EXHIBIT 10.3
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WAIKELE GOLF COURSE, LLC
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
October 29, 2008
Waikele Country Club Inc.
c/o Xxxx X. Xxxxxxx, Esq.
Van Xxxxx Xxxxxxxx & Shimizu
Topa Financial Center, Fort Street Tower
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Re: Waikele Golf Course, LLC - Waikele Country Club Inc.
Property Purchase Agreement Dated as of April 8, 2008,
as Amended, Assigned and Affected by the Conversion
Described Below
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Gentlemen:
Reference is made to that certain Property Purchase Agreement dated
as of April 8, 2008, executed by Waikele Golf Course, LLC, as Seller, and
Xxxx Xxxx Enterprise Inc., as Purchaser, as amended by that certain letter
agreement dated June 4, 2008, the interest of Purchaser under the Property
Purchase Agreement, as amended, having been assigned to Waikele Country
Club LLC by that certain Assignment and Assumption Agreement and Consent
dated June 5, 2008. Pursuant to Articles of Conversion dated July 10,
2008, filed in the Department of Commerce and Consumer Affairs of the State
of Hawaii on July 14, 2008, Waikele Country Club LLC was converted to a
Hawaii corporation, the name of the resulting corporation being Waikele
Country Club Inc. By Consent and Confirmation of Obligations Under
Property Purchase Agreement dated July 14, 2008, Waikele Golf Course, LLC
consented to the conversion as described above. The Property Purchase
Agreement was further amended by that certain letter agreement dated
August 7, 2008, by that certain letter agreement dated September 8, 2008
and by that certain letter agreement dated October 7, 2008. The Property
Purchase Agreement, as amended, assigned and affected by the conversion as
described above, is hereinafter referred to as the "Agreement". This is to
confirm that the Agreement shall be further amended, as of October 29,
2008, in the manner described below.
1. In Section 2 of the Agreement, the first sentence of Section 2
shall be deleted and replaced by the following sentence:
"The purchase price ("Purchase Price") to be paid by Purchaser
for the property shall be TWENTY-THREE MILLION TWO HUNDRED EIGHTY-
Waikele Country Club Inc.
October 29, 2008
Page 2
NINE THOUSAND SIX HUNDRED AND NO/100 U.S. DOLLARS (U.S.
$23,289,600.00)."
2. In Section 2 of the Agreement, subsections (a), (b) and (c)
shall be deleted and replaced by the following subsections:
"(a) DEPOSIT. Within five (5) days following the Effective
Date, Purchaser deposited into Escrow the sum of FIVE HUNDRED
THOUSAND AND NO/100 U.S. DOLLARS (U.S. $500,000.00) (the "Initial
Deposit"), to be held and disbursed by Escrow Agent in accordance
with this Agreement. Within two (2) business days following the
deposit of the Initial Deposit, a portion of the Initial Deposit in
the amount of ONE HUNDRED THOUSAND AND NO/100 U.S. DOLLARS (U.S.
$100,000.00) was disbursed by the Escrow Agent to Seller, which
portion of the Initial Deposit became the property of Seller,
provided that at Closing, such disbursement in the amount of
$100,000.00 shall be credited against the Purchase Price.
(b) ADDITIONAL DEPOSITS. When Purchaser elected to proceed
with the purchase of the Property in accordance with Section 10(g) of
this Agreement, in addition to the Initial Deposit ($100,000.00 of
which was disbursed to Seller in accordance with Section 1(a) above),
Purchaser deposited into Escrow the sum of FIVE HUNDRED THOUSAND AND
NO/100 U.S. DOLLARS (U.S. $500,000.00) (the "First Additional
Deposit"), to be held and disbursed by Escrow Agent in accordance
with this Agreement. On or about June 9, 2008, Purchaser deposited
into Escrow the additional sum of SIX HUNDRED THOUSAND AND NO/100
U.S. DOLLARS (U.S. $600,000.00) (the "Second Additional Deposit"), to
be held and disbursed by Escrow Agent in accordance with this
Agreement. On or about June 9, 2008, the balance of the Initial
Deposit ($400,000.00) and the First Additional Deposit ($500,000.00)
were disbursed by Escrow Agent to Seller, which disbursement in the
amount of $900,000.00 became the property of Seller, provided that at
Closing, such disbursement in the amount of $900,000.00 shall be
credited against the Purchase Price. On or about July 9, 2008,
Purchaser deposited into Escrow the additional sum of SIX HUNDRED
THOUSAND AND NO/100 U.S. DOLLARS (U.S. $600,000.00) (the "Third
Additional Deposit"), to be held and disbursed by Escrow Agent in
accordance with this Agreement.
On or about August 8, 2008, the Second Additional Deposit and
the Third Additional Deposit were disbursed by Escrow Agent to
Seller, which disbursement in the amount of $1,200,000.00 became the
property of Seller, provided that at Closing, such disbursement in
the amount of $1,200,000.00 shall be credited against the Purchase
Price. On or about August 19, 2008, Purchaser deposited into Escrow
the additional sum of SIX HUNDRED THOUSAND AND NO/100 U.S. DOLLARS
Waikele Country Club Inc.
October 29, 2008
Page 3
(U.S. $600,000.00) (the "Fourth Additional Deposit"), to be held and
disbursed by Escrow Agent in accordance with this Agreement. On or
about August 19, 2008, the Fourth Additional Deposit was disbursed by
Escrow Agent to Seller, which disbursement in the amount of
$600,000.00 became the property of Seller, provided that at Closing,
such disbursement in the amount of $600,000.00 shall be credited
against the Purchase Price. On or about September 8, 2008, Purchaser
deposited into Escrow the additional sum of FIVE HUNDRED FIFTY
THOUSAND AND NO/100 U.S. DOLLARS (U.S $550,000.00) (the "Fifth
Additional Deposit"), to be held and disbursed by Escrow Agent in
accordance with this Agreement. On or about September 8, 2008, the
Fifth Additional Deposit was disbursed by Escrow Agent to Seller,
which disbursement in the amount of $550,000.00 became the property
of Seller, provided that at Closing, such disbursement in the amount
of $550,000.00 shall be credited against the Purchase Price. On or
about September 10, 2008, Purchaser deposited into Escrow the
additional sum of ONE HUNDRED THOUSAND AND NO/100 U.S. DOLLARS (U.S.
$100,000.00) (the "Sixth Additional Deposit") to be held and
disbursed by Escrow Agent in accordance with this Agreement. On or
about September 10, 2008, the Sixth Additional Deposit was disbursed
by Escrow Agent to Seller, which disbursement in the amount of
$100,000.00 became the property of Seller, provided that at Closing
such disbursement in the amount of $100,000.00 shall be credited
against the Purchase Price. On or about September 19, 2008,
Purchaser deposited into Escrow the additional sum of THREE HUNDRED
THOUSAND AND NO/100 U.S. DOLLARS (U.S. $300,000.00) (the "Seventh
Additional Deposit") to be held and disbursed by Escrow Agent in
accordance with this Agreement. On or about September 19, 2008, the
Seventh Additional Deposit was disbursed by Escrow Agent to Seller,
which disbursement in the amount of $300,000.00 became the property
of Seller, provided that at Closing, such disbursement in the amount
of $300,000.00 shall be credit against the Purchase Price.
Upon payment of the Fourth Additional Deposit, as required
under this Section 2(b), the Closing Date was extended to
September 8, 2008. Upon payment of the Fifth Additional Deposit,
the Sixth Additional Deposit and the Seventh Additional Deposit, as
required under this Section 2(b), the Closing Date was extended to
October 7, 2008. In consideration of the increase in the Purchase
Price from $23,250,000.00 to $23,289,600.00, the Closing Date was
extended to October 29, 2008. Upon the additional sum of TWO HUNDRED
THOUSAND AND NO/100 U.S. DOLLARS (U.S. $200,000.00) (the "Eighth
Additional Deposit") being deposited by Purchaser into Escrow on or
before October 29, 2008, which Eighth Additional Deposit shall be
held and disbursed by Escrow Agent in accordance with this Agreement,
the Closing Date is being further extended to November 12, 2008.
Promptly upon receiving the Eighth Additional Deposit, Escrow Agent
Waikele Country Club Inc.
October 29, 2008
Page 4
shall disburse the Eighth Additional Deposit to Seller, which
disbursement in the amount of $200,000.00 shall become the property
of Seller (with no further instructions or approval from Purchaser
required), provided that at Closing, such disbursement in the amount
of $200,000.00 shall be credited against the Purchase Price.
Neither the Initial Deposit, the First Additional Deposit, the
Second Additional Deposit, the Third Additional Deposit, the Fourth
Additional Deposit, the Fifth Additional Deposit, the Sixth
Additional Deposit, the Seventh Additional Deposit nor the Eighth
Additional Deposit (collectively, the "Deposit"), shall be refundable
to Purchaser, Purchaser acknowledging that such Initial Deposit,
First Additional Deposit, Second Additional Deposit, Third Additional
Deposit, Fourth Additional Deposit, Fifth Additional Deposit, Sixth
Additional Deposit, Seventh Additional Deposit and Eighth Additional
Deposit, in the total amount of $3,950,000.00, are the property of
Seller and are being paid by Purchaser through Escrow to Seller in
consideration of Seller agreeing to extend the Closing Date
(collectively, the "Extension Fees"). At Closing, the Extension Fees
shall be credited against the Purchase Price.
(c) FORM OF CONSIDERATION AT CLOSING. Purchaser shall:
(i) On or before 11:59 a.m. (HST) one (1) business day
prior to the Closing Date (as defined below), Purchaser shall deposit
into Escrow the sum of SIX MILLION EIGHTY-NINE THOUSAND SIX HUNDRED
AND N0/100 U.S. DOLLARS (U.S. $6,089,600.00) (the "Final Deposit"),
together with Purchaser's share of the closing costs, Escrow Agent's
fees, applicable prorated items and such other amounts to be paid by
Purchaser at Closing pursuant to this Agreement. The Final Deposit
shall be disbursed to Seller at Closing as a portion of the Purchase
Price.
(ii) On or before two (2) business days prior to the Closing
Date, Purchaser shall deposit into Escrow a Promissory Note executed
by Purchaser in favor of Seller in the principal sum of THIRTEEN
MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 U.S. DOLLARS (U.S.
$13,250,000.00) (the "Promissory Note"), which amount is intended to
reflect the Purchase Price, less the Final Deposit and less a credit
provided by Seller at Closing in an amount equal to the Extension
Fees previously paid by Purchaser to Seller under this Agreement.
The Promissory Note shall be due and payable in full on or before
May 12, 2009 (the "Maturity Date"). The Promissory Note shall
provide for interest to be charged at the rate of seven percent (7%)
per annum with monthly payments of interest only to be made on the
twelfth (12th) day of each month prior to the Maturity Date
commencing on December 12, 2008. With each payment of interest,
Waikele Country Club Inc.
October 29, 2008
Page 5
Purchaser shall also pay to Seller the amount of the Hawaii General
Excise Tax and the City and County of Honolulu surcharge imposed on
Seller by reason of the interest payment, which excise tax and
surcharge shall be payable at the rate of 4.712% (or any increase in
such rate that may occur). The Promissory Note shall be in the form
attached hereto as EXHIBIT "A". The Promissory Note shall be secured
by a first lien, Mortgage, Assignment of Leases and Rents, Security
Agreement, Financing Statement and Fixture Filing, executed by
Purchaser in favor of Seller, encumbering the Property, subject only
to the title exceptions specified in Exhibit "A" attached thereto
(the "Mortgage"). The Mortgage shall provide that Purchaser shall
not sell, transfer, further mortgage, further pledge or encumber the
Property, or transfer any direct or indirect interest in Purchaser,
in any way without the prior written consent of Seller, which consent
may be withheld in Seller's sole and absolute discretion, all as more
specifically set forth in the Mortgage. The Mortgage shall be in the
form attached hereto as EXHIBIT "B". Seller's security interest in
the personal property constituting the Property shall be perfected by
the recording of a UCC Financing Statement (the "UCC Financing
Statement"), which UCC Financing Statement shall be recorded in the
State of Hawaii. The UCC Financing Statement shall be in the form
attached hereto as EXHIBIT "C". Seller's obligations under the
Promissory Note and the Mortgage shall be guaranteed under the terms
of a Guaranty, executed by Xxxx Xxxx Enterprise Inc., a Hawaii
corporation, and Ms. Xxx Soon Sun (collectively, "Guarantors"), the
principal of Purchaser and of Xxxx Xxxx Enterprise Inc., in favor of
Seller (the "Guaranty"). The Guaranty shall be in the form attached
hereto as EXHIBIT "D". At Closing, the Promissory Note, together
with the Guaranty, shall be delivered to Seller, as a portion of the
Purchase Price, the Mortgage shall be duly filed in the Office of the
Assistant Registrar of the Land Court of the State of Hawaii and
recorded in the Bureau of Conveyances of the State of Hawaii and the
UCC Financing Statement shall be recorded in the Bureau of
Conveyances of the State of Hawaii."
3. In Section 5 of the Agreement, subsections (a), (b) and (c)
shall be deleted and replaced by the following subsections:
"(a) CLOSING DATE. As used in this Agreement, the term
"Closing Date" means the date the Deed, the Mortgage and the UCC
Financing Statement are recorded in the Office of the Assistant
Registrar of the Land Court of the State of Hawaii and in the Bureau
of Conveyances of the State of Hawaii, and the term "Closing" shall
refer to the recordation of the Deed, the Mortgage and the UCC
Financing Statement, the delivery of the Conveyance Documents, the
delivery of the Promissory Note and the Guaranty to Seller and the
disbursal of the Final Deposit and any other funds by Escrow Agent to
Seller as provided in this Agreement.
Waikele Country Club Inc.
October 29, 2008
Page 6
(b) CLOSING DOCUMENTATION. On or before two (2) business
days prior to the Closing Date, Seller and/or Purchaser, as
appropriate, shall execute and deliver to Escrow Agent the Conveyance
Documents, the Promissory Note, the Mortgage, the UCC Financing
Statement, the Guaranty and such additional documents and items as
may be required to consummate the transaction pursuant to this
Agreement.
(c) DISBURSAL OF FINAL DEPOSIT AT CLOSING. At Closing,
Escrow Agent shall disburse to Seller the Final Deposit (less
Seller's share of the closing costs, Escrow Agent's fees and
applicable prorated items), shall record the Deed, the Mortgage and
the UCC Financing Statement, shall appropriately deliver the other
executed Conveyance Documents and shall deliver to Seller the
executed Promissory Note and the executed Guaranty."
4. In Section 30 of the Agreement, the first and second paragraphs
of Section 30 shall be deleted and replaced by the following paragraphs:
"30. BROKERAGE. Seller has agreed to pay a brokerage
commission to Lexon, Inc. - Xx. Xxxxxxxxx X. X. Xxx, which is
Purchaser's real estate broker in this transaction ("Purchaser's
Broker"). The brokerage commission to be paid by Seller to
Purchaser's Broker shall be payable and paid as follows: (i) upon
the Closing, the amount of $400,000.00 shall be payable and paid to
Purchaser's Broker; and (ii) after the Closing upon payment by
Purchaser and/or Guarantors of the Promissory Note in full, the
amount of $520,000.00, provided that (a) if any principal under the
Promissory Note is prepaid to Seller, Seller agrees to promptly
prepay a portion of the commission at the rate of 4% of the amount of
principal that was prepaid, (b) if Seller and Purchaser agree in
writing to extend the Maturity Date of the Promissory Note (it being
acknowledged by the undersigned that Seller is under no obligation or
in any way committed to extend the Maturity Date), it is agreed that
on the original Maturity Date, Purchaser shall pay to Purchaser's
Broker an amount equal to 4% of the principal balance of the Note as
of the original Maturity Date in full satisfaction of Seller's and
Purchaser's obligations to pay Purchaser's Broker any additional
amount as a commission in this transaction, and if such payment by
Purchaser to Purchaser's Broker is made, Seller agrees that upon
payment by Purchaser and/or Guarantors of the Promissory Note in
full, the amount paid by Purchaser to Purchaser's Broker shall be
credited against the principal balance due Seller, which credit shall
be given as of the date that the Promissory Note is paid in full, and
(c) in no event shall any unpaid portion of the commission be payable
or paid nor shall the credit against the principal balance due
Seller as described in clause (b) above be given if payment of the
Promissory Note is made, in whole or in part, by way of a foreclosure
action and/or a deed in lieu of foreclosure.
Waikele Country Club Inc.
October 29, 2008
Page 7
Seller hereby instructs Escrow Agent to pay the portion
of the commission, set forth in clause (i) of the first paragraph of
this Section 30, in the amount of $400,000.00 to Purchaser's Broker
at Closing from the Purchase Price to be otherwise disbursed to
Seller at Closing in accordance with this Agreement. In no event
shall any portion of the commission be payable or paid to
Purchaser's Broker unless and until the conditions specified above
have been satisfied whether the occurrence of such conditions is
prevented or does not occur by reason of Seller's default,
Purchaser's default or otherwise.
Seller has also agreed to pay a brokerage commission to
Xxxxxxxx & Co, Ltd., which is Seller's real estate broker in this
transaction ("Seller's Broker"). The brokerage commission to be paid
to Seller's broker is to be paid by Seller pursuant to the terms of a
separate agreement, which provides (i) upon the Closing, the amount
of $200,000.00 shall be payable and paid to Seller's Broker; and (ii)
after the Closing upon payment by Purchaser and/or Guarantors of the
Promissory Note in full, the amount of $260,000.00, provided that (a)
if any principal under the Promissory Note is prepaid to Seller,
Seller agrees to promptly prepay a portion of the commission at the
rate of 2% of the amount of principal that was prepaid, and (b) in no
event shall any unpaid portion of the commission be payable or paid
to Seller's Broker if payment of the Promissory Note is made, in
whole or in part, by way of a foreclosure action and/or a deed in
lieu of foreclosure.
Seller hereby instructs Escrow Agent to pay the portion
of the commission, set forth in clause (i) of the third paragraph of
this Section 30, in the amount of $200,000.00 to Seller's Broker at
Closing from the Purchase Price to be otherwise disbursed to Seller
at Closing in accordance with this Agreement. In no event shall any
portion of the commission be payable or paid to Seller's Broker
unless and until the conditions specified above have been satisfied
whether the occurrence of such conditions is prevented or does not
occur by reason of Seller's default, Purchaser's default or
otherwise.
To facilitate the payment of any commission to be paid to
Purchaser's Broker and/or to Seller's Broker after Closing, Seller
and Buyer agree that all principal payments to be made under the
Promissory Note, including, without limitation, any prepayment of
principal under the Promissory Note, shall be made by Purchaser to
Title Guaranty Escrow Services, Inc., 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx 00000, Attention: Xx. Xxx Xxxxxxxx (the "Payment Escrow").
Upon receipt of any such principal payment, the Payment Escrow shall
promptly (i) disburse any commission due Purchaser's Broker to
Purchaser's Broker, (ii) disburse any commission due Seller's Broker
to Seller's Broker, and (iii) disburse the balance of such principal
payment to Seller. It is further agreed that upon the payment of the
Waikele Country Club Inc.
October 29, 2008
Page 8
Promissory Note and all sums due under the Mortgage in full, the
recording of the release of Mortgage and the release of the UCC
Financing Statement shall be effected through the Payment Escrow.
The cost of setting up and maintaining the Payment Escrow and all
related charges shall be paid by Purchaser.
The terms and conditions of this Section 30 shall survive
the Closing."
5. In all other respects, the terms and conditions of the
Agreement shall remain unchanged and in full force and effect.
By signing below, Xxxx Xxxx Enterprise Inc. ("Xxxx Xxxx") hereby
acknowledges that Xxxx Xxxx is not being released from its obligations
under the Agreement, as amended by the terms of this letter agreement, all
rights of Waikele Golf Course, LLC against Xxxx Xxxx being hereby expressly
reserved.
By signing below, Lexon, Inc., Xx. Xxxxxxxxx X. X. Xxx, Xxxxxxxx &
Co., Ltd. and Xxxxxxx Xxxxxxxx are agreeing to the terms of Section 30 as
set forth above.
If this is acceptable to you, please sign a copy of this letter,
which may be signed in counterparts, and return it to our counsel, Xxx
Xxxxxxxxx.
Very truly yours,
WAIKELE GOLF COURSE, LLC
By /s/ Xxxxx X. Xxx
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Xxxxx X. Xxx
Vice President
Accepted and agreed as of October 29, 2008.
WAIKELE COUNTRY CLUB INC.
By: /s/ Ji Xxxx Xxxx
------------------------------
Name: Ji Xxxx Xxxx
Title: President
Waikele Country Club Inc.
October 29, 2008
Page 9
Acknowledged as of October 29, 2008.
XXXX XXXX ENTERPRISE INC.
By: /s/ Ji Xxxx Xxxx
------------------------------
Name: Ji Xxxx Xxxx
Title: Its Vice President
Acknowledged, accepted and agreed as of
October 29, 2008.
LEXON, INC.
By: /s/ Xxxxxxxxx Xxx
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Name: Xxxxxxxxx Xxx
-------------------------
Title: President
-------------------------
/s/ Alexander X. X. Xxx
------------------------------
Alexander X. X. Xxx
Acknowledged, accepted and agreed as of
October 29, 2008.
XXXXXXXX & CO., LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------
Title: President
-------------------------
/s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx
PROMISSORY NOTE
Honolulu, Hawaii
$13,250,000.00 November 12, 2008
FOR VALUE RECEIVED, WAIKELE COUNTRY CLUB INC., a Hawaii corporation
(the "Maker"), promises to pay to the order of WAIKELE GOLF COURSE, LLC, a
Delaware limited liability company, whose address is 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the
holder of this Note (the "Holder") may from time to time designate, the
principal sum of THIRTEEN MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100
U.S. DOLLARS (U.S. $13,250,000.00), together with interest on the principal
sum from the date hereof at the interest rates specified below on the
principal balance remaining unpaid.
INTEREST. Interest on the principal balance of this Note shall
accrue at the rate of seven percent (7%) per annum. Interest shall be
computed on the basis of the actual number of days elapsed from the date of
advance by Holder through the date of payment.
PAYMENTS; MATURITY DATE.
(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).
(b) All unpaid principal and accrued interest shall be due
and payable in full, unless sooner paid, on May 12, 2009 (the "Maturity
Date").
(c) With each payment of interest that is made by the Maker
to the Holder under the terms of this Note, the Maker shall also pay to the
Holder the amount of the Hawaii General Excise Tax and the City and County
of Honolulu surcharge imposed on and paid by the Holder by reason of the
payment of the interest, which general excise tax and surcharge shall be
payable at the rate of 4.712% (which rate shall be adjusted if the rate
imposed by the State of Hawaii and/or the City and County of Honolulu is
increased or decreased in the future). The Maker acknowledges and agrees
that the amount of each excise tax payment, (and any other similar tax
imposed by any governmental entity), when added to the interest payment,
shall yield to the Holder, after deduction of such tax, a net amount equal
to that which the Holder would have realized from such payment of interest
had no such tax been imposed.
(d) The Maker may prepay all or any portion of the principal
amount of this Note at any time, without premium or penalty.
1
(e) Except in the case of an election to the contrary by the
Holder and to the extent permitted by law, all payments will be applied
first to unpaid charges under this Note and that certain Mortgage,
Assignment of Leases and Rents, Security Agreement, Financing Statement and
Fixture Filing, executed by the Maker in favor of the Holder (the
"Mortgage"), which Mortgage secures this Note, then fees, then interest and
then principal. Absent manifest error, the records of the Holder shall be
determinative of all amounts owed under this Note and the Mortgage.
(f) Principal, interest and all other amounts to be paid
under this Note shall be payable in lawful money of the United States of
America in immediately available funds.
DEFAULT. If the Maker shall default in the payment of interest,
principal, fees or charges when due under this Note; or if any of the other
Events of Default (as defined in the Mortgage) shall occur; then, and in
any such event, the Holder shall have the option to declare the unpaid
principal sum of this Note, together with all interest accrued thereon, and
all fees, charges and other sums payable under the Note and the Mortgage to
be immediately due and payable. Thereupon, the unpaid principal balance,
all accrued but unpaid interest and all fees, charges and other sums shall
become and be due and payable without presentment, demand, protest or
notice of any kind, all of which are expressly waived. Upon (i) any of the
Events of Default (as defined in the Mortgage) that is continuing, (ii) the
Maturity Date, and/or (iii) maturity by acceleration, the unpaid principal
balance and all such fees, charges and other sums shall thereafter bear
interest until fully paid at a rate equal to twelve percent (12%) per
annum. Failure to exercise this option shall not constitute a waiver of
the right to exercise the option in the event of the same or any subsequent
default.
U.S. MONEY. Principal and interest shall be payable in lawful money
of the United States of America in immediately available funds.
ATTORNEYS' FEES. The Maker promises to pay the Holder's attorneys'
fees and such other expenses incurred in enforcing the payment of this Note
or any portion of the indebtedness evidenced hereby and/or enforcing any
term or provision of the Mortgage, whether or not suit is brought hereon.
WAIVER. Except as otherwise provided herein, the Maker of this Note
and all others who may become liable for any part of this obligation
severally waive presentment, protest, demand and notice of protest, demand,
dishonor and nonpayment of this Note and consent to any number of renewals
or extensions of the time of payment hereof and to any release of parties
obligated hereunder or forbearance in the enforcement of this Note.
NO ORAL WAIVER, MODIFICATION OR CANCELLATION. No provision in this
Note may be waived, modified or canceled orally, but only by an agreement
in writing and signed by the party against whom enforcement of any waiver,
modification, discharge or cancellation is sought.
GOVERNING LAW. This Note shall be governed by and construed
according to the laws of the State of Hawaii.
2
LIMITATIONS ON INTEREST. Notwithstanding any provision to the
contrary contained in this Note or the Mortgage, the rate and amount of
interest which the Maker shall be required to pay to the Holder shall in no
event, contingency or circumstance exceed the maximum rate or amount
limitation, if any, imposed by applicable law. If, from any circumstance
whatsoever, performance by the Maker of any obligation under the Note or
the Mortgage at the time performance shall be due (including, without
limiting the generality of the foregoing, the payment of any fee, charge or
expense paid or incurred by the Maker which shall be held to be interest),
shall involve transcending the limits of validity prescribed by law, if
any, then, automatically, such obligation to be performed shall be reduced
to the limit of such validity prescribed by applicable law. If,
notwithstanding the foregoing limitations, any excess interest shall at the
maturity of this Note be determined to have been received, the same shall
be deemed to have been held as additional security. The foregoing
provisions shall never be superseded or waived and shall control every
other provision of all agreements between the Holder and the Maker.
NOTICES. Any notice required or permitted hereunder shall be in
writing and shall be deemed delivered (a) as of the date of delivery, if
personally delivered; (b) as of the date of delivery (whether accepted or
refused) established by the United States Post Office return receipt or an
overnight courier's proof of delivery as the case may be; or (c) upon
receipt, as determined by telecopier confirmation by the sending
telecopier, if sent by telecopier, to Seller or Purchaser at the addresses
or telecopier numbers specified below:
Holder: Waikele Golf Course, LLC
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
With a copy to: Xxxxxxxxx Tanaka Xxxxxxxx Xxxxxx &
Tanaka, LLLC
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
Maker: Waikele Country Club Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
With a copy to: Xxxxx X. X. Xxx, Esq.
Attorney-at-Law
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
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Notices shall be addressed to any other person and addressed and sent by
telecopier to any other telecopy number as may be specified from time to
time by any party by written notice to the other party.
TIME IS OF THE ESSENCE. Time is of the essence in the payment and
performance of the Maker's obligations under this Note and the Mortgage.
COMMERCIAL TRANSACTION. The Maker acknowledges that this Note
evidences indebtedness incurred by the Maker in a commercial transaction.
IN WITNESS WHEREOF, the Maker has caused this Note to be duly
executed as of the date specified above.
WAIKELE COUNTRY CLUB INC.,
a Hawaii corporation
By
------------------------------
Name: Ji Xxxx Xxxx
Title: President
Maker
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