EXHIBIT 10.5
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THIRD NOTE MODIFICATION AGREEMENT
AND CONFIRMATION OF GUARANTY
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THIS THIRD NOTE MODIFICATION
AGREEMENT AND CONFIRMATION OF GUARANTY
is executed as of June 16, 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").
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,a s
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 (such
Promissory
Note, the First Modification and the Second 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 guaranteed 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 and the
Second
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.
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NOW THEREFORE, in consideration of
the foregoing premises and other
good and valuable consideration, the Maker and t
