EXHIBIT 10
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FOURTH NOTE MODIFICATION AGREEMENT
AND CONFIRMATION OF GUARANTY
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THIS FOURTH NOTE MODIFICATION AGREEMENT AND CONFIRMATION OF GUARANTY
is executed as of November 12, 2009 (the "Effective Date"), by WAIKELE
COUNTRY CLUB INC., a Hawaii corporation, whose address is 0000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000 (the "Maker"), WAIKELE GOLF
COURSE, LLC, a Delaware limited liability company, whose address is 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (the "Holder"),
XXXX XXXX ENTERPRISE INC., a Hawaii corporation, whose address is 0000
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000, and XXX SOON SUN, an
individual, whose address is 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx,
Xxxxxx 00000 (Xxxx Xxxx Enterprise Inc. and Xxx Soon Sun being collectively
referred to herein as the "Guarantor").
W I T N E S S E T H T H A T:
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WHEREAS, the Maker executed that certain Promissory Note dated
November 12, 2008, in favor of the Holder, in the principal amount of
THIRTEEN MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($13,250,000.00), as modified by that certain Note Modification Agreement
and Confirmation of Guaranty (the "First Modification") dated as of May 12,
2009, executed by the Maker, the Holder and the Guarantor, as further
modified by that certain Second Note Modification Agreement and
Confirmation of Guaranty (the "Second Modification") dated as of May 19,
2009 executed by the Maker, the Holder and the Guarantor, and as further
modified by that certain Third Note Modification Agreement and Confirmation
of Guaranty (the "Third Modification") dated as of June 16, 2009 (such
Promissory Note, the First Modification, the Second Modification and the
Third Modification being collectively referred to herein as the "Note"),
which principal amount was fully funded, the Note being secured by that
certain Mortgage, Assignment of Leases and Rents, Security Agreement,
Financing Statement and Fixture Filing dated November 12, 2008, filed in
the Office of the Assistant Registrar of the Land Court of the State of
Hawaii as Land Court Document No. 3805044, and noted on Transfer
Certificate of Title No. 928,280, and also recorded in the Bureau of
Conveyances of the State of Hawaii as Document No. 2008-172621, a UCC
Financing Statement having been filed as Document No. 2008-172622
(collectively, the "Mortgage");
WHEREAS, Maker's obligations under the Note and the Mortgage have
been guarantied by each Guarantor under the terms of that certain Guaranty
dated November 12, 2008, executed by each Guarantor in favor of the Holder;
which Guaranty was reaffirmed by the First Modification, the Second
Modification and the Third Modification;
WHEREAS, the Maker and the Holder have agreed to further modify the
Note as hereinafter provided; and
WHEREAS, each Guarantor has agreed to again confirm that the
obligations of each Guarantor under the Guaranty remain in full force and
effect.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the Maker and the Holder mutually agree
that the Note is modified, as of the Effective Date, as follows:
1. In the section of the Note entitled "Payments; Maturity Date",
subsection (a) and subsection (b) are revised in their entirety to state as
follows:
"(a) Monthly payments of interest on the outstanding principal
balance of this Note shall be payable commencing on the 12th day of
December, 2008, and continuing on the same day of every month
thereafter until the Maturity Date (as defined below); provided that
on November 12, 2009, the Maker shall (i) pay to the Holder the
monthly payment of interest due on November 12, 2009 under the terms
of this Note, (ii) prepay to the Holder the monthly payment of
interest that would be due on December 12, 2009 under the terms of
this Note, and (iii) prepay to the Holder the monthly payment of
interest that would be due on January 12, 2010 under the terms of
this Note, it being acknowledged by the Holder that by reason of such
prepayments of the monthly payments of interest, no monthly payment
of interest would be required to be paid on February 12, 2010 and
continuing on the same day of every month thereafter until the
Maturity Date.
(b) A principal payment in the amount of $200,000.00 shall
be made by the Maker to the Holder on May 12, 2009. An additional
payment in the amount of $50,000.00 shall be made by the Maker to the
Holder on May 20, 2009, which payment shall be applied first to
accrued and unpaid interest through such date with the remainder
applied to the outstanding principal balance of the Note. An
additional payment in the amount of $100,000.00 shall be made by the
Maker to the Holder on June 16, 2009, which payment shall be applied
first to accrued and unpaid interest through such date with the
remainder applied to the outstanding principal balance of the Note.
An additional payment in the amount of $100,000.00 shall be made by
the Maker to the Holder on June 23, 2009, which payment shall be
applied first to accrued and unpaid interest through such date with
the remainder applied to the outstanding principal balance of the
Note. An additional payment in the amount of $100,000.00 shall be
made by the Maker to the Holder on September 12, 2009, which payment
shall be applied first to accrued and unpaid interest, if any,
through such date with the remainder applied to the outstanding
principal balance of the Note. An additional principal payment in
the amount of $1,000,000.00 shall be made by the Maker to the Holder
on November 12, 2009. All unpaid principal and accrued interest
shall be due and payable in full, unless sooner paid, on May 12, 2010
(the "Maturity Date")."
2. In all other respects the terms and conditions of the Note, as
modified by this instrument, (i) shall remain in full force and effect, and
(ii) shall continue to be secured by the Mortgage, which Mortgage is hereby
confirmed.
AND each Guarantor hereby reconfirms to the Holder that the
obligations of each Guarantor under the Guaranty remain in full force and
effect and that each Guarantor is obligated to repay the outstanding
principal balance under the Note, as modified by this instrument, together
with interest thereon, all in accordance with the terms of the Guaranty,
the Note, as modified by this instrument, and the Mortgage.
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AND, in further consideration of the premises, each of the Maker and
the Guarantor hereby (i) reaffirms to the Holder that neither the Maker nor
the Guarantor possesses any offset or defense to the enforcement of the
Note, as modified by this instrument, to the enforcement of the Mortgage
and/or to the enforcement of the debt evidenced and secured thereby, (ii)
waives and releases all defenses and agrees not to assert any offset or
defense arising out of events or occurrences prior to the Effective Date,
and (iii) confirms that this instrument evidences a revision to the Note
and not a novation.
This instrument may be executed in one or more counterparts. It
shall be fully executed when each party whose signature is required has
signed at least one counterpart even though no one counterpart contains the
signatures of all of the parties. Each executed counterpart shall be
deemed an original, but all of such counterparts together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Maker, the Holder and the Guarantor have
executed this instrument as of the Effective Date.
WAIKELE COUNTRY CLUB INC.,
a Hawaii corporation
By /s/ Ji Xxxx Xxxx
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Name: Ji Xxxx Xxxx
Title: President
Maker
WAIKELE GOLF COURSE, LLC,
a Delaware limited liability company
By /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Vice President
Holder
XXXX XXXX ENTERPRISE INC.,
a Hawaii Corporation
By /s/ Ji Xxxx Xxxx
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Name: Ji Xxxx Xxxx
Title: President
Guarantor
/s/ Xxx Soon Sun
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XXX SOON SUN
Guarantor
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