more entities designated by the ERS (collectively the "ERS' Designee"), all
of APIC's (and PMCo' s, if any) right, title, and interest in and to all of
the property and property rights described in the Mortgage, as amended, and
the other Loan Documents (collectively the "Kaanapali Property"), by
executing the Commissioner's Deeds, Commissioner's Xxxx of Sale,
Commissioner's Assignment of Contract Rights, Permits and Licenses, and
Commissioner's Assignments of Leases, identified in Exhibit "C," in the
forms attached hereto as Exhibit "C-l" through "C-8" (collectively the
"Exhibit 'C' Documents"). The Exhibit "C" Documents shall be deposited,
immediately following execution, with the Escrow Company pursuant to the
Escrow Instructions and, in accordance with the Escrow Instructions, shall
be delivered and shall be recorded upon the Closing of the transactions as
provided in this Agreement. All Exhibit "C" Documents shall be accompanied
by all necessary consents and other documents necessary to vest title to
the Kaanapali Property in the ERS' Designee as the grantee thereof, free of
any lien, encumbrance, or exception other than those specifically
identified and set forth in the Exhibit "C" Documents.
4. GRANT DEEDS TO CONSOLIDATED LANDS. Upon Court Approval, APIC
shall, in partial satisfaction of the APIC Guaranty (hereinafter defined),
execute Grant Deeds (the "Grant Deeds"), in the forms attached hereto as
Exhibit "D-l" and "D-2," which shall convey to the ERS' Designee all of
APIC's right, title, and interest in and to Lot 10-D-l and the Resort
Maintenance Lot, respectively (collectively the "Grant Deed Property"),
including the portions of each such parcel not initially encumbered by the
Mortgage or covered by the Loan Agreement. The Grant Deeds shall be
deposited, immediately following execution, with the Escrow Company
pursuant to the Escrow Instructions and, in accordance with the Escrow
Instructions, shall be delivered and shall be recorded upon the Closing of
the transactions as provided in this Agreement. The Grant Deeds shall be
accompanied by all necessary consents, releases, and other documents
necessary to vest title to the Grant Deed Property in the ERS' Designee as
the grantee thereof.
5. LIMITATION RESPECTING AMFAC PARTIES' LIABILITIES.
a. Notwithstanding the assignment and conveyance of the
Kaanapali Property to the ERS' Designee, as provided in paragraph 3 above,
or the conveyance of the Grant Deed Property to ERS' Designee, as provided
in paragraph 4 above, and notwithstanding any other provision of this
Agreement, no provision of this Agreement or any transaction provided for
in this Agreement shall constitute or be deemed to constitute an assumption
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by the ERS or the ERS' Designee of any liability with respect to any
assigned contract, any prior business or other operations (including, but
not limited to, the ownership and operation of the Kaanapali Property and
the Grant Deed Property) of the Amfac Parties (or any of them), KDC,
Kaanapali Land, LLC, the State Court Receiver (including Receivership
Kaanapali Golf Course, LLC), or any direct or indirect affiliate of any of
them (singly and collectively the "Prior Parties"), or any other
obligations of the Prior Parties (or any of them); provided, however, that
the foregoing shall not be deemed or construed to alter or diminish the
ERS' specific agreements respecting certain receivership matters (including
the assumption, from and after the date of the Closing, of certain
identified leases and contracts) as set forth in paragraph 12 below.
Without limiting the generality of the foregoing, neither the ERS nor the
ERS' Designee shall be responsible for, or be deemed to have assumed, any
liability or obligations to any current or former employees or contractors
(except to the extent specifically provided in paragraph 12 below) of the
Prior Parties, or any other person or entity, whether for compensation,
incentive payments, bonuses, retirement, annuities, severance payments,
deferred compensation, profit sharing benefits, worker's compensation, any
collective bargaining agreement or any obligations with respect to any
collective bargaining agreement, or any obligations to any of the employees
of the Prior Parties under the Employees' Retirement Income Security Act of
1974 as amended ("ERISA") or the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA"), or for any compensation, loss, damage,
reimbursement, or other right or entitlement claimed by any person or
entity. Neither the ERS, nor the ERS' Designee, shall have any
responsibility whatsoever for the continuation of, or any liability under
or connection with, any employee benefit plan or any employment contract,
collective bargaining agreement, or severance arrangement to which any of
the Prior Parties is a party, and neither the ERS nor the ERS' Designee
shall be, or be deemed to be, the successor employer or successor entity to
the Prior Parties, or any of them, with respect to any employee benefit
plan, any collective bargaining agreement, any other plan, contract, or
arrangement, or otherwise. No employee benefit plan adopted or maintained
by the ERS or the ERS' Designee after the Closing of the transactions
provided for in this Agreement is or shall be deemed to be a "successor
plan," as that term is defined in ERISA, of any employee benefit plan of
the Prior Parties, or any of them. Neither the ERS nor the ERS' Designee
shall be obligated to assume or continue, or shall be deemed to have
assumed or continued, any term or condition of employment currently or
previously promised or maintained by the Prior Parties, or any of them,
with regard to current, former, or retired employees or contractors, and
the ERS and the ERS ' Designee shall not be responsible for any debt,
payment, obligation, claim, liability, or agreement which relates to or
arises from the Prior Parties' employment (or termination of employment)
of, or contract (or termination of contract) with, any current, former, or
retired employees, regardless of whether such employees accept employment
offered by the ERS or the ERS' Designee. Unless otherwise specifically
agreed by the ERS and the ERS' Designee, neither the ERS nor the ERS'
Designee shall be obligated to assume, or shall be deemed to have assumed,
any contractual obligation of the Prior Parties.
b. Upon Court Approval, the Amfac Parties and KDC shall
cause Kaanapali Land, LLC ("Kaanapali Land" or the "Funding Entity"), to
execute an Indemnification Agreement (the "Indemnification Agreement"), in
the form attached hereto as Exhibit "E". The Indemnification Agreement and
the information contained therein shall be confidential and not
disseminated to any third parties with the exception that (i) the
Indemnification Agreement shall be filed under seal with the Bankruptcy
Court or State Court (provided that each said Court may authorize
disclosure if and to the extent necessary for the Court to approve this
Agreement), and (ii) the Indemnification Agreement shall be filed under
seal with any court of appropriate jurisdiction in any action to enforce
the Indemnification Agreement (provided that the court may thereafter
authorize disclosure as necessary in the enforcement action). The
Indemnification Agreement shall be deposited, immediately following
execution, with the Escrow Company pursuant to the Escrow Instructions and,
in accordance with the Escrow Instructions, shall be delivered and shall be
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effective upon the Closing of the transactions as provided in this
Agreement.
c. Upon Court Approval, Kaanapali Land shall execute that
certain Release (the "COLA Indenture Release"), in the form attached as
Exhibit "1" to Exhibit "E," and cause the COLA Indenture Release, fully
executed and bearing the original signatures of Bank One Trust Company,
N.A. (the "Indenture Trustee") and Kaanapali Land, to be deposited with the
Escrow Company pursuant to the Escrow Instructions. In accordance with the
Escrow Instructions, the COLA Indenture Release shall be delivered to the
ERS at, and shall be effective upon, the Closing of the transactions as
provided in this Agreement.
d. Upon or prior to Court Approval, APIC shall execute and
obtain the execution by International Xxxxxxxxx & Warehouse Union 142 (the
"Union") of that certain Mutual Release Agreement (the "Union Release") in
the form attached as Exhibit "2" to Exhibit "E." Upon Court Approval, the
Union Release shall be deposited with the Escrow Company pursuant to the
Escrow Instructions and, in accordance with the Escrow Instructions, a
duplicate original of the Union Release shall be delivered to the ERS upon
the Closing of the transactions as provided in this Agreement. As soon as
practical and with reasonable promptness following the Closing, APIC shall
make settlement payments to the "Union Employees" (as defined in the Union
Release) in settlement of all claims of the Union Employees as provided in
the Union Release (either in the form of monetary payments and/or elected
pension plan benefits) and, in connection therewith, the Amfac Parties
shall obtain duplicate signed Releases (in the form and content of Exhibit
"1" to the Union Release) from each Union Employee who elects to receive
pension plan benefits in settlement of claims as set forth in the Union
Release (including Exhibit "1" thereto), and shall use reasonable efforts
to obtain such duplicate signed Releases from each other Union Employee.
Following the distribution to Union Employees, the Amfac Parties shall
deliver a duplicate original of each said signed Release (or, if a
duplicate original is not available, a photocopy of the signed original) to
the ERS. If the Amfac Parties are unable to obtain a signed Release from
any Union Employee, with respect to whom the Amfac Parties are required to
use "reasonable efforts" as aforesaid, but decide to make distribution to
that Union Employee in satisfaction of his claims notwithstanding the
absence of a signed Release, the Amfac Parties shall deliver to the ERS a
photocopy of the face and reverse side of the negotiated distribution
check(s) evidencing the payment(s).
6. GOLF COURSE IMPROVEMENTS. Upon Court Approval, APIC and the ERS
(or the ERS' Designee that shall acquire title to the affected portion of
the property to be transferred to it pursuant to this Agreement) shall
execute an agreement (the "Golf Course Improvements Agreement"), in the
form attached hereto as Exhibit "F," relating to a reconfiguration of the
0xx Xxxx (xxxxxxxx xx xxx Xxxxxxx Xxxx Xxxxxxxxx Xxxx) of the South Course
of the Royal Kaanapali Golf Courses, such reconfiguration being related to,
and required in connection with, the construction of roadway and related
improvements for the Kualapa Loop Extension Area as provided in the Access
Roads Agreement (hereinafter defined). The Golf Course Improvements
Agreement shall be deposited, immediately following execution, with the
Escrow Company pursuant to the Escrow Instructions and, in accordance with
the Escrow Instructions, shall be delivered upon the Closing of the
transactions as provided in this Agreement. The "Construction Escrow
Deposit" (as defined in the Golf Course Improvements Agreement) shall be
deposited with the Escrow Company following Court Approval of this
Agreement, but prior to the hearing on the motion requesting that the State
Court enter the "Order Confirming Sale" (as hereinafter defined), and, upon
the closing of the transactions as provided in this Agreement, the
Construction Escrow Deposit shall be held and disbursed by the Escrow
Company in accordance with the Golf Course Improvements Agreement and the
escrow instructions attached thereto.
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7. ACCESS ROADS AGREEMENT. Upon Court Approval, APIC, PMCo, KDC,
and the ERS (or the ERS' Designee(s) that shall acquire title to the
affected portion of the property to be transferred to it pursuant to this
Agreement) shall execute an agreement (the "Access Roads Agreement"), in
the form attached hereto as Exhibit "G", which shall recite the parties'
agreements relating to, inter alia, (i) the consolidations,
re-subdivisions, and conveyances relating to the "Access Roadway Area" and
the "Remnant Parcels," as provided in the Memorandum Agreement, (ii) the
reconfiguration of portions of the Cane Haul Road for access between
Kualapa Place and the property commonly referred to as "Parcel 22/23" (the
"Parcel 00/00 Xxxxxx Xxxx"), (xxx) the construction of roadway and utility
improvements within the Kualapa Loop Extension Area and the Parcel 00/00
Xxxxxx Xxxx, (xx) the consolidation of various properties, including
certain lands encumbered by the Mortgage, and resubdivision thereof to
create separate parcels of land comprising the Kualapa Loop Extension Area
and the Parcel 00/00 Xxxxxx Xxxx, (x) the conveyances of the Kualapa Loop
Extension Area and the Parcel 00/00 Xxxxxx Xxxx xx Xxxxxxxxx Xxxx Xxxxxxx
Community Association, and (vi) the conveyance, to the ERS' Designee, of
such portion of the Cane Haul Road that is to be abandoned or unused as the
result of such reconfiguration of the Cane Haul Road. The Access Roads
Agreement shall be deposited, immediately following execution, with the
Escrow Company pursuant to the Escrow Instructions and, in accordance with
the Escrow Instructions, shall be delivered and shall be recorded upon the
Closing of the transactions as provided in this Agreement.
8. PAYMENT TO THE ERS. Upon Court Approval of this Agreement, the
Funding Entity shall immediately deposit with the Escrow Company the sum of
$250,000, which funds shall be paid to the ERS, on behalf of APIC, in
partial satisfaction of the APIC Guaranty (hereinafter defined), upon the
Closing of the transactions as provided in this Agreement in accordance
with the Escrow Instructions.
9. PAYMENT OF EXPENSES. In addition to the sum provided in
paragraph 8 above, the Funding Entity shall, upon Court Approval of this
Agreement, deposit with the Escrow Company sufficient funds to pay the
Amfac Parties' notary fee, all of the recording fees, and one-half of the
conveyance fees or taxes required to carry out the various transfers and
conveyances as provided in this Agreement. The ERS shall deposit with the
Escrow Company sufficient funds to pay the ERS' notary fees and one-half of
the conveyance fees or taxes required to carry out the various transfers
and conveyances as provided in this Agreement. The ERS shall also be
responsible for all costs, expenses and undertakings relating to any policy
or policies of title insurance, including any update(s) to any existing
policy or policies of title insurance, and any endorsements or extended
coverage(s) relating thereto, and all costs and charges in connection with
any survey (s) requested by the ERS, the ERS' Designee, or the title
company, in connection with the transactions as provided in this Agreement.
10. APIC GUARANTY. Immediately upon execution of this Agreement by
all parties hereto, APIC shall execute and deliver to the ERS, and the ERS
shall accept, APIC's guarantee of all principal due and owing under the
Loan Agreement, in the form attached hereto as Exhibit "H" (the "APIC
Guaranty"). The APIC Guaranty shall expire and terminate, and shall be
deemed released by the ERS, upon the Closing. The APIC Guaranty shall not
entitle the ERS or any other party, including APIC, to assert, or cause to
be asserted, any claim (under a theory of fraudulent conveyance or
otherwise) against any former assets of APIC that may have been transferred
by APIC prior to the execution of this Agreement.
8
11. DISMISSAL OF COUNTERCLAIM. In connection with Court Approval of
this Agreement, the Amfac Parties, in partial satisfaction of the APIC
Guaranty, and the ERS shall execute and file a Stipulation for Dismissal
with Prejudice of Counterclaim (the "Counterclaim Dismissal Stipulation"),
in the form attached hereto as Exhibit "I" and the Amfac Parties shall
obtain the entry of the Order and Judgment Dismissing with Prejudice the
Counterclaim of the Amfac Parties (the "Counterclaim Dismissal Order"), in
the form attached hereto as Exhibit "J." (If this Agreement shall become
null and void as provided in paragraph 15 of this Agreement, or if the
Closing does not occur as provided in paragraph 13 within sixty (60) days
after this Agreement has become effective as provided in paragraph 16
(provided that the failure of the Closing to occur shall not be due to the
action or inaction of any of the Amfac Parties or any of the ERS Released
Parties (hereinafter defined)), then, in either such event, the
Counterclaim Dismissal Stipulation shall be withdrawn and cancelled, the
Counterclaim Dismissal Order shall be automatically set aside, the
counterclaim and all of the ERS' defenses, setoffs, and rights of
recoupment related thereto shall be automatically reinstated, and the
releases set forth in paragraph 14 shall be deemed set aside and of no
further effect.) The Counterclaim Dismissal Order shall be a condition
precedent to the recordation and delivery of the Exhibit "A" Documents,
Exhibit "B" Documents, the Exhibit "C" Documents, and the Grant Deeds and
to the Closing.
12. RECEIVERSHIP MATTERS.
a. Prior to the Closing, the Funding Entity shall deposit
with the Escrow Company the sum of $446,710.67 and the Receiver shall
deposit with the Escrow Company the sum of $37,148.36 (collectively the
"Creditor Fund") to pay in full the pre-Receivership creditor claims (which
total $483,859.03) as listed on Exhibit "K" attached hereto and
incorporated by reference. The approval of this Agreement by the State
Court shall constitute the State Court's authorization and instructions to
the Receiver to make the foregoing deposit. In addition, the Funding Entity
shall deposit with the Escrow Company sufficient funds to pay the lease
termination fees (in the approximate amount of $69,000.00) owed by APIC to
equipment lessors on account of APIC's prior termination of equipment
leases (the "Terminated Leases") (or shall deliver proof that such payments
have been made). Upon the Closing, and in accordance with the Escrow
Instructions, the Escrow Company shall (i) deliver a payment check from the
Creditor Fund to each creditor listed on Exhibit "K," and (ii) deliver a
payment check to each such equipment lessor under the Terminated Leases
entitled to a lease termination fee (as identified in the Escrow
Instructions or a separate writing delivered to the Escrow Company) or
deliver the evidence of the prior payment of said termination fees to the
ERS or the ERS' Designee. The payment checks (i) shall be in the amount
listed on Exhibit "K" (and, as appropriate, the amount owed to the
respective equipment lessors for termination fees), (ii) shall be
accompanied by a letter from APIC (substantially in the form of Exhibit
"K-l") to each such creditor applying the payment to the outstanding debt
owed, and (iii) shall contain a legend (substantially in the form of
Exhibit "K-2") providing that endorsement or negotiation of the check
constitutes acceptance as payment in full of all pre-receivership amounts
owed by APIC and a release of any and all claims for such amounts against
APIC, the Receiver, and the ERS (including any of its subsidiaries), or any
of them.
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b. Upon the Closing: (i) all funds ("NURC Funds") held in
First Hawaiian Bank account no. 07-064802, in the approximate amount of
$25,798, shall be released and distributed by the Receiver to Kaanapali
Operations Association, Inc.; and (ii) ninety percent (90%) of all rental
and other payments made by Railroads of Hawaii, Inc. (the "ROH Funds"), for
the period from and including April 2002 until closing (currently in the
approximate amount of $110,000, representing rent paid by Railroads of
Hawaii, Inc. for the period April 2002 through February 2003), which are
now deposited in the clients' trust account of Xxxx Xxxxxxx Park & Niles
but which are to be transferred to the clients' trust account of Gelber,
Gelber, Ingersoll & Xxxxxxxxx, shall be released to Kaanapali Land, and the
balance of the ROH Funds shall be paid to the Receiver. The Receiver shall
be entitled to use the balance of the ROH Funds and all other funds
remitted and turned over to the Receiver, as well as all funds otherwise
coming into his hands as Receiver (collectively "Receivership Funds"), for
the operation, maintenance, and improvement of the Golf Courses; provided,
however, that the Receiver's expenditure of funds shall in no way include
or lessen the undertakings of the Amfac Parties or the Funding Entity to
furnish funds and carry out the improvements provided for in paragraph 7,
to make the payment required in paragraph 9, or to make the payments
provided for in this paragraph 12. The Receivership Funds shall constitute
property and proceeds of property subject to the ERS' security interest.
c. Effective upon the Closing, all of the rights and
interests of APIC and the Receiver under the leases and contracts listed in
Exhibit "K-3," attached hereto and incorporated by reference, shall be
assigned and conveyed to the ERS' Designee pursuant to the Commissioner's
Assignment of Contract Rights, Permits, and Licenses and the Commissioner's
Assignment of Leases, as applicable, and, upon such assignments and
conveyances the ERS' Designee shall assume and pay all of the rents,
charges, and other liabilities accruing thereafter in respect of said
assigned rights and interests and the ERS' Designee shall be entitled to
the rents and other income, if any, accruing thereafter in respect of said
assigned rights and interests.
13. APPOINTMENT OF ESCROW COMPANY. The Amfac Parties and the ERS
agree that the Escrow Company shall be appointed as the escrow agent and
that, upon Court Approval, the Amfac Parties and the ERS shall give the
Escrow Company joint instructions (the "Escrow Instructions") in the form,
or substantially in the form, attached hereto as Exhibit "L." Among other
things, the Escrow Instructions shall provide that the recordation (in the
sequence therein provided), delivery, and distribution of the documents and
funds deposited with the Escrow Company, and required to be recorded,
delivered, and distributed to complete the transactions provided for in
this Agreement (the "Closing"), shall take place when, and only when, all
of the following shall have occurred:
a. The Bankruptcy Court and the State Court have approved
this Agreement, the State Court Final Judgment (as hereinafter defined) has
been entered, and this Agreement has become effective on the Effective Date
(as hereinafter defined);
b. All of the documents and funds required to be deposited
with the Escrow Company by the respective parties have been so deposited,
including, but not limited to, the Counterclaim Dismissal Order; and
c. Title Guaranty of Hawaii, Incorporated ("Title
Guaranty"), is in a position to and is prepared to issue to the ERS'
Designee one or more ALTA Owner's Policies of Title Insurance, together
with endorsements and binders, in accordance with the Title Commitment (as
defined in the Escrow Instructions), as the Title Commitment shall be
modified, as appropriate, to reflect any successor entity, by merger or
otherwise by operation of law, of and in place of either or both of Amfac
Hawaii, LLC, and Pioneer Mill Company, Limited. In this regard:
10
(i) The ERS agrees that the ERS and the ERS'
Designee(s) shall act with diligence and in good faith and
shall take all actions, if any, required or contemplated by the
Title Commitment to be taken by the ERS or the ERS' Designee(s)
or otherwise reasonably necessary and appropriate (and shall
request that the Receiver and any appointed Commissioner in the
State Foreclosure Action also take all actions, if any,
required or contemplated by the Title Commitment to be taken by
the Receiver or Commissioner or otherwise reasonably necessary
and appropriate) to facilitate and cause the timely issuance of
the title policies, endorsements, and binders in accordance
with the Title Commitment (provided, however, that, except as
required or contemplated by the Title Commitment or in this
Agreement, neither the ERS nor the ERS' Designee(s) shall be
required to release any material right, incur any material
obligation, or make any payment (other than the agreed upon
insurance policy premium(s) and other charges, if any, for the
endorsements and/or binders), to facilitate the issuance of
said title policies, endorsements, or binders), and neither the
ERS nor the ERS' Designee(s) shall take (or permit any
controlled person or entity to take) any actions to deter Title
Guaranty from timely issuing the title policies, endorsements,
and binders in accordance with the Title Commitment.
(ii) The Amfac Parties agree that they (and each of
them) shall take such actions, if any, expressly required in
the Title Commitment to be taken by the Amfac Parties (or any
of them) to facilitate and cause the timely issuance of the
title policies, endorsements, and binders in accordance with
the Title Commitment (provided, however, that, except as
required or contemplated in this Agreement, the Amfac Parties
shall not be required to release any material right, incur any
material obligation, or make any payment, to facilitate the
issuance of said title policies, endorsements, or binders), and
the Amfac Parties shall not take (or permit any controlled
person or entity to take) any actions to deter Title Guaranty
from timely issuing the title policies, endorsements, and
binders in accordance with the Title Commitment.
14. RELEASE OF CLAIMS.
a. Release by the Amfac Parties.
(i) Upon this Agreement becoming effective on the
Effective Date (as hereinafter defined), and subject to the
occurrence of the Closing as provided in paragraph 13 hereof,
the Amfac Parties, and each of them, for themselves and on
behalf of their respective officers, directors, employees,
affiliates, subsidiaries, attorneys, agents, advisors,
consultants, representatives, trustees (if any), and estates,
shall and do hereby, completely and forever release and
discharge the ERS Released Parties (as hereinafter defined)
from any and all claims, demands, debts, actions, causes of
action, damages, fines, charges, losses, liabilities,
judgments, awards, costs, and expenses (including, without
limitation, attorneys' fees), of any kind or nature whatsoever,
whether asserted or unassorted and whether known or unknown
(collectively "claims"), that the Amfac Parties, or any of
them, heretofore had, now have, or may hereafter have against
said ERS Released Parties, or any of them, arising out of any
act, omission, event, or circumstance occurring or existing
prior to the date and time of this Agreement, including,
without limitation, the following: (A) any and all claims in
any way related to the Loan, the Loan Agreement, or the Loan
Documents, (B) any and all claims in any way related to breach
of contract, breach of fiduciary or other duty, or any
negligent or wrongful conduct in connection with the Loan, the
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Loan Agreement, or the Loan Documents, (C) any other dealings,
transactions, relationships, or activities between, among, or
in any way involving the Amfac Parties, or any of them, on the
one hand, and the ERS, on the other hand, and (D) any claims or
causes of action asserted, or which could have been asserted,
by the Amfac Parties, or any of them, in the State Foreclosure
Action and the Counterclaim therein by the Amfac Parties
(collectively, the "Amfac Parties' Released Claims"); provided,
however, that this release shall not apply to, or be deemed or
construed to apply to, and Amfac Parties' Released Claims shall
not include, any claim by the Amfac Parties to enforce any or
all of their respective rights under this Agreement or under
any document executed in connection with this Agreement. For
purposes of this Agreement, the term "ERS Released Parties"
shall mean and include (A) the ERS and the ERS' Designee(s),
and their respective successors and assigns, (B) the officers,
trustees, administrators, employees, affiliates of every known
nature, subsidiaries, attorneys, agents, advisors, consultants,
and representatives of the ERS and/or the ERS' Designee(s), and
their respective successors and assigns, and (C) the respective
officers, trustees, administrators, employees, agents,
advisors, consultants, and representatives of any of the
persons and entities described in clause (B) immediately
preceding and their respective successors and assigns.
(ii) The Amfac Parties represent and warrant to the
ERS that (A) they are the owners and holders of all of the
Amfac Parties' Released Claims, (B) said Amfac Parties'
Released Claims have not been heretofore assigned, transferred,
or pledged to any person or entity, and (C) the Amfac Parties
shall release all of the Amfac Parties' Released Claims as
herein provided.
(iii) The Amfac Parties hereby expressly agree to
assume the risk of all unknown, unsuspected, and unanticipated
claims, as well as all known, suspected, and anticipated
claims, relating in any way to the Amfac Parties' Released
Claims. The Amfac Parties understand and acknowledge that, if
an Amfac Party shall suffer any additional damages or losses in
the future relating in any way to the Amfac Parties' Released
Claims, such Amfac Party cannot make any claim against the ERS
Released Parties. Each Amfac Party also expressly understands
and acknowledges that such Amfac Party is releasing unknown
claims that may be in existence and which, if known, might
materially affect such Amfac Party's decision to execute this
Agreement, regardless of whether the lack of knowledge is the
result of ignorance, oversight, error, negligence, or any other
cause. This Agreement is expressly conditioned on all of the
Amfac Parties' Released Claims being released. The Amfac
Parties specifically agree that this Agreement shall be a
complete bar to all of the Amfac Parties' Released Claims
against the ERS Released Parties which were or could have
been alleged, and that no payment or consideration, other than
as described herein, has been provided or will be made.
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b. Release by the ERS.
(i) Upon this Agreement becoming effective on the
Effective Date (as hereinafter defined), and subject to the
occurrence of the Closing as provided in paragraph 13 hereof,
the ERS, for itself and on behalf of the ERS' Designee(s), and
the ERS' and the ERS' Designee(s)' respective officers,
trustees, administrators, employees, affiliates, subsidiaries,
attorneys, agents, advisors, consultants, and representatives,
shall and does hereby completely and forever release and
discharge the Amfac Released Parties (as hereinafter defined)
from any and all claims, demands, debts, actions, causes of
action, damages, fines, charges, losses, liabilities,
judgments, awards, costs, and expenses (including, without
limitation, attorneys' fees), of any kind or nature whatsoever,
whether asserted or unassorted and whether known or unknown
(collectively "claims"), that the ERS or the ERS' Designee(s),
their respective successors and assigns, heretofore had, now
has, or may hereafter have against said Amfac Released Parties,
or any of them, arising out of any act, omission, event, or
circumstance occurring or existing prior to the date and time
of this Agreement, including any and all dealings and
transactions between the Amfac Parties, or any of them, and the
ERS (collectively the "ERS' Released Claims"); provided,
however, that this release shall not apply to, or be deemed or
construed to apply to, and the ERS' Released Claims shall not
include:
(A) any or all claims of indebtedness in any way
related to the Loan, the Loan Agreement, the Loan
Documents, or the indebtedness evidenced and secured by
the Loan Documents (provided, however, that, from and
after the Closing, the ERS shall collect such claims of
indebtedness only by enforcement of the Loan Documents
against the Kaanapali Property and the ERS shall not have
recourse for the collection of such indebtedness against
other assets of the Amfac Released Parties);
(B) claims, if any, against any of the Amfac
Released Parties, as the owner of real property ("Other
Property") other than the Kaanapali Property or the Grant
Deed Property, related to the use of the Kaanapali
Property and/or the Grant Deed Property, for roadway,
access, utility, or drainage purposes, by any of the
Amfac Released Parties (as the owner of Other Property)
for the benefit of Other Property; provided, however,
that the ERS and the ERS' Designee(s) shall have no
claims against, and the ERS' Released Claims shall
include claims against, APIC, AHI, PMCo, KDC, or
Kaanapali Land (or any successor entity of APIC, AHI,
PMCo, KDC, or Kaanapali Land by merger or otherwise by
operation of law) for (i) damage to, or the repair or
replacement of, that certain underground drainage pipe
located within Lot 10-B-1 of the Kaanapali Property,
between Lot 10-B-3 and Lot 10-L, relating to any use
thereof for drainage purposes prior to the Effective
Date, and (ii) any damage to the Kaanapali Property
and/or the Grant Deed Property, or the repair or
replacement of any improvements or facilities thereon,
relating to the use of the visible surface area of, or
visible above-ground improvements and facilities on, the
Kaanapali Property and/or the Grant Deed Property for
roadway access, utility, or drainage purposes prior to
the Effective Date; and
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(C) any claim by the ERS to enforce any or all of
the ERS' rights under this Agreement or under any
document executed in connection with this Agreement.
(Nothing contained in the foregoing provision shall be deemed to alter the
expiration, termination, and release of the APIC Guaranty as provided in
paragraph 10.) For purposes of this Agreement, the term "Amfac Released
Parties" shall mean and include (A) the Amfac Parties and their respective
successors and assigns, (B) the respective officers, directors, members,
shareholders, trustees, administrators, employees, affiliates of every
known nature, subsidiaries, attorneys, agents, advisors, consultants,
representatives of the Amfac Parties and their respective successors and
assigns, and (C) the respective officers, trustees, administrators,
employees, agents, advisors, consultants, and representatives of any of the
persons and entities described in clause (B) immediately preceding and
their respective successors and assigns.
(ii) The ERS represents and warrants to the Amfac
Parties that (A) the ERS is the owner and holder of all of the
ERS' Released Claims, (B) said ERS' Released Claims have not
been heretofore assigned, transferred, or pledged to any person
or entity, and (C) the ERS is releasing all of the ERS'
Released Claims as herein provided.
(iii) The ERS hereby expressly agrees to assume the risk
of all unknown, unsuspected, and unanticipated claims, as well
as all known, suspected, and anticipated claims relating in any
way to the ERS' Released Claims. The ERS understands and
acknowledges that, if the ERS shall suffer any additional
damages or losses in the future relating in any way to the ERS'
Released Claims, the ERS cannot make any claims against the
Amfac Released Parties. The ERS also expressly understands and
acknowledges that the ERS is releasing unknown claims that may
be in existence and which, if known, might materially affect
the ERS' decision to execute this Agreement, regardless of
whether the lack of knowledge is the result of ignorance,
oversight, error, negligence, or any other cause. This
Agreement is expressly conditioned on all of the ERS' Released
Claims being released. The ERS specifically agrees that this
Agreement shall be a complete bar to all of the ERS' Released
Claims against the Amfac Released Parties which were or could
have been alleged, and that no payment or consideration, other
than as described herein, has been provided or will be made.
The ERS shall withdraw with prejudice its proof of claim, if
any, filed in the bankruptcy proceedings of AHI, PMCo, or KDC
and shall have no claim against the bankruptcy estates of AHI,
PMCo, or KDC.
15. COURT APPROVAL.
a. This Agreement and the execution and consummation of this
Agreement by the Amfac Parties shall be subject to approval and
confirmation by the Bankruptcy Court and the State Court.
b. Within five (5) business days following the date this
Agreement has been executed by all of the parties hereto, AHI, PMCo, and
KDC shall file a joint motion and supporting documents with the Bankruptcy
Court seeking approval of this Agreement and approval and confirmation of
their prior execution of this Agreement. AHI, PMCo, and KDC shall serve the
motion and appropriate notice of the hearing on the Office of the United
States Trustee, all of the debtors in the jointly administered Bankruptcy
Proceedings, and all creditors and parties in interest as ordered by the
Bankruptcy Court and shall, inter alia, seek a finding from the Bankruptcy
Court, in the Bankruptcy Approval Order (as hereinafter defined), that the
motion was served upon and notice was duly given to said Office, debtors,
14
and creditors, that said notice was in compliance with the applicable
Federal Rules of Bankruptcy Procedure. At the same time as AHI, PMCo, and
KDC file the joint motion and supporting papers with the Bankruptcy Court
seeking Bankruptcy Court approval of this Agreement, AHI, PMCo, and KDC
shall move the Bankruptcy Court to modify the automatic stay imposed by
Section 362 of the Bankruptcy Code to permit the Amfac Parties and the ERS
to file (and shall seek a determination that the injunctive provisions of
any confirmed plan of reorganization in the Bankruptcy Proceedings do not
preclude the filing of) a joint motion and supporting papers in the State
Court requesting approval of this Agreement by the State Court, the State
Court's consideration of the joint motion for approval of this Agreement,
and the State Court's further proceedings as contemplated by this
Agreement. AHI and PMCo shall seek to obtain entry of the aforesaid
Bankruptcy Court order within ten (10) days of the filing the motion
therefor.
c. Within two (2) business days following receipt of the
Bankruptcy Court's order modifying the automatic stay and determining that
the injunctive provisions of any confirmed plan of reorganization in the
Bankruptcy Proceedings do not preclude the State Court from considering
approval of this Agreement, as provided above, the Amfac Parties and the
ERS shall file a joint motion with the State Court seeking approval of this
Agreement.
d. The consummation of the transactions provided for in this
Agreement is expressly subject to and conditioned upon the entry, after
proper notice and hearing by the Bankruptcy Court, of a final order (the
"Bankruptcy Approval Order"), substantially in the form and of the content
of Exhibit "M" attached hereto and incorporated herein by reference,
approving this Agreement and approving AHI's and PMCo's execution and
performance of this Agreement, including, without limitation, AHI's and
PMCo's full and complete release and discharge of the ERS Released Parties
from the Amfac Parties' Released Claims as provided in paragraph 14 hereof,
and approving KDC's execution of, joinder in, and performance of this
Agreement, as herein provided. If the Amfac Parties are unable to obtain
the Bankruptcy Approval Order within forty (40) days following the filing
of the motion, as provided in subparagraph b. above, seeking Bankruptcy
Court approval of this Agreement, then this Agreement shall become null and
void with no further obligations by either the ERS or the Amfac Parties;
provided, however, that (i) if the Bankruptcy Approval Order cannot be
obtained within said forty (40) days due to the Bankruptcy Court's
inability to schedule a hearing or render a decision through no fault of
the Amfac Parties, the time period shall automatically be extended to
permit the Bankruptcy Court to hear the motion and render a decision, and
(ii) the time period may be extended for one or more additional periods of
time by mutual agreement of the parties.
e. The consummation of the transactions provided for in this
Agreement is expressly subject to and conditioned upon the entry, after
proper notice and hearing by the State Court, of the following final orders
and judgments, in the form and of the content (unless otherwise approved by
the parties hereto) of the respective exhibits set forth below and
incorporated herein by this reference:
(i) A final order approving this Agreement (the "State
Court Approval Order") as set forth in the "Order Approving
Settlement Agreement" attached hereto as Exhibit "N," and a
final judgment approving this Agreement (the "State Court
Approval Judgment") as set forth in the "Final Judgment
Approving Settlement Agreement" attached hereto as Exhibit
"N-l."
(ii) The Counterclaim Dismissal Order as set forth in
Exhibit "J" attached hereto.
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(iii) A decree of foreclosure (the "Decree of
Foreclosure") as set forth in the "Findings of Fact,
Conclusions of Law, and Interlocutory Decree of Foreclosure
and Order Appointing Commissioner" attached hereto as
Exhibit "O."
(iv) A final judgment respecting the Decree of
Foreclosure (the "Foreclosure Judgment") as set forth in the
"Final Judgment Respecting Interlocutory Decree of Foreclosure"
attached hereto as Exhibit "P."
(v) An final order confirming the sale (pursuant to the
Decree of Foreclosure) as set forth in the "Order Confirming
Sale" attached hereto as Exhibit "Q."
(vi) A final judgment confirming said sale (the "State
Court Final Judgment") as set forth in the "Final Judgment
Confirming Sale" attached hereto as Exhibit "R."
If the Amfac Parties and the ERS are unable to obtain the State Court
Approval Order, the State Court Approval Judgment, the Counterclaim
Dismissal Order, the Decree of Foreclosure, and the Foreclosure Judgment
within forty (40) days following the filing of the joint motion seeking
State Court Approval of this Agreement, or to obtain the Order Confirming
Sale and the State Court Final Judgment within ninety (90) days of the
filing of the joint motion seeking State Court Approval of this Agreement,
then this Agreement shall become null and void with no further obligations
by either the ERS or the Amfac Parties, all funds and documents previously
deposited with the Escrow Company shall be returned to the party making the
deposit, and all parties shall be restored to their respective positions
prior to the execution of this Agreement; provided, however, that (i) if
any of said decrees, orders, or judgments cannot be obtained within said
designated periods due to the State Court's inability to schedule a hearing
or render a decision through no fault of the ERS or the Amfac Parties, the
time period shall automatically be extended to permit the State Court to
hear the motion and render a decision, and (ii) the time period may be
extended for one or more additional periods of time by mutual agreement of
the parties.
f. In connection with the foreclosure sale to be held
pursuant to the Decree of Foreclosure and the Foreclosure Judgment, the ERS
agrees that, in order to acquire the Kaanapali Property and to facilitate
the closing of this Agreement and the various transactions provided for or
contemplated herein, the ERS will (pursuant to the State Court's permitted
credit bid and offset procedures as set forth in the Decree of Foreclosure
and Foreclosure Judgment) credit bid at least $60,000,000.00 of its secured
first mortgage debt (as determined by the State Court). In addition, the
ERS agrees that, in order to acquire said property and facilitate said
closing, the ERS will, in the event of any additional bids or overbids in
connection with said foreclosure sale, credit bid (pursuant to the State
Court's permitted credit bid and offset procedures) up to (but shall not be
obligated to bid more than) the full amount of its first mortgage debt (as
determined by the State Court).
16. EFFECTIVE DATE.
a. This Agreement shall become effective and binding on the
earliest date (the "Effective Date") that each and all of the following
events shall have occurred:
(i) The Bankruptcy Court shall have entered the
Bankruptcy Approval Order as provided in paragraph 15.
16
(ii) The time to appeal from or to seek reargument or
rehearing of the Bankruptcy Approval Order has expired and no
such appeal or request for reargument or rehearing is pending,
or any right to appeal or to seek reargument or rehearing
has been waived in writing in a manner reasonably satisfactory
to the ERS and the Amfac Parties (or, if any appeal has
been taken, or any reargument or rehearing has been sought, the
Bankruptcy Approval Order has been affirmed by the highest
court to which the Bankruptcy Approval Order was appealed or
from which the reargument or rehearing was sought, and the time
to take a further appeal or to seek further reargument or
rehearing has expired or has been waived).
(iii) The State Court shall have entered the State Court
Approval Order, the State Court Approval Judgment, the
Counterclaim Dismissal Order, the Decree of Foreclosure, the
Foreclosure Judgment, the Order Confirming Sale, and the State
Court Final Judgment.
(iv) The time to appeal from or to seek reargument or
rehearing of the State Court Approval Order, the State Court
Approval Judgment, the Counterclaim Dismissal Order, the Decree
of Foreclosure, the Foreclosure Judgment, the Order Confirming
Sale, and the State Court Final Judgment has expired and no
such appeal or request for reargument or rehearing is pending,
or any right to appeal or to seek reargument or rehearing
has been waived in writing in a manner reasonably satisfactory
to the ERS and the Amfac Parties (or, if any appeal has been
taken, or any reargument or rehearing has been sought, such of
the State Court Approval Order, the State Court Approval
Judgment, the Counterclaim Dismissal Order, the Decree of
Foreclosure, the Foreclosure Judgment, the Order Confirming
Sale, and the State Court Final Judgment from which an appeal
has been taken, or with respect to which reargument or
rehearing has been sought, has been affirmed by the highest
court to which such Order or Judgment was appealed or from
which the reargument or rehearing was sought, and the time to
take a further appeal or to seek further reargument or
rehearing has expired or has been waived).
b. Notwithstanding anything in subparagraph a. above, if the
Bankruptcy Court has entered the Bankruptcy Approval Order and the State
Court has entered the State Court Approval Order, the State Court Approval
Judgment, the Counterclaim Dismissal Order, the Decree of Foreclosure, the
Foreclosure Judgment, the Order Confirming Sale, and the State Court Final
Judgment, and the Effective Date has not yet occurred, the ERS and the
Amfac Parties may, by mutual agreement in writing, waive the condition that
this Agreement shall become effective upon the Effective Date, in which
event this Agreement (including the releases herein contained) shall become
effective and binding on such date, prior to the Effective Date, as the
Amfac Parties and the ERS shall determine by agreement in writing.
17. ENCROACHMENTS AGREEMENT. APIC, PMCo, and the ERS acknowledge
that, in connection with (and upon Court Approval of) this Agreement, APIC,
PMCo, and the ERS shall execute and deliver an Agreement Respecting Various
Encroachments, in the form attached hereto as Exhibit "S" (the
"Encroachments Agreement"). In the event this Agreement shall become null
and void as provided herein, or if the Closing shall not occur in
accordance with this Agreement, then the Encroachments Agreement shall
become null and void and the parties thereto shall have no obligations
thereunder.
18. MISCELLANEOUS PROVISIONS.
a. INCORPORATION OF RECITALS. The recitals contained in the
preamble to this Agreement are hereby made a part of the terms and
provisions of this Agreement.
17
b. HEADINGS. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
c. INCORPORATION OF EXHIBITS. The Exhibits attached hereto
shall be construed with, and shall constitute integral parts of, this
Agreement to the same extent as if they had been set forth herein verbatim.
d. ASSIGNMENT. No assignment of this Agreement or of any of
the rights hereunder, and no delegation of any of the duties or obligations
hereunder, shall be valid without the specific written consent of all
parties hereto. Notwithstanding the foregoing, the Amfac Parties, or any of
them, may, in connection with and as a consequence of the AHI and PMCo
proceedings in the Bankruptcy Court, merge or consolidate with other
entities prior to closing and, in such event, the surviving entity of such
merger shall automatically succeed to all of the rights, duties, interests,
and obligations of the applicable merged or consolidated Amfac Party under
this Agreement. The parties agree that any and all documents to be
delivered pursuant to this Agreement shall be reformed to reflect the
proper parties to such documents as a result of any such merger or
consolidation.
e. ENTIRE AGREEMENT. This Agreement and the documents
executed in connection herewith supersede all previous discussions and
negotiations between or among the parties with respect to the subject
matter hereof, and constitute the entire agreement between and among the
parties as to the subject matter hereof. Each of the parties acknowledges
that no other party, nor any agent or attorney of any other party, has made
any promise, representation, or warranty whatsoever, express or implied,
not contained herein, concerning the subject matter hereof, to induce the
party to execute this Agreement, and each party acknowledges that it has
not executed this Agreement in reliance upon any such promise,
representation, or warranty not herein contained.
f. INDEPENDENT ADVICE, VOLUNTARY AGREEMENT. All of the
parties hereto acknowledge and agree that they have been represented by
independent counsel of their own choice throughout all negotiations which
preceded the execution of this Agreement, and that they have executed this
Agreement with the consent and upon the advice of said independent counsel.
Each party represents that it or the person signing as its corporate
officer or other representative has read this Agreement carefully, and
knows the contents of this Agreement, and that such party enters into this
Agreement freely and without coercion.
g. AMENDMENTS. This Agreement may be amended only by an
instrument in writing signed by all parties hereto (and, if said amendment
is prior to the Effective Date, approved by the Bankruptcy Court and State
Court). The amendment shall be effective as of the date stipulated therein.
h. BINDING EFFECT. This Agreement shall be valid and
legally binding upon, and is for the benefit of, the parties hereto and
their respective successors, transferees, permitted assigns, heirs,
estates, and personal representatives.
i. AUTHORITY. Each corporation or partnership which is a
party represents and warrants to the other parties that such party is duly
organized, validly existing, and in good standing in its state or territory
of incorporation (or formation) and, subject to Bankruptcy Court and State
Court approval, as applicable, that it has the requisite power and
authority to enter into this Agreement and perform its obligations
hereunder. Subject to Bankruptcy Court approval and State Court approval,
as applicable, any person executing this Agreement as an officer, director,
or representative of any entity represents and warrants to each of the
parties that he or she has been duly authorized to execute this Agreement
on behalf of such entity and that his or her signature is sufficient to
bind, and does bind, the entity hereto.
18
j. ATTORNEYS' FEES. Each party shall bear all of its
respective costs, expenses, and attorneys' fees incurred in connection with
the negotiation, documentation, and approval of this Agreement and shall
not have any right to seek reimbursement for any such costs, expenses, or
attorneys' fees from any other party. In the event that any party brings a
suit to enforce or interpret any provision of this Agreement or is required
to defend any action or proceeding brought by another party hereto, the
defense to which is based upon any provision of this Agreement, the
non-prevailing party agrees to pay the prevailing party the court costs and
attorneys' fees actually and reasonably incurred by the prevailing party.
k. CONSTRUCTION. All personal pronouns used in this
Agreement, whether used in the masculine, feminine, or neuter gender, shall
include all other genders; and the singular shall include the plural, and
vice versa. The use herein of the word "including," when following any
general statement, term, or matter, shall not be construed to limit such
statement, term, or matter to specific items or matters set forth
immediately following such word or to similar items or matters, whether or
not nonlimiting language (such as "without limitation," or "but not limited
to," or words of similar import) is used with reference thereto, but rather
shall be deemed to refer to all other items or matters that could
reasonably fall within the broadest possible scope of such general
statement, term, or matter.
l. INTERPRETATION. This Agreement was jointly prepared by
all of the parties hereto. Even if it should be determined that it was
prepared, in whole or in part, by any one party or said party's attorney,
this Agreement shall not, for such reason, be construed against any such
party, but shall be construed as if all parties jointly prepared it, and
any uncertainty, ambiguity, or incompleteness shall not be interpreted,
construed, or applied against any one party on the ground that the party or
the party's attorney prepared the Agreement. The language of all parts of
this Agreement shall in all cases be construed as a whole, according to its
fair meaning.
m. FURTHER ASSURANCES. Each party agrees to do all acts and
things, and to make, execute, and deliver such written instruments, as
shall from time to time be reasonably required to carry out the terms and
provisions of this Agreement. Each of the Amfac Parties agrees that, if any
of them, whether prior to or after the Effective Date, shall dispose of any
interest in real property, or rights respecting such real property, which
will be affected by one or more of the transactions contemplated by this
Agreement, such Amfac Party shall make such disposition subject to the
reservation and retention by the Amfac Party of all rights necessary to
carry out the transactions contemplated by this Agreement and the exhibits
hereto (except to the extent such disposition is to another of the Amfac
Parties, KDC or Kaanapali Land, or successor entity by merger or otherwise,
in which event such disposition shall be subject to this Agreement and the
transferee shall agree to perform as provided herein with respect to the
real property so transferred).
n. WAIVER OF JURY TRIAL. Each party to this Agreement
hereby knowingly, voluntarily, and intentionally waives the right to a jury
trial of any claim, demand, action, or cause of action in any way related
to the subject matter of or arising under this Agreement, whether such
action or cause of action is at law or in equity.
o. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Hawaii without
reference to principles of conflict of laws.
p. JURISDICTION FOR ENFORCEMENT. Following the Effective
Date, the State Court, in the State Foreclosure Action, shall have and
retain full jurisdiction over the parties to enforce this Agreement and the
automatic stay of Section 362 of the Bankruptcy Code, and any injunctive
provisions of any confirmed plan of reorganization in the Bankruptcy
Proceedings, shall be, and shall be deemed to be, terminated for said
purpose.
19
q. SURVIVAL OF TERMS. The terms and conditions of this
Agreement shall survive the execution and delivery of all the documents to
be executed and delivered in connection herewith and shall not be deemed to
have merged therein.
r. NOTICES. All notices, demands or documents which are
required or permitted to be given or served hereunder shall be in writing
and personally delivered or sent by registered or certified mail addressed
as follows:
TO: Amfac Property Investment Corp.
Amfac Hawaii, LLC
Pioneer Mill Company, Limited
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxxxxx
with a copy to: Amfac Hawaii, LLC
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
and to: Case, Xxxxxxx & Xxxxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
TO: Employees' Retirement System of
the State of Hawaii
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxxxxxx
Administrator
with a copy to: Xxxxxx Xxxxxx Xxxxxxxxx
& Xxxxxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: Xxx X. Xxxxxx, Esq.
and to: X'Xxxxxx & Xxxxxx LLC
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Notice shall be deemed to have been delivered only upon actual delivery of
the notice by hand delivery or, if the notice is mailed, upon actual
delivery of the notice as shown by the addressee's registry or
certification receipt or the expiration of the seventh day after the date
of mailing, whichever is earlier in time. The addresses and addressees for
purposes of this paragraph may be changed to any other address or addressee
by giving written notice of such change in the manner provided herein for
giving notices.
s. FACSIMILE SIGNATURES AND COUNTERPARTS. Facsimile
signatures of this Agreement shall be as fully effective as original
signatures. Without limiting the foregoing, each party signing this
Agreement by facsimile signature agrees to furnish a copy bearing an
original signature of the party to the other signatories, but the failure
to do so shall not affect the binding force and validity of any facsimile
signature. This Agreement may be executed in two or more counterparts and
each counterpart, when executed, shall be deemed an original, and all such
counterparts shall constitute one agreement binding on all of the parties
hereto. For all purposes, extra duplicate and unexecuted pages of the
counterparts may be discarded and the remaining pages assembled as one
document.
20
19. JOINDER OF FUNDING ENTITY. The Funding Entity hereby joins in
this Agreement for the limited purpose of acknowledging, confirming, and
agreeing that it has a financial interest in the consummation of this
Agreement by the Amfac Parties, that the Funding Entity will receive a good
and valuable consideration as the result of the ERS and the Amfac Parties
entering into this Agreement (and that it will receive a further benefit if
this Agreement is consummated), that it agrees to the terms and provisions
of paragraphs 5 and 14 as applicable to the Funding Entity, and that it
shall execute such documents, if any, as may require its execution pursuant
to paragraph 2, provide the Indemnification Agreement (and take the actions
provided therein) provided for in paragraph 5, and make the payments and
deposits provided for above in paragraphs 8 and 9.
20. JOINDER OF KDC. KDC hereby joins in this Agreement for the
limited purpose of acknowledging, confirming, and agreeing that it will
receive good and valuable consideration as a result of the ERS and the
Amfac Parties entering into this Agreement (and that it will receive a
further benefit if this Agreement is consummated), that it agrees to the
terms and provisions of paragraphs 5 and 14 as applicable to KDC, and that
it shall execute such documents as provided for above in paragraph 1, 2, 5,
7, and 15.
21
IN WITNESS WHEREOF, the Amfac Parties have executed this
Agreement as of the date first above written.
AMFAC PROPERTY INVESTMENT CORP.
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Its President "APIC"
AMFAC HAWAII, LLC.
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Its Senior Vice President "AHI"
PIONEER MILL COMPANY, LIMITED
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Its Senior Vice President "PMCo"
SETTLEMENT AGREEMENT by, and between, and among APIC, AHI, PMCo, and the
ERS
22
IN WITNESS WHEREOF, the ERS has executed this Agreement as of the
date first above written.
Approved as to form: THE EMPLOYEES' RETIREMENT SYSTEM
OF THE STATE OF HAWAII
By: [ Executed Signature ]
-----------------------
Special Deputy Attorney By: /s/ Xxxxxx Xxxxxxxx-Xxxxxxxx
General ------------------------------
Its Trustee
By: /s/ Xxxxx Xxxxxxxxxxx
------------------------------
Its Administrator "ERS"
SETTLEMENT AGREEMENT by, and between, and among APIC, AHI, PMCo, and the
ERS
23
IN WITNESS WHEREOF, KAANAPALI LAND, LLC, has joined in the execution
of this Agreement, as of the date first above written, for the purposes set
forth in paragraph 19 above.
KAANAPALI LAND, LLC
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Its Senior Vice President
"Funding Entity"
SETTLEMENT AGREEMENT by, and between, and among APIC, AHI, PMCo, and the
ERS
24
IN WITNESS WHEREOF, KDC has joined in the execution of this
Agreement, as of the date first above written, for the purposes set forth
in paragraph 20 above.
KAANAPALI DEVELOPMENT CORP.
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Its Senior Vice President
"KDC"
SETTLEMENT AGREEMENT by, and between, and among APIC, AHI, PMCo, and the
ERS
25
Amfac Property Investment Corp.
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On March 17, 2003, before me personally appeared XXXXXX X. XXXXXXX,
to me personally known, who, being by me duly sworn or affirmed, did say
that such person executed the foregoing instrument as the free act and deed
of such person, and if applicable, in the capacities shown, having been
duly authorized to execute such instrument in such capacities.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Type or print name: Xxxxxxx X. Xxxxxx
Notary Public, State of Hawaii
My commission expires: 1/4/05
26
Amfac Hawaii, LLC
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On March 17, 2003, before me personally appeared XXXXXX X. XXXXXXX,
to me personally known, who, being by me duly sworn or affirmed, did say
that such person executed the foregoing instrument as the free act and deed
of such person, and if applicable, in the capacities shown, having been
duly authorized to execute such instrument in such capacities.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Type or print name: Xxxxxxx X. Xxxxxx
Notary Public, State of Hawaii
My commission expires: 1/4/05
00
Xxxxxxx Xxxx Xxxxxxx, Xxxxxxx
XXXXX XX XXXXXX )
) SS.
CITY AND COUNTY OF HONOLULU )
On March 17, 2003, before me personally appeared XXXXXX X. XXXXXXX,
to me personally known, who, being by me duly sworn or affirmed, did say
that such person executed the foregoing instrument as the free act and deed
of such person, and if applicable, in the capacities shown, having been
duly authorized to execute such instrument in such capacities.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Type or print name: Xxxxxxx X. Xxxxxx
Notary Public, State of Hawaii
My commission expires: 1/4/05
00
XXX
XXXXX XX XXXXXX )
) SS.
CITY AND COUNTY OF HONOLULU )
On March 17, 2003, before me personally appeared XXXXXX
XXXXXXXX-XXXXXXXX to me personally known, who, being by me duly sworn or
affirmed, did say that such person executed the foregoing instrument as the
free act and deed of such person, and if applicable, in the capacities
shown, having been duly authorized to execute such instrument in such
capacities.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Type or print name: Xxxxxxx X. Xxxxxx
Notary Public, State of Hawaii
My commission expires: 1/4/05
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On March 17, 2003, before me personally appeared XXXXX XXXXXXXXXXX to
me personally known, who, being by me duly sworn or affirmed, did say that
such person executed the foregoing instrument as the free act and deed of
such person, and if applicable, in the capacities shown, having been duly
authorized to execute such instrument in such capacities.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Type or print name: Xxxxxxx X. Xxxxxx
Notary Public, State of Hawaii
My commission expires: 1/4/05
29
Kaanapali Land, LLC
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On March 17, 2003, before me personally appeared XXXXXX X. XXXXXXX,
to me personally known, who, being by me duly sworn or affirmed, did say
that such person executed the foregoing instrument as the free act and deed
of such person, and if applicable, in the capacities shown, having been
duly authorized to execute such instrument in such capacities.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Type or print name: Xxxxxxx X. Xxxxxx
Notary Public, State of Hawaii
My commission expires: 1/4/05
30
Kaanapali Development Corp.
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On March 17, 2003, before me personally appeared XXXXXX X. XXXXXXX,
to me personally known, who, being by me duly sworn or affirmed, did say
that such person executed the foregoing instrument as the free act and deed
of such person, and if applicable, in the capacities shown, having been
duly authorized to execute such instrument in such capacities.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Type or print name: Xxxxxxx X. Xxxxxx
Notary Public, State of Hawaii
My commission expires: 1/4/05
31
