EXHIBIT 10.4
- ------------
NOTE MODIFICATION AGREEMENT
AND CONFIRMATION OF GUARANTY
THIS NOTE MODIFICATION AGREEMENT AND CONFIRMATION OF GUARANTY is
executed as of May 12, 2009 (the "Effective Date"), by WAIKELE COUNTRY CLUB
INC., a Hawaii corporation, whose address is 1750 Kalakaua Avenue, Suite
3603, Honolulu, Hawaii 96826 (the "Maker"), WAIKELE GOLF COURSE, LLC, a
Delaware limited liability company, whose address is 900 North Michigan
Avenue, Suite 1400, Chicago, Illinois 60611 (the "Holder"), DONG YANG
ENTERPRISE INC., a Hawaii corporation, whose address is 1750 Kalakaua
Avenue, Suite 3603, Honolulu, Hawaii 96826, and SAM SOON SUN, an
individual, whose address is 1750 Kalakaua Avenue, Suite 3603, Honolulu,
Hawaii 96826 (Dong Yang Enterprise Inc. and Sam Soon Sun being collectively
referred to herein as the "Guarantor").
WITNESSETH THAT:
----------------
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) (the "Note") which principal amount was fully funded and
remains outstanding, which Note is 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;
WHEREAS, the Maker, the Holder and each Guarantor acknowledge that as
of the Effective Date, prior to any payments to be made pursuant to
paragraph 1 below, no principal amounts have been paid by Maker or
Guarantor under the Note;
WHEREAS, the Maker and the Holder have agreed to modify the Note as
hereinafter provided; and
WHEREAS, each Guarantor has agreed to confirm that the obligations of
each Guarantor under the Guaranty remain in full force and effect.
1
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 (b) is revised in its entirety to state as follows:
"(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
principal payment in the amount of $800,000.00 shall be made by the
Maker to the Holder on May 19, 2009. An additional principal payment
in the amount of $1,000,000.00 shall be made by the Maker to the
Holder on August 12, 2009. All unpaid principal and accrued interest
shall be due and payable in full, unless sooner paid, on November 12,
2009 (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 confirms 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.
AND, in further consideration of the premises, each of the Maker and
the Guarantor hereby (i) affirms 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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
2
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 Yong Park
------------------------------
Name: Ji Yong Park
Title: President
Maker
WAIKELE GOLF COURSE, LLC,
a Delaware limited liability company
By /s/ Janis G. Yee
------------------------------
Name: Janis G. Yee
Title: Vice President
Holder
DONG YANG ENTERPRISE INC.,
a Hawaii Corporation
By /s/ Ji Yong Park
------------------------------
Name: Ji Yong Park
Title: President
Guarantor
/s/ Sam Soon Sun
-------------------------------------
SAM SOON SUN
Guarantor
3