EXHIBIT 10.2
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LOAN PURCHASE AGREEMENT
THIS LOAN PURCHASE AGREEMENT (this "Purchase Agreement") is
made as of ___________________, 2001, by BANK OF HAWAII, a Hawaii banking
corporation ("Seller"), AMFAC HAWAII, LLC , a Hawaii limited liability
company ("Purchaser"), WAIKELE GOLF CLUB, INC., a Hawaii corporation
("Borrower"), and AMFAC HAWAII, LLC., a Hawaii limited liability company
("Guarantor").
R E C I T A L S:
A. Seller and Borrower entered into that certain Amended and
Restated Term Loan Agreement dated February 4, 1997, as amended by that
certain First Amendment to Loan dated June 1, 1999, and as further amended
by that certain Second Amendment to Loan dated as of May 1, 2000 (as
amended, the "Loan Agreement"), pursuant to which Seller loaned Borrower
the principal sum of TWENTY-FIVE MILLION AND NO/100 DOLLARS
($25,000,000.00) (the "Loan") on terms and in accordance with conditions
set forth in said Loan Agreement. All capitalized terms not otherwise
defined in this Agreement shall have the same meaning as set forth in the
Loan Agreement.
B. The Loan is evidenced by that certain Amended and Restated Note
dated February 4, 1997, made, executed and delivered by Borrower to the
Seller (the "Promissory Note").
C. As security for all obligations owed under the Loan and
evidenced by the Promissory Note, Borrower made, executed and delivered to
Seller the following:
(i) Mortgage, Security Agreement and Financing Statement dated
September 28, 1993, recorded in the Bureau of Conveyances of the State of
Hawaii (the "Bureau") as Document No. 93-162322, and filed in the Office of
the Assistant Registrar of the Land Court of the State of Hawaii ("Land
Court") as Document No. 2072517 and noted on Transfer Certificates of Title
Nos. 418,785 and 428, 219 (the "Mortgage");
(ii) Assignment of Lessor's Interest dated September 28, 1993,
recorded in said Bureau as Document No. 93-162324 (the "Assignment");
(iii) Financing Statement recorded in said Bureau as Document No. 99-
063378 (the "UCC-1"); and
(iv) Guaranty dated September 28, 1993 (the "Guaranty") made,
executed and delivered by Amfac/JMB Hawaii, Inc., a Hawaii corporation
("Amfac/JMB"), pursuant to which Amfac/JMB agreed to guarantee all amounts
owing by Borrower under the Loan. Amfac/JMB merged with and into
Guarantor. Guarantor, as successor by merger to Amfac/JMB, assumed all of
Amfac/JMB's obligations under the Guaranty.
D. The Mortgage, the Assignment and the UCC-1 were amended by that
certain Amendment to Mortgage and other Loan Documents dated February 4,
1997, recorded in said Bureau as Document No. 97-018384, filed in said Land
Court as Document No. 2364828 and noted on Transfer Certificate of Title
Nos. 418,785 and 428, 219.
E. The Loan Agreement, the Note, the Mortgage, as amended, the
Assignment, as amended, the UCC-1, and the Guaranty shall sometimes
hereinafter be collectively referred to as the "Loan Documents."
F. Seller has now agreed to sell, transfer and assign all of its
right, title and interest in and to the Loan and the Loan Documents to
Purchaser, and Purchaser has agreed to purchase the Loan and the Loan
Documents from Seller.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the parties hereto agree as follows:
A. PURCHASE OF LOAN AND PAYMENT
1. PURCHASE OF THE LOAN AND THE LOAN DOCUMENTS. At Closing
(as defined below), Seller agrees to sell, transfer and assign all of its
right, title and interest in and to the Loan and the Loan Documents (which
term shall include, without limitation, for purposes of this Purchase
Agreement, all unpaid principal and accrued and unpaid interest under the
Note as of Closing, any other guaranty, agreement or instrument inuring to
the benefit of Seller as the holder of the Loan, all other right, title,
privileges, and appurtenances owned by Seller, if any, and in any way
related to, or used in connection with, the ownership of the Loan, and any
and all assignable lender title policies, utility, escrow, accumulator,
security, damage, lease rent, tax and insurance accounts or any other
deposits existing in connection with the Loan), WITHOUT RECOURSE, to
Purchaser, and Purchaser agrees to acquire all of Seller's right, title and
interest in and to the Loan and the Loan Documents, and shall assume as of
Closing all obligations of Seller in connection with the Loan and the Loan
Documents, subject to and in accordance with the terms of this Purchase
Agreement.
In lieu of Purchaser's acquisition of Seller's right, title and
interest in and to the Loan and the Loan Documents, Purchaser, at its
option, and upon reasonable notice to Seller prior to Closing, may elect to
close this transaction by way of payment of the amount of the Purchase
Price (defined below) and release of the Loan Documents, in which case the
closing procedures set forth herein would be modified accordingly.
2. PURCHASE PRICE. The total purchase price for the Loan
and the Loan Documents shall be the sum of_________________________THIRTEEN
MILLION AND NO/100 DOLLARS (US $13,000,000.00) (the "Purchase Price"),
which amount shall be payable at Closing as follows:
(a) Concurrently with the execution of this Agreement,
Purchaser shall immediately deliver the sum of ONE HUNDRED FIFTY THOUSAND
AND NO/100 DOLLARS ($150,000.00) (the "Initial Deposit") to Seller to be
applied against the Purchase Price at Closing.
(b) On or before December 1, 2001, Purchaser shall
deliver the sum of THREE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($350,000.00) (the "Supplemental Deposit") (together with the Initial
Deposit, the "Deposit") to Seller to be applied against the Purchase Price
at closing.
(c) At Closing, Purchaser shall pay the remaining
balance of the Purchase Price in cash or immediately available funds as
Seller may designate.
The Deposit shall either be applied to the Purchase Price at Closing, or,
if Closing has not occurred due to Purchaser's default (as set forth in
Section F.1 below), Seller shall be entitled to keep the entire Deposit as
liquidated damages and shall have such other remedies as are set forth in
Section F below.
3. PURCHASER'S ACKNOWLEDGMENT. Purchaser has made all such
independent investigations as Purchaser deemed necessary or appropriate
concerning the Loan and the Loan Documents. Purchaser is not relying in
any way upon any representations (except as set forth in Section G below
and as otherwise set forth in this Purchase Agreement), statements,
agreements, warranties, studies, reports, description or other information
or material furnished by Seller or its representatives, whether oral or
written, express or implied, of any nature whatsoever regarding the Loan
and the Loan Documents.
B. THE PURCHASE DOCUMENTS
The Loan and the Loan Documents shall be sold, transferred and
assigned by Seller's execution and delivery of the following documents to
Purchaser at Closing:
(1) Assignment of Seller's interest in the Loan Documents, a copy
of which is attached hereto as Exhibit "A", together with an Indorsement,
a copy of which is attached hereto as Exhibit "B", attached to and
indorsing over the original Note to Purchaser;
(2) A UCC Financing Statement (Assignment), a copy of which is
attached hereto as Exhibit "C"; and
(3) Such other documents and instruments, the forms of which shall
be reasonably acceptable to Seller and Purchaser, as shall be necessary or
appropriate to carry out the terms of this Purchase Agreement (the
foregoing are collectively referred to as the "Purchase Documents").
C. ESCROW
Escrow will be opened with the main office of Title Guaranty
Escrow Services, Inc. (Attention: Xxxx X. Xxxxxxx and Xxxxxxx
Paulo)("Escrow Agent"). Seller and Purchaser shall provide Escrow Agent
with such other information, documents and instruments as Escrow Agent may
reasonably require to enable Escrow Agent to close the transaction
contemplated by this Purchase Agreement.
D. CONDITIONS PRECEDENT TO CLOSING
1. Satisfaction of each of the following shall be a
condition precedent to Closing:
(a) The representations and warranties made by Seller
and Purchaser under this Purchase Agreement shall remain true and correct
as of Closing.
(b) Purchaser shall have deposited with Escrow Agent,
the Purchase Price (less the Deposit), together with other fees and costs
to be paid by Purchaser hereunder, and Purchaser shall have delivered,
performed, observed and complied with all of the items, instruments,
documents, covenants, agreements and conditions required by this Purchase
Agreement to be delivered, performed, observed and complied with by
Purchaser prior to or as of Closing.
(c) Seller shall have executed and delivered the
documents to Escrow Agent required under Section E.2.b below, together with
such fees and costs as are to be paid by Seller hereunder, and Seller shall
have delivered, performed, observed and complied with all of the items,
instruments, documents, covenants, agreements and conditions required by
this Purchase Agreement to be delivered, performed, observed and complied
with by Seller prior to or as of Closing.
E. CLOSING
1. CLOSING. The closing date or closing ("Closing") shall
occur on or before December 14, 2001.
2. DELIVERIES AT CLOSING.
a. BY PURCHASER. Purchaser shall deliver or cause to be
delivered to Escrow Agent not later than 12:00 noon (Hawaii time) on the
business day prior to Closing:
(1) the Purchase Price (less the Deposit), together with fees for
the recordation of all recordable documents, one-half (1/2) of all escrow
fees and, if required by Purchaser, the cost of a lender's title policy or
endorsement to Seller's Lender's title policy.
b. BY SELLER. Seller shall deliver or cause to be delivered
to Escrow Agent the following items not later than 12:00 noon (Hawaii time)
on the business day prior to Closing:
(1) the Promissory Note, indorsed by way of a separate indorsement
"Pay to the Order of [Purchaser] without recourse";
(2) an Assignment of Seller's interest in the Loan Agreement and
the Loan Documents;
(3) A UCC-2 Financing Statement (Assignment); and
(4) one-half (1/2) of the escrow fees.
3. COSTS. Except as may otherwise be expressly provided
herein, each party shall pay for its own fees and costs incurred in
connection with this transfer, including attorneys' fees and costs incurred
in the preparation and negotiation of this Purchase Agreement and the
Purchase Documents.
4. TERMINATION OF THIS PURCHASE AGREEMENT. If Closing does
not occur on or before December 14, 2001, or if the parties mutually agree
to terminate this Purchase Agreement, then unless the Closing has been
extended by mutual agreement of the parties, this Purchase Agreement shall
be deemed terminated, and the respective obligations of the parties
pursuant to this Purchase Agreement shall also be deemed terminated, except
that Seller shall be entitled to retain the Deposit as long as such
termination does not result from a mutual agreement or failure by Seller to
perform its obligations hereunder. Notwithstanding any provision hereof to
the contrary, any termination of this Purchase Agreement pursuant to this
section shall not release any party hereto from liability for any breach of
this Purchase Agreement occurring prior to the termination of this Purchase
Agreement.
F. DEFAULT AND REMEDIES
1. PURCHASER'S DEFAULT. If Purchaser fails or refuses to
consummate the purchase of the Loan and the Loan Documents pursuant to this
Purchase Agreement at Closing, or fails to perform any of Purchaser's other
obligations under this Purchase Agreement either prior to or at Closing for
any reason other than termination of this Purchase Agreement by Purchaser
pursuant to a right so to terminate expressly set forth in this Purchase
Agreement or Seller's failure to perform Seller's obligations under this
Purchase Agreement, then Seller shall have the right, as its sole and
exclusive remedy, to terminate this Purchase Agreement by giving written
notice of the termination to Purchaser prior to or at Closing, whereupon
neither party shall have any further rights or obligations under this
Purchase Agreement, and Seller shall be entitled to retain the Deposit as
liquidated damages free of any claims by Purchaser or any other person with
respect thereto, and exercise any other right or remedy Seller may have at
law or in equity by reason of the default, including, but not limited to,
the recovery of attorneys' fees incurred by Seller in connection therewith.
2. SELLER'S DEFAULT. If Seller fails or refuses to
consummate the sale of the Loan and the Loan Documents pursuant to this
Purchase Agreement at Closing or fails to perform any of Seller's other
obligations under this Purchase Agreement either prior to or at Closing for
any reason other than the termination of this Purchase Agreement either
prior to or at Closing for any reason other than the termination of this
Purchase Agreement by Seller pursuant to a right so to terminate expressly
set forth in this Purchase Agreement or Purchaser's failure to perform
Purchaser's obligation under this Purchase Agreement, then Purchaser shall
have the right to (i) enforce specific performance of Seller's obligations
under this Purchase Agreement, (ii) terminate this Purchase Agreement by
giving written notice of the termination to Seller prior to or at Closing,
whereupon neither party shall have any further rights or obligations under
this Purchase Agreement, and Seller shall deliver the Deposit to Purchaser,
free of any claims by Seller or any other person with respect thereto, or
(iii) exercise any other right or remedy Purchaser may have at law or in
equity by reason of the default, including but not limited to the recovery
of attorneys' fees incurred by Purchaser in connection therewith.
G. REPRESENTATIONS AND WARRANTIES
1. BY SELLER. Seller hereby represents and warrants to
Purchaser that:
(a) At Closing, Purchaser will acquire good title to
the Loan and its interest in the Loan Documents, free and clear of any and
all encumbrances.
(b) Seller has the right, power, legal capacity, and
authority to execute and deliver this Purchase Agreement, to sell the Loan
Documents and to consummate the transactions contemplated by this Purchase
Agreement. This Purchase Agreement has been duly and validly executed and
delivered by Seller, constitutes the valid legal and binding agreement of
Seller, and is enforceable against Seller in accordance with its terms. No
approval of any person or entity is required for the execution of this
Purchase Agreement by Seller or the consummation of any of the transactions
contemplated by this Purchase Agreement.
(c) To the knowledge of Seller, the execution, delivery
and performance of this Purchase Agreement and the endorsement and delivery
of the Loan and the Loan Documents do not and will not contravene or
violate any law, rule, regulation, order, writ, judgment, injunction,
decree, determination, or award presently in effect and applicable to
Seller, or result in a breach of, or constitute a default (with or without
the giving of notice or the lapse of time or both) under any indenture or
any loan, credit, or other agreement to which Seller is a party or by which
Seller may be bound or affected.
(d) Seller agrees that prior to Closing or until the
termination of this Purchase Agreement, Seller will not modify, cancel,
extend or otherwise change in any manner any of the terms, covenants, or
conditions of any of the Loan and the Loan Documents, nor enter into any
other agreements affecting the Loan and the Loan Documents without the
prior written consent of Purchaser, which consent shall not be unreasonably
withheld.
(e) The individual/individuals and entity/entities
executing this Purchase Agreement and any and all documents contemplated in
it on behalf of Seller has or have the legal power, right, and actual
authority to bind Seller to the terms and conditions in this Purchase
Agreement and in those documents.
(f) Seller agrees that if any of the representations
and warranties made by Seller pursuant to this Purchase Agreement shall be
determined to be false or incorrect, or if Seller shall fail to perform any
of the obligations, conditions or agreements set forth in this Purchase
Agreement, then Seller agrees to indemnify, defend and hold harmless
Purchaser from and against any and all damages, claims, losses, expenses,
obligations and liabilities (including, without limiting the generality of
the foregoing, liabilities for taxes and reasonable attorneys' fees
suffered, directly or indirectly by Purchaser).
EXCEPT AS SET FORTH ABOVE, SELLER MAKES NO REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH OR DIRECTLY RELATING TO
THE LOAN AND THE LOAN DOCUMENTS OR THE COLLATERAL RELATING THERETO.
2. BY PURCHASER. Purchaser hereby represents and warrants
for the benefit of Seller that:
(a) Purchaser has the right, legal capacity, and
authority to execute and deliver this Purchase Agreement and to consummate
the transactions contemplated by this Purchase Agreement. This Purchase
Agreement has been duly and validly executed and delivered by Purchaser,
constitutes the valid legal and binding agreement of Purchaser, and is
enforceable against Purchaser in accordance with its terms. No approval of
any person or entity is required for the execution of this Purchase
Agreement by Purchaser or the consummation of any of the transactions
contemplated by this Purchase Agreement.
(b) Purchaser has independently made its own analysis
of the Loan and the Loan Documents based on such documents and information
as it has deemed appropriate, and has independently decided to purchase the
Loan and the Loan Documents on the terms and conditions set forth in this
Purchase Agreement. Purchaser expressly acknowledges that Purchaser's
acquisition of all of Seller's right, title and interest in and to the Loan
and the Loan Documents hereunder is and shall be on an "AS IS", "WHERE IS"
and "WITH ALL FAULTS" basis.
(c) The Purchase Price and the terms and conditions of
the acquisition are the result of arms'-length bargaining between the
parties.
(d) Purchaser will purchase the Loan and the Loan
Documents WITHOUT RECOURSE TO SELLER for any default under the Loan and the
Loan Documents by (i) Borrower, (ii) any assignee or transferee of
Borrower, or (iii) any subsequent assignee or transferee of Borrower's
rights and obligations under the Loan and the Loan Documents.
(e) Closing of Purchaser's acquisition of the Loan and
the Loan Documents is not contingent on the occurrence of any other matter
or event including, without limitation, Purchaser obtaining any consent or
approval or Purchaser's obtaining or otherwise qualifying for financing.
(f) Purchaser agrees that if any of the representations
and warranties made by Purchaser pursuant to this Purchase Agreement shall
be determined to be false or incorrect, or if Purchaser shall fail to
perform any of the obligations, conditions or agreements set forth in this
Purchase Agreement, then Purchaser agrees to indemnify, defend and hold
harmless Seller from and against any and all damages, claims, losses,
expenses, obligations and liabilities (including, without limiting the
generality of the foregoing, liabilities for taxes and attorneys' fees
suffered, directly or indirectly by Seller).
3. BY BORROWER. Borrower hereby represents and warrants for
the benefit of Seller and Purchaser that:
(a) The Loan Documents are genuine, Borrower had full
authority and capacity to contract under the Loan Documents, and Borrower
is currently obligated under the Loan Documents.
(b) There is no contract, agreement, instrument,
document or written or oral understanding which amends or modifies or
rearranges any of the Loan Documents or which diminishes or impairs the
obligation of Borrower or any obligor to pay the indebtedness evidenced by
the Note or to perform fully the obligations of such Borrower or obligor in
strict accordance with the Loan Documents, or which voids the liens created
by the Mortgage, and the Assignment, or which would permit Borrower or any
obligor to void or avoid its obligations in whole or in part.
(c) Except as otherwise disclosed to the other parties
in writing, Borrower has not received any notices of any condemnation
actions, special assessments or increases in the assessed valuation of the
Property for taxes or other impositions of any nature which are pending or
being contemplated with respect to the Property or any portion hereof.
(d) Borrower has not received any notice of any
violation of any ordinance, regulation, law or statute of any governmental
agency pertaining to the Property or any portion thereof.
(e) To the best of Borrower's knowledge (i) all
existing utilities on the Property enter the Property through adjoining
public streets or private lands in accordance with valid public or private
easements that will inure to the benefit of Purchaser, upon a foreclosure
of the Property by Purchaser and Purchaser's successors and assigns, and
(ii) all of said utilities have been fully installed and are operating,
with all installation and connection charges paid in full.
(f) Borrower has not received any notice that any fee
or leasehold owner of the Property (the "Owner") failed to file or has
improperly filed any tax return or report required to be filed by the
Owner, or that the Owner has not paid all taxes, charges or assessments now
owing by the Owner (except current taxes and assessments now owing by the
Owner) (except current taxes and assessments not yet delinquent) which
would in any way now or hereafter constitute a lien against the Property or
any part thereof; and no action or proceeding is pending by a governmental
agency or authority for the assessment or collection of such taxes,
charges, or assessments against the Owner.
(g) Borrower accepts all terms and conditions of the
sale of the Loan Documents and of this Purchase Agreement, including, but
not limited to, Borrower's release of Seller.
(h) Borrower's execution of this Purchase Agreement has
been duly authorized, has been approved by all necessary actions of
Borrower and will not violate Borrower's organic documents or any
agreement, law or regulation to which Borrower is subject.
(i) Borrower agrees that if any of the representations
and warranties made by Borrower pursuant to this Purchase Agreement shall
be determined to be false or incorrect, or if Borrower shall fail to
perform any of the obligations, conditions or agreements set forth in this
Purchase Agreement, or if any obligation imposed on Borrower hereunder
shall become unenforceable, then Borrower agrees to jointly and severally
indemnify and hold harmless Lender and all of Lender's affiliates, parents,
subsidiaries, directors, officers and employees (together, the "Lender
Group") from and against any and all damages, claims, losses, expenses,
obligations and liabilities (including, without limiting the generality of
the foregoing, liabilities for taxes and attorneys' fees suffered, directly
or indirectly by Lender or Lender Group). Any payments made to Lender
and/or Lender Group by Borrower for indemnification purposes will be
sufficient to place Lender and Lender Group in the same position had the
breach not occurred. Therefore, such payments will be based on an after-
tax basis assuming that the payments are fully taxable and that Lender and
Lender Group are in the maximum marginal federal and state income tax
bracket.
4. BY GUARANTOR. Guarantor hereby represents and warrants
for the benefit of Seller and Purchaser that:
(a) The Loan Documents are genuine, Guarantor had full
authority and capacity to contract under the Loan Documents, and Guarantor
is currently obligated under the Loan Documents.
(b) There is no contract, agreement, instrument,
document or written or oral understanding which amends or modifies or
rearranges any of the Loan Documents or which diminishes or impairs the
obligation of Guarantor or any obligor to pay the indebtedness evidenced by
the Note or to perform fully the obligations of Guarantor or such obligor
in strict accordance with the Loan Documents, or which voids the liens
created by the Mortgage, and the Assignment, or which would permit
Guarantor or any obligor to void or avoid its obligations in whole or in
part.
(c) Guarantor accepts all terms and conditions of the
sale of the Loan Documents and of this Purchase Agreement, including, but
not limited to, Guarantor's release of Seller.
(d) Guarantor's execution of this Purchase Agreement
has been duly authorized, has been approved by all necessary actions of
Guarantor and will not violate Guarantor's organic documents or any
agreement, law or regulation to which Guarantor is subject.
(e) Guarantor agrees that if any of the representations
and warranties made by Guarantor pursuant to this Purchase Agreement shall
be determined to be false or incorrect, or if Guarantor shall fail to
perform any of the obligations, conditions or agreements set forth in this
Purchase Agreement, or if any obligation imposed on Guarantor hereunder
shall become unenforceable, then Guarantor agrees to jointly and severally
indemnify and hold harmless Lender and all of Lender's affiliates, parents,
subsidiaries, directors, officers and employees (together, the "Lender
Group") from and against any and all damages, claims, losses, expenses,
obligations and liabilities (including, without limiting the generality of
the foregoing, liabilities for taxes and attorneys' fees suffered, directly
or indirectly by Lender or Lender Group). Any payments made to Lender
and/or Lender Group by Guarantor for indemnification purposes will be
sufficient to place Lender and Lender Group in the same position had the
breach not occurred. Therefore, such payments will be based on an after-
tax basis assuming that the payments are fully taxable and that Lender and
Lender Group are in the maximum marginal federal and state income tax
bracket.
H. RELEASE OF SELLER
As further consideration for Seller's execution of this
Purchase Agreement, Borrower, Guarantor and Purchaser hereby agree that
from and after Closing, Borrower, Guarantor and Purchaser shall release,
remise and forever discharge Seller, and Seller's shareholders,
subsidiaries, affiliates, directors, officers, agents, employees,
representatives and attorneys, from any and all claims, demands, causes of
action, obligations, damages and liabilities previously arising out of,
existing at Closing, or arising thereafter in connection with the Loan and
the Loan Documents, unless (i) any of the terms, conditions, covenants,
agreements, obligations, representations and warranties made by Seller
shall be determined to be false or incorrect or unenforceable at Closing or
Seller shall have breached any of its covenants, agreements or obligations
under this Purchase Agreement and/or the Purchase Documents; or (ii) the
claim, demand, causes of action, obligations, damage and liability was
permitted or caused to be permitted by Seller.
I. RELEASE BY SELLER
Seller hereby agrees that from and after the Closing Date,
Seller shall release, remise and forever discharge Borrower, Guarantor and
Borrower's and Guarantor's respective shareholders, subsidiaries,
affiliates, directors, officers, agents, employees, representatives and
attorneys, from any and all claims, demands, causes of action, obligations,
damages and liabilities previously arising out of, existing at Closing, or
arising thereafter in connection with the Loan Documents; provided,
however, that such release (i) shall not apply to, or affect Purchaser's
exercise of, any rights conveyed by Seller to Purchaser under this Purchase
Agreement; and (ii) shall not apply to any breach of Borrower of its
covenants, agreements, representations and warranties under this Purchase
Agreement.
J. MISCELLANEOUS
1. SURVIVAL. Except as otherwise expressly set forth
herein, all warranties, representations, covenants, obligations and
agreements contained in this Purchase Agreement shall survive Closing
hereunder. All warranties and representations shall be effective
regardless of any investigation made or which could have been made.
2. FURTHER INSTRUMENTS. Whenever and as often as it shall
be requested to do so by any other party hereto, each party hereto shall
cause to be executed, acknowledged or delivered any and all such further
instruments and documents as may be reasonably necessary or proper, to
carry out the intent and purpose of this Purchase Agreement.
3. WAIVER OF TRIAL BY JURY. The parties hereby irrevocably
waive their respective rights to a jury trial of any claim or cause of
action based upon or arising out of this Purchase Agreement or the Loan and
the Loan Documents. This waiver shall apply to any subsequent amendments,
renewals, supplements or modifications to this Purchase Agreement. In the
event of litigation, this Purchase Agreement may be filed as a written
consent to a trial by the Court.
4. CUMULATIVE REMEDIES. No remedy conferred upon any party
in this Purchase Agreement is intended to be exclusive of any other remedy
herein or by law provided or permitted, but each shall be cumulative and
shall be in addition to every other remedy given hereunder or now or
hereafter existing at law, in equity or by statute (except as otherwise
expressly herein provided).
5. PROPRIETARY INFORMATION. Should this transaction fail to
close for any reason whatsoever, then Purchaser agrees and represents that
all documents and information which may be obtained from Seller are
proprietary and confidential information of Seller. Purchaser warrants
that it shall not (i) retain, or recreate from memory, any such documents
and information, or (ii) disseminate any such documents and information to
any third party. Should Purchaser breach any of its agreements or
representations contained in this section, then Seller, in addition to all
other remedies available, shall be entitled to obtain injunctive relief
prohibiting Purchaser from breaching any of such agreements or
representations.
6. NO WAIVER. No waiver by any party of any breach of this
Purchase Agreement or of any warranty or representation hereunder shall be
deemed a waiver of any other breach hereunder (whether preceding or
succeeding and whether or not of the same or similar nature), and no
acceptance of payment or performance by any party hereunder following a
default shall be deemed to be a waiver of any breach of this Purchase
Agreement or of any representation or warranty hereunder, whether or not
the party accepting such payment or performance knows of such breach at the
time it accepts such payment or performance. No failure or delay by any
party hereunder to exercise any right it may have by reason of any other
party's default hereunder shall operate as a waiver of default or
modification of the Loan and the Loan Documents or this Purchase Agreement
or shall prevent the exercise of any right by any other party hereunder.
7. NO THIRD PARTY BENEFICIARIES. Nothing in this Purchase
Agreement, expressed or implied, is intended to confer any rights or
remedies upon any person, other than the parties hereto, and subject to any
restrictions on assignment herein contained, the respective successors and
assigns of the parties hereto.
8. AMENDMENTS. This Purchase Agreement may be amended by
written agreement of amendment executed by all parties, but not otherwise.
9. ATTORNEYS' FEES. If any lawsuit is commended to enforce
any of the terms of this Purchase Agreement, the prevailing party will have
the right to recover its actual attorneys' fees and costs of suit from the
unsuccessful party to such lawsuit. This subparagraph shall survive
Closing or termination of this Purchase Agreement.
10. NO AGREEMENT ON VALUE. The parties hereto specifically
acknowledge and agree that the Purchase Price does not necessarily reflect
the parties' views regarding the value of the Loan and the Loan Documents
or the Project.
11. NOT A SECURITY. The parties hereto agree and acknowledge
that it is not their intent hereunder or in connection herewith to engage
in the purchase and sale of a security. Nevertheless, in the event that
any regulatory authority deems the sale of the Loan and the Loan Documents
to be a sale of a security, Purchaser hereby represents and warrants that
it is acquiring the Loan and the Loan Documents as an investment for its
own account and not with a view to or for the purpose of resale or
distribution thereof or any interest therein.
12. NO LIABILITY FOR TAX CONSEQUENCES. By signing below,
each party hereto agrees and acknowledges that no other party hereto shall
have any liability or responsibility of any kind to any other party hereto
for any foreign, U.S. federal, state or other tax consequences incurred by
such party or otherwise resulting from the transactions contemplated by
this Purchase Agreement.
13. BROKERAGE. Each party warrants and represents to the
other that it has not engaged the services of any broker, finder,
salesperson or other similar party in connection with this transaction and
agrees to indemnify, defend and hold harmless the other parties against any
claims for commissions, fees or other payments made to any person claiming
to have been employed by or to have provided services to the indemnifying
party.
14. ENTIRE AGREEMENT. This Purchase Agreement contains the
entire agreement between the parties respecting the matters herein set
forth and supersedes all prior agreements between the parties hereto
respecting such matters.
15. TIME OF THE ESSENCE. Time is of the essence of this
Purchase Agreement.
16. NOTICES. Any notice which a party is required or may
desire to give any other party hereunder shall be in writing and may be
sent by personal delivery, facsimile transmission or by mail (either (i) by
United States registered or certified mail, return receipt requested,
postage prepaid, or (ii) by Federal Express or similar generally recognized
overnight carrier regularly providing proof of delivery), addressed as
follows (subject to the right of a party to designate a different address
for itself by notice similarly given):
To Purchaser: Amfac Hawaii, LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxx
To Seller: Bank of Hawaii
21st Floor, Pacific Century Tower
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
FAX: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxxxx
To Borrower: Waikele Golf Club, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxxx
To Guarantor: Amfac Hawaii, LLC
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxx
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as the
case may be. Any notice given by personal delivery or by facsimiles
transmission shall be deemed given upon delivery of the same to the party
addressed.
17. CONFIDENTIALITY. Seller and Purchaser shall keep the
terms of this Purchase Agreement strictly confidential and shall not
disclose or permit their respective employees or agents to disclose the
terms of this Purchase Agreement (except for reasonably necessary
disclosures to each of their respective attorneys, accountants, agents,
lenders and representatives).
18. NO PARTY DEEMED DRAFTER. Each party has cooperated in
the drafting and preparation of this Purchase Agreement. Hence, in any
construction to be made of this Purchase Agreement, the same shall not be
construed against any party. Each term of this Purchase Agreement is
contractual and not merely a recital.
19. GOVERNING LAW. This Purchase Agreement shall be
construed and enforced in accordance with the laws of the State of Hawaii.
20. COUNTERPARTS; FACSIMILE SIGNATURE. This Purchase
Agreement may be executed in any number of counterparts so long as each
signatory hereto executes at least one such counterpart. Each such
counterpart shall constitute one original, but all such counterparts taken
together shall constitute one and the same instrument. This Purchase
Agreement shall be fully effective and binding notwithstanding the fact
that one or more parties may sign this Purchase Agreement by telefacsimile.
Any party who signs this Purchase Agreement by telefacsimile shall promptly
transmit to the other parties a signature page bearing such party's
original signature, but any party's failure to do so shall not affect the
enforceability and binding effect of this Purchase Agreement.
IN WITNESS WHEREOF, Purchaser and Seller have executed this
Purchase Agreement as of the date first above written.
SELLER:
BANK OF HAWAII, a Hawaii banking
corporation
By: _________________________________
Name:
Title:
PURCHASER:
AMFAC HAWAII, LLC, a Hawaii limited
liability company
By: _________________________________
Name:
Title:
BORROWER:
WAIKELE GOLF CLUB, INC., a Hawaii
corporation
By: _________________________________
Name:
Title:
GUARANTOR:
AMFAC HAWAII, LLC., a Hawaii
limited liability company
By: _________________________________
Name:
Title:
ACKNOWLEDGMENT AND CONSENT
The undersigned participants in the $25,000,000 loan made by
Bank of Hawaii to Waikele Golf Club, Inc., do hereby acknowledge and
consent to the attached Loan Purchase Agreement dated as of ____________,
2001, pursuant to which said loan is being sold to __________________.
DATED: ______________, 2001 CENTRAL PACIFIC BANK
_________________________________
Name:
Title:
DATED: ______________, 2001 CITY BANK
_________________________________
Name:
Title:
