EXHIBIT 4.16
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LAND COURT SYSTEM REGULAR SYSTEM
AFTER RECORDATION, RETURN BY: [ ] MAIL [ ] PICKUP
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This document contains ____ pages
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Maui Tax Map Key Nos. 4-4-014-002; 4-4-014-004; 4-4-014-005; 4-4-014-006;
and 4-4-014-008
ASSIGNMENT OF LOAN DOCUMENTS
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THIS ASSIGNMENT OF LOAN DOCUMENTS ("Assignment") is made as of
September 29, 2000, by TOBISHIMA PACIFIC, INC., a Hawaii corporation, whose
address is 201 E. Sandpointe, Suite 450, Santa Ana, California 92707
("Assignor"), and 900 INVESTMENT MANAGEMENT, L.P., a Delaware limited
partnership, whose address is 900 North Michigan Avenue, Chicago, Illinois
60611 ("Assignee").
RECITALS
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A. On September 30, 1998, Assignor made a loan to Amfac Property
Investment Corp., a Hawaii corporation (the "Borrower"), in the original
principal amount of $9,600,000.00 (the "Loan"), which Loan is evidenced
and/or secured by the Loan Documents (as defined below) and, as of the date
hereof, is presently outstanding in an aggregate principal balance of
$5,460,000 plus accrued but unpaid interest thereon; and
B. Assignor desires to assign, transfer and deliver the Loan
Documents to Assignee, and Assignee desires to acquire the Loan Documents.
NOW, THEREFORE, in consideration of the sum of Ten and No/100 Dollars
($10.00), the receipt of which is hereby acknowledged, and for other good
and valuable consideration, Assignor hereby assigns to Assignee, without
recourse, all of the right, title and interest of Assignor, as lender,
payee, mortgagee, secured party, holder or other applicable designation (as
the case may be), in, to and under the promissory notes, mortgages,
security instruments and other documents more particularly described in
Schedule 1 attached hereto and by this reference made a part hereof,
together with any and all other documents evidencing and/or securing the
Loan, and all liens, security interests and rights related thereto
(hereinafter collectively referred to as the "Loan Documents");
TO HAVE AND TO HOLD the same unto Assignee, its successors and
assigns, absolutely and forever;
TOGETHER WITH all sums payable under the Loan Documents, including,
without limitation, principal and interest, as they respectively become
due, and the right to enforce the Loan Documents.
1. Assignor represents to Assignee that (i) Assignor is the holder
of the Loan Documents, and (ii) there is no outstanding assignment or
pledge thereof or of the sums due or to become due thereunder.
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2. Assignee agrees to assume all obligations and indemnities of
Assignor pursuant to the Loan Documents, including without limitation, all
obligations of Assignor in connection with any indemnities of Assignor to
any third parties under any of the Loan Documents.
3. Assignor makes no representation and warranty to Assignee with
respect to, and shall not be responsible to Assignee for, the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or
oral statements or in any financial or other statements, instruments,
reports or certificates or any other documents furnished or made by or on
behalf of Borrower or any other Loan Party in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Borrower or any other Loan Party, nor
shall Assignor be required to ascertain or inquire as to (i) the
performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained in any of the Loan Documents, (ii) the
use of the proceeds of the Loan, or (iii) the existence or possible
existence of any Event of Default or Default.
4. Assignee represents and warrants that it has received from
Assignor such financial information regarding Borrower as Assignee has
requested, that Assignee has made its own independent investigation of the
financial condition and affairs of Borrower in connection with the
assignment evidenced by this Assignment, and that it has made its own
appraisal of the creditworthiness of Borrower. Assignor shall have no duty
or responsibility to make any such investigation or any such appraisal on
behalf of Assignee or to provide Assignee with any other credit or other
information with respect thereto, and Assignor shall not have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Assignee.
5. Each party to this Assignment represents and warrants to the
other party hereto that it has full power and authority to enter into this
Assignment and to perform its obligations hereunder in accordance with the
provisions hereof, that this Assignment has been duly authorized, executed
and delivered by such party.
6. Assignee hereby releases and forever discharges Assignor, its
agents, servants, directors, officers, employees, successors, assigns and
affiliates (all such persons being collectively referred to as the "Related
Persons"), of and from any and all causes of action, demands and remedies
of whatsoever kind and nature that Assignee has or may in the future have
against Assignor or any Related Persons in any manner on account of,
arising out of or related to the Loan assigned hereunder; provided,
however, that the foregoing release shall not apply to any causes of
action, demands and remedies that Assignee has or may in the future have
against Assignor or any Related Person arising out of Assignor's breach of
this Assignment.
7. Assignee hereby agrees to indemnify, hold harmless and defend
Assignor and all Related Persons (collectively the "Indemnified Parties"),
from and against any and all losses, causes of action, liabilities, claims,
demands, obligations, damages, costs and expenses (including reasonable
attorneys' and accountants' fees and costs incurred by the Indemnified
Parties in enforcing this indemnity obligation), to which any of the
Indemnified Parties may become subject on account of, arising out of, or
related to any act, omission, conduct or activity of Assignee or any of its
officers, directors, employees, agents, servants, shareholders, successors
or assigns, which act, omission, conduct or activity is on account of,
arises out of or is related to (i) Assignee's breach of this Assignment,
(ii) the Loan, and (iii) the use, ownership, control, operation or
condition of Collateral securing the Loan.
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8. Assignor and Assignee agree that (a) except as expressly
limited in this Assignment, the covenants of the parties herein contained
shall survive the closing of this Assignment, and shall be independently
enforceable, and (b) the representations and warranties of the parties
shall not survive the closing of this Assignment.
9. This Assignment shall be construed and interpreted in
accordance with the following definitions and rules of construction:
(a) SUCCESSORS: This Assignment shall be binding upon and shall
inure to the benefit of Assignor and Assignee and their respective
successors and assigns.
(b) COUNTERPARTS: This Assignment may be signed in counterparts.
All of said counterparts taken together shall constitute a single document.
(c) GOVERNING LAW: This Assignment shall be governed by and
interpreted in accordance with the laws of the State of Illinois.
EXCEPT AS SPECIFICALLY SET FORTH IN PARAGRAPHS 1 AND 6, THIS
ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE.
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IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the day and year first above written.
900 INVESTMENT MANAGEMENT, L.P.
a Delaware limited partnership
By: 900 INVESTMENT MANAGEMENT, INC.,
TOBISHIMA PACIFIC, INC., a Delaware corporation
a Hawaii corporation General Partner
By By
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Name: Name:
Title: Title:
Assignor Assignee
Acknowledged and Agreed to this
_______ day of ______________, 2000.
AMFAC PROPERTY INVESTMENT CORP.
By _______________________________
Name:
Title:
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STATE OF ______________________ )
) SS.
COUNTY OF ____________________ )
On this ______ day of _______________, 2000, before me personally
appeared __________________________________________________, to me
personally known, who, being by me duly sworn or affirmed, did say that
such person(s) executed the foregoing instrument as the free act and deed
of such person(s), and if applicable in the capacities shown, having been
duly authorized to execute such instrument in such capacities.
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Type or print name:
Notary Public, in and for said
State and County
My commission expires: ____________
5
STATE OF ______________________ )
) SS.
COUNTY OF ____________________ )
On this ______ day of _______________, 2000, before me personally
appeared __________________________________________________, to me
personally known, who, being by me duly sworn or affirmed, did say that
such person(s) executed the foregoing instrument as the free act and deed
of such person(s), and if applicable in the capacities shown, having been
duly authorized to execute such instrument in such capacities.
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Type or print name:
Notary Public, in and for said
State and County
My commission expires: ____________
6
STATE OF ______________________ )
) SS.
COUNTY OF ____________________ )
On this ______ day of _______________, 2000, before me personally
appeared __________________________________________________, to me
personally known, who, being by me duly sworn or affirmed, did say that
such person(s) executed the foregoing instrument as the free act and deed
of such person(s), and if applicable in the capacities shown, having been
duly authorized to execute such instrument in such capacities.
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Type or print name:
Notary Public, in and for said
State and County
My commission expires: ____________
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SCHEDULE 1
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LOAN DOCUMENTS
1. Purchase Money Promissory Note Secured by Mortgage dated
September 30, 1998, executed by Amfac Property Investment Corp. in favor of
Tobishima Pacific, Inc., in the principal amount of $9,600,000.00.
2. Purchase Money Mortgage, Security Agreement and Financing Statement
dated September 30, 1998, filed in the Office of the Assistant Registrar of
the Land Court of the State of Hawaii as Document No. 2488788, and noted on
Transfer Certificate of Title No. 518,307, executed by Amfac Property
Investment Corp. in favor of Tobishima Pacific, Inc., as affected by
Partial Release of Mortgages dated January 9, 1999 filed as Document No.
2513423, and noted on Transfer Certificate of Title No. 518,306, also
recorded as Document No. 99-005141.
3. UCC-1 Financing Statement recorded on May 19, 1999 as Document No.
99-079392, executed by Amfac Property Investment Corp. in favor of
Tobishima Pacific, Inc.
END OF SCHEDULE 1
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ENDORSEMENT TO SEPTEMBER 30, 1998 PURCHASE MONEY
PROMISSORY NOTE SECURED BY MORTGAGE
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Pay to the order of 900 Investment Management, L.P., a Delaware
limited partnership. Except as specifically set forth in that certain
Assignment of Loan Documents dated ________________, 2000, executed by
Tobishima Pacific, Inc., a Hawaii corporation, as Assignor, and 900
Investment Management, L.P., a Delaware limited partnership, as Assignee,
this assignment is made without recourse, representation or warranty of any
kind, whether express or implied, statutory or otherwise.
Date: ____________________, 2000
TOBISHIMA PACIFIC, INC.,
a Hawaii corporation
By
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Name:
Title: