Contract
Exhibit 10.2
AMENDMENT TO LOAN
DOCUMENTS
THIS
AMENDMENT TO LOAN DOCUMENTS (“Amendment”), dated December 31, 2009, but
effective as of December 31, 2009, by and between FIRST HAWAIIAN BANK,
a Hawaii
corporation (the “Lender”), and PACIFIC OFFICE PROPERTIES, L.P., a Delaware
limited partnership (the “Borrower”); and XXXXXXX EQUITIES L.P., a Hawaii
limited partnership (the “Pledgor”);
W I T N E S S E T
H T H A T:
WHEREAS,
the Lender and the Borrower entered into that certain credit agreement (the
“Credit Agreement”), dated September 2, 2009, relating to a credit facility (the
“Credit Facility”)
in the principal amount of $10,000,000.00 made by the Lender to the Borrower;
and
WHEREAS,
in connection therewith, the Borrower and the Lender executed certain “Loan
Documents”, as defined in the Credit Agreement; and
WHEREAS,
the Borrower has requested the Lender to increase the principal amount of the
Credit Facility to $15,000,000.00; and
WHEREAS,
the Lender is willing to comply with such request, upon and subject to the terms
and conditions hereinafter set forth; and
NOW,
THEREFORE, the Lender and the Borrower hereby agree as follows:
1. Definitions. All
capitalized terms used herein, unless otherwise defined herein, shall have the
same meanings as those ascribed to them in the Credit Agreement.
2. Representations and
Warranties. As an essential inducement to the Lender to execute this
Amendment, the Borrower hereby repeats, reaffirms and incorporates herein by
reference all of the representations and warranties contained in Section 3 of
the Credit Agreement.
3. Amendment of Loan
Documents. The Loan Documents are hereby amended as follows:
(a) The
“Maximum Commitment” of the Credit Facility, as that term is used in
that
certain Note dated September 2, 2009, shall be FIFTEEN MILLION AND NO/100
DOLLARS
($15,000,000.00).
(b) The
Pledgor shall increase the Pledgor’s certificate of deposit, described in
that
certain Pledge and Security Agreement dated September 2, 2009 (the “Pledge”) to
FIFTEEN MILLION
AND NO/100 DOLLARS ($15,000,000.00).
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(c) As used
in the Credit Agreement and the other Loan Documents, the term “Note” shall mean
the promissory note described in Section 1 of the Credit Agreement, as amended
by this Amendment.
(d) As used
in the Credit Agreement and the other Loan Documents, the term “Pledge and
Security Agreement” shall mean the pledge and security agreement described in
Section 1 of the Credit Agreement, as amended by this Amendment to increase the
certificate of deposit pledged thereunder to $15,000,000.00.
4. Delivery of Related
Documents. The Borrower shall deliver to the Lender on or before
December 31, 2009 the following documents, all of which shall be in
form and substance satisfactory to the Lender and its counsel:
(a) Certificate
of Secretary of Pacific Office Properties Trust, Inc.
(b) Certificate
of Secretary of Xxxxxxx Equities Corp.
5. Conformance. The Loan
Documents are hereby amended to conform with this Amendment, but in all other
respects such provisions are to be and continue in full force and
effect.
6.
Continuance of
Security. The performance of the obligations of the Borrower under the
Loan Documents, as herein amended, shall be fully secured by and entitled to the
benefits of all of the security documents agreements described in the Credit
Agreement and the other Loan Documents, and any modifications, extensions,
renewals or replacements thereof.
7.
Continuing
Pledge. Pledgor hereby consents to the foregoing amendments, reaffirms
its obligations under the Pledge, as amended by this Amendment, and covenants
that the execution and delivery of this Amendment shall not in any way affect,
impair or diminish its obligations under the Pledge, except for the increase of
the principal amount of the certificate of deposit pledged thereunder to
$15,000,000.00.
8.
No Offsets. As
of the date hereof, the Borrower has no claims, defenses or offsets against the
Lender or against the Borrower’s obligations under the “Loan Documents”, as
herein amended, whether in connection with the negotiations for or closing of
the Credit Facility, of this Amendment, or otherwise, and if any such claims,
defenses or offsets exist, they are hereby irrevocably waived and released. As
of the date hereof, the Pledgor has no claims, defenses or offsets against the
Lender or against the Pledgor’s obligations under the Pledge, whether in
connection with the negotiations for or closing of the Credit Facility, of this
Amendment, or otherwise, and if any such claims, defenses or offsets exist, they
are hereby irrevocably waived and released.
9.
No Waiver. This
Amendment is made on the express condition that nothing herein contained shall
in any way be construed as affecting, impairing or waiving any rights of the
Lender under any of the Loan Documents, as herein amended.
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10. Entire Agreement.
This Amendment incorporates all of the agreements between the parties relating
to the amendment of the Loan Documents and supersedes all other prior or
concurrent oral or written letters, agreements or understandings relating to
such amendment. This Amendment shall constitute and be deemed amendments to any
inconsistent provisions of any commitment letter issued by the Lender to the
Borrower in connection with the amendment to the Loan Documents, and, upon the
execution of this Amendment, any such commitment letter shall be deemed
superceded by this Amendment and cancelled.
11. Headings. The
headings of paragraphs and subparagraphs herein are inserted only for
convenience and reference, and shall in no way define, limit or describe the
scope or intent of any provisions of this Amendment.
12. Governing Law;
Severability. This Amendment is executed and delivered, and shall be
construed and enforced, in accordance with and governed by the laws of the State
of Hawaii. If any provision of this Amendment is held to be invalid or
unenforceable, the validity or enforceability of the other provisions of this
Amendment shall remain unaffected.
13. Submission to Jurisdiction;
Waiver of Jury Trial. The Borrower hereby irrevocably and unconditionally
submits, but only for the purposes of any action or proceeding which the Lender
may bring to enforce any of the Loan Documents, as amended herein, to the
jurisdiction of the courts of the State of Hawaii and the United States District
Court for the District of Hawaii. Such submission to such jurisdiction shall not
prevent the Lender from commencing any such action or proceeding in any other
court having jurisdiction. The Borrower hereby knowingly, voluntarily and
intentionally waives any right it may have to a jury trial in any legal
proceeding which may be hereinafter instituted by the Lender or the Borrower to
assert any of their respective claims arising out of or relating to any of the
Loan Documents or any other agreement, instrument or document contemplated
thereby. In such event, the Borrower, at the request of the Lender, shall cause
its attorney of record to effectuate such waiver in compliance with the Hawaii
Rules of Civil Procedure, as the same may be amended from time to
time.
14. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
instrument, and in making proof of this Amendment, it shall not be necessary to
produce or account for more than one such counterpart.
15. Expenses. The
Borrower shall pay all expenses incurred by the Lender in negotiations for and
documentation of this Amendment and the satisfaction of the conditions thereof,
including, but not limited to, fees and expenses of legal counsel for the Lender
(and each participant in, or purchaser of, the Credit Facility), and any other
costs incurred by the Lender in connection with any of the matters described in
this Amendment.
16. Binding Effect. This
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that Borrower shall not
assign this Amendment or any of the rights, duties or obligations of Borrower
hereunder without the prior written consent of Lender.
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17. Compliance with OFAC
Restrictions. The Lender and the Borrower are obligated to comply with
the laws and regulations administered by the United States Office of Foreign
Assets Control ("OFAC"), referred to as "OFAC Restrictions". In order to comply
with OFAC Restrictions, the Lender may be required to temporarily suspend
processing a transaction, which may result in delayed availability of funds, or
may be prohibited from closing a transaction altogether. The Borrower agrees to
the foregoing, and further agrees that if the Lender is required by applicable
OFAC Restrictions to suspend processing a transaction, or is prohibited from by
applicable OFAC Restrictions from closing a transaction, the Lender will not be
liable for any damages of any kind or nature (including, without limitation,
actual, consequential, special, incidental, punitive, or indirect damages,
whether arising out of claims for "lender liability" or any other cause), which
the Borrower may suffer or incur in connection with such suspension of, or
failure to close, a transaction.
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment the day and
year first above written.
FIRST
HAWAIIAN BANK
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By
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/s/ Xxxxx X.X. Xxxxx |
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Its
Vice President
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Lender
PACIFIC
OFFICE PROPERTIES, L.P. a Delaware limited partnership
By
Pacific Office Properties Trust, Inc. a Maryland corporation
Its
General Partner
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By
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/s/ Xxxxxxxx X Xxxx |
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Its
Chief Financial Officer
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Borrower
XXXXXXX
EQUITIES L.P.
By
Xxxxxxx Equities Corp.
Its
General Partner
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By
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/s/ Xxxxxxxx X. Xxxx |
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Its
Secretary
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“Pledgor”