SUPPLEMENTAL AGREEMENT
THIS SUPPLEMENTAL AGREEMENT (the "Agreement") entered into
as of the 15th day of February, 1996 (the "Effective Date"), by
and between MAUI HOTELS ("Xxxx-Xxxxxxx") a Georgia Limited
Partnership, KAPALUA INVESTMENT CORP. ("Kapalua"), a Hawaii
corporation, and NI HAWAII RESORT, INC. ("NI Hawaii"), a Hawaii
corporation;
WITNESSETH THAT:
WHEREAS, that certain Amended and Restated Partnership
Agreement of Kaptel Associates (the "Partnership"), a Hawaii
general partnership, was entered into on September 26, 1990, with
Xxxx-Xxxxxxx, Kapalua and NI Hawaii as the general partners;
WHEREAS, Kaptel is in default under that certain Promissory
Note in the amount of U.S.$186,250,000.00 dated September 26,
1990 (the "Loan"), by and between The Long-Term Credit Bank of
Japan, Ltd. (the "Lender");
WHEREAS, NI Hawaii, as newly appointed Managing Partner of
the Partnership, proceeded with negotiations with the Lender to
purchase or discharge the Loan for the benefit of the
Partnership;
NOW, THEREFORE, for mutual promises, obligations and good
and valuable consideration, the parties intending to be bound,
the parties hereby agree as follows:
1. In the event NI Hawaii consummates the purchase or
discharge of the Loan for the benefit of the Partnership, NI
Hawaii, Xxxx-Xxxxxxx and Kapalua shall consent, approve, and
confirm the purchase or discharge of the Loan negotiated by NI
Hawaii for the benefit of the Partnership.
2. Xxxx-Xxxxxxx and Kapalua confirm that they have no
intention of contributing toward any portion of the purchase or
discharge of the Loan.
3. On the closing date of the purchase or discharge of the
Loan, Xxxx-Xxxxxxx and Kapalua shall confirm the transfer of
their respective interest in the Partnership to NI Hawaii and
approval for NI Hawaii to liquidate and terminate the
Partnership, in a form attached hereto as Exhibit "A". For
purposes of this Agreement, the Closing Date shall be defined as
the date upon which NI Hawaii, or its affiliate, remits
sufficient funds to either purchase or discharge the Loan and the
Lender releases Kaptel.
4. Maui and Kapalua hereby waive any and all claims, if
any, against NI Hawaii arising from or connected with the
purchase or discharge of the Loan, except for losses, claims,
expenses, damages, liabilities, or obligations arising from or
connected with NI Hawaii's willful misconduct in negotiating the
purchase or discharge of the Loan for the benefit of the
Partnership.
5. This Agreement and the rights and obligations of the
respective parties hereunder shall be governed by and construed
in accordance with the laws of the State of Hawaii.
6. This Agreement may be executed and deemed effective upon
the execution by each of the parties hereto by facsimile with
original copies to follow. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all
which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized corporate
officers or their respective General Partners, each as of the day
and year first above written.
KAPALUA INVESTMENT CORP.
By /S/ XXX XXXXX
Name: XXX XXXXX
Office: PRESIDENT
"Kapalua"
MAUI HOTELS, a Georgia Limited Partnership
By THE XXXX-XXXXXXX HOTEL COMPANY, Its General Partner
By /S/ J. XXXXXXX XXXXXXXX
Name: J. XXXXXXX XXXXXXXX
Office: EXECUTIVE VICE PRESIDENT
"Maui"
NI HAWAII RESORT, INC.
By /S/ XXXX XXXXXXX
Name: XXXX XXXXXXX
Office: VICE PRESIDENT
"NI Hawaii"
EXHIBIT A
ACKNOWLEDGMENT AND CONFIRMATION
The undersigned parties acknowledge that they have
received written notice from NI Hawaii Resort, Inc., or its
affiliate, ("NI Hawaii") that it has closed on the purchase or
the discharge of that certain loan in the amount of
U.S.$186,250,000.00 dated September 26, 1990 (the "Loan"), by and
between The Long-Term Credit Bank of Japan, Ltd. (the "Lender")
and Kaptel Associates (the "Partnership"), a Hawaii general
partnership, and that the Lender has released Kaptel of any and
all liabilities and obligations under the Loan.
The undersigned parties hereby confirm that they do not
intend to contribute toward any portion of the purchase or
discharge of the Loan and hereby confirm the respective
conveyance of any and all interest they may have in the
Partnership to NI Hawaii and waive any and all rights to, or
claims of, any interest in the Partnership as of the date set
forth below. The undersigned parties further approve NI Hawaii
proceeding with winding up and liquidating the Partnership as of
the date set forth below.
IN WITNESS WHEREOF, the undersigned parties have
executed this Acknowledgment and Confirmation as of this _______
day of March, 1996.
MAUI HOTELS, a Georgia Limited Partnership
By THE XXXX-XXXXXXX HOTEL COMPANY, Its General Partner
By
Name:
Office:
KAPALUA INVESTMENT CORP.
By
Name:
Office:
