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EXHIBIT 10.44
FIRST AMENDMENT TO LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN DOCUMENTS is entered into as of June 6,
2000 between XXXXXXX-XXXXXX, INC., a Delaware corporation ("Borrower"),
XXXXXXX-XXXXXX INTERNATIONAL, a California corporation ("KWI"), XXXXXXX-XXXXXX
PROPERTIES LTD., a Delaware corporation ("KWPL"), K-W PROPERTIES, a California
corporation ("KWP"), and EAST-WEST BANK, a California banking corporation
("Lender").
RECITALS
A. Borrower and Lender are parties to the Credit Agreement dated as of
July 9, 1999 (the "Credit Agreement"). Obligations outstanding under the Credit
Agreement are evidenced by the Promissory Note dated July 9,1999 in the
principal amount of $24,000,000 made by Borrower and payable to the order of
Lender (the "Note"). Borrower's obligations under the Credit Agreement and the
Note are guaranteed pursuant to the Guaranty dated as of July 9, 1999 executed
by KWI, ("KWPL"), and KWP in favor of Lender (the "Guaranty"). Capitalized terms
used without definition in this Agreement have the same meanings given them in
the Credit Agreement.
B. Borrower, Lender and the Guarantors desire to enter into this
Agreement to modify some of the terms of the Credit Agreement and the other Loan
Documents.
AGREEMENT
1. Amendments.
(a) The amount of credit available under the Loan Documents is
reduced from $24,000,000 to $20,000,000. Accordingly, "$24,000,000" in Sections
2.1(i) and 2.3(a)(i) of the Credit Agreement and in the upper left-hand corner
and the sixth line of the first paragraph of the Note are each changed to
"$20,000,000" and "Twenty-Four Million" in the sixth line of the first paragraph
of the Note is changed to "Twenty Million."
(b) Effective December 31, 2000, the amount of credit available
under the Loan Documents shall be reduced from $20,000,000 to $15,000,000.
Accordingly, "$20,000,000" in Sections 2.1(i) and 2.3(a)(i) of the Credit
Agreement and in the upper left-hand corner and the sixth line of the first
paragraph of the Note shall on such date be changed to "$15,000,000" and "Twenty
Million" in the sixth line of the first paragraph of the Note shall be changed
to "Fifteen Million."
(c) The definition of "Maturity Date" in Article I of the Credit
Agreement and the date "June 6, 2000" in Section 2.3(c) of the Credit Agreement
are changed to June 30, 2002; provided, however, that if Borrower does not
satisfy the condition precedent set forth in Section 2(b) below by June 30,
2000, such definition and such date shall be changed to June 30, 2001.
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(d) The definition of "Commitment Termination Date" in Article I
of the Credit Agreement is changed to June 29, 2002; provided, however, that if
Borrower does not satisfy the condition precedent set forth in Section 2(b)
below by June 30, 2000, such definition shall be changed to June 29, 2001.
(e) "2.00%" in Section 2.2(i) of the Credit Agreement is changed
to "3.00%."
2. Conditions Precedent. The effectiveness of the amendments set forth
in Sections 1(c) and (d) above is subject to the satisfaction of the conditions
precedent set forth in subsections (b), (c) and (d) below not later than June
30, 2000 and the satisfaction of the condition precedent set forth in subsection
(a) below not later than July 15, 2000:
(a) evidence satisfactory to Lender that the credit extended by
Colony K-W, LLC is subordinate to the credit extended pursuant to the Loan
Documents;
(b) evidence that Tokai Bank of California has extended the
maturity of its credit facility to Borrower to a date not earlier than June 30,
2002;
(c) Borrower shall have paid to lender a fee in the amount of
$139,691, which fee shall be fully earned by Lender and nonrefundable; and
(d) Borrower shall have paid all of Lender's costs incurred in
connection with this Agreement, including, without limitation, legal costs.
3. Confirmation of Guaranty. Guarantors confirm that they have read this
Agreement, agree to all of its terms and agree that the Guaranty shall continue
in full force and effect to guaranty the repayment of all amounts owing under
the Loan Documents, as amended by this Agreement.
4. Other Amendments. Each reference in the Credit Agreement, the Note
and the Guaranty to the Credit Agreement or the Note will mean and be a
reference to the Credit Agreement and Note as amended by this Agreement.
5. Full Force and Effect. Borrower represents that it has no rights of
setoff relating to or defenses against payment of the credit extended by the
Credit Agreement and the Note, that the indebtedness owing under the Credit
Agreement and Note is payable in accordance with the terms of such documents,
and, except as provided in or contemplated by this Amendment, such documents
remain unmodified and in full force and effect.
6. Entire Agreement. This Agreement constitutes the entire agreement and
understanding among the parties with respect to its subject matter and
supersedes all prior agreements and understandings with respect to such subject
matter, whether oral or written.
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7. Fees and Expenses. Borrower agrees, on Lender's demand, to pay all
costs and expenses incurred by Lender in connection with this Agreement.
XXXXXXX-XXXXXX, INC., a Delaware corporation
By: /s/ XXXXXXX XXXX
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XXXXXXX-XXXXXX INTERNATIONAL, a
California corporation
By: /s/ XXXXXXX XXXX
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XXXXXXX-XXXXXX PROPERTIES LTD., a
Delaware corporation
By: /s/ XXXXXXX XXXX
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K-W PROPERTIES, a California corporation
By: /s/ XXXXXXX XXXX
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EAST-WEST BANK, a California banking corporation
By: /s/ XXXXXXXX XXXX
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Xxxxxxxx Xxxx, First Vice President
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