EX-10.A.(XXXVI) 7 a2018q1exhibit101xxxvi.htm EXHIBIT 10.A.(XXXVI) Exhibit

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made effective as of November 22, 2017 (the “Effective Date”), by and among HOKULEI VILLAGE, LLC, a Delaware limited liability company (with respect to the Hokulei Land and other Property directly related thereto, “Hokulei Seller”), TRC LAULANI VILLAGE, LLC, a Delaware limited liability company (with respect to the Laulani Land and other Property directly related thereto, “Laulani Seller”), LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company (with respect to the Pad G Land and other Property directly related thereto, “Pad G Seller”) and PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company (with respect to the Puunene Land and other Property directly related thereto, “Puunene Seller”; together with Hokulei Seller, Laulani Seller and Pad G Seller, Seller”), and A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company (“Purchaser”). In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:
1.PURCHASE AND SALE. Subject to and in accordance with the terms and conditions set forth in this Agreement, Purchaser shall purchase from Seller and Seller shall sell to Purchaser, all of Seller’s right, title and interest in and to the following property (collectively, the “Property”):
1.1    those certain parcels of real estate located at (i) 4454 Nuhoe Street, Lihue, Kauai, Hawaii, commonly known as Hokulei Village, (ii) 91 – 1119 Keaunui Drive, Ewa Beach, Oahu, Hawaii, commonly known as Laulani Village, (iii) Lot 7 of the "Laulani Ewa Subdivision", Ewa Beach, Oahu, Hawaii, commonly known as Pad G and (iv) 100 Ho’okele Street, Kahului, Maui, Hawaii, commonly known as Puunene Shopping Center and legally described in attached Exhibits A-1, A-2, A-3 and A-4, respectively, together with any and all appurtenances, hereditaments, privileges, development rights and easements belonging thereto (“Hokulei Land”, “Laulani Land”, “Pad G Land” and “Puunene Land”, respectively, and, collectively, the “Land”);
1.2    all buildings, structures, improvements, and fixtures located on the Land and owned by Seller (collectively, the “Improvements”; the Land and the Improvements are collectively referred to as the “Real Property”);
1.3    all leases, occupancy agreements and license agreements affecting the Real Property or any part thereof, as of the Effective Date, and all guarantees thereof, together with any New Leases (as hereinafter defined) which do not require Purchaser’s consent or to which Purchaser has consented (or is deemed to have consented) pursuant to Section 9.3.1 (the “Leases”);
1.4    all furniture, furnishings, equipment, machinery and other tangible personal property, if any, owned by Seller, located in or on the Real Property and used solely in connection therewith, including but not limited to the tangible personal property described in the attached Schedule 1.4 (the “Tangible Personal Property”);

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1.5    all maintenance, service, and other like contracts and agreements with respect to the ownership and operation of the Real Property or any portion thereof (excluding contracts affecting other properties in addition to the Real Property), to be listed on Schedules provided by Seller within seven (7) days after the Effective Date, together with any new contracts which do not require Purchaser’s consent or to which Purchaser consented (or is deemed to have consented) pursuant to Section 9.3.2 (the “Service Contracts”), except as expressly set forth to the contrary in this Agreement;
1.6    all intangible property, permits, licenses, approvals, guarantees and warranties pertaining exclusively to the Real Property and in each case used solely in connection with the ownership and operation of the Real Property (the “Intangibles”); and
1.7    those documents set forth on Schedule 1.7 attached hereto or listed on an amended Schedule 1.7 prepared by Seller within seven (7) days of the Effective Date (the “Other Agreements”).
Those documents referenced in Sections 1.3, 1.5 and 1.7 are collectively referred to in this Agreement as the “Property Agreements”. Prior to the date hereof, Seller has delivered or made available to Purchaser copies of the Property Agreements in Seller’s possession.
Notwithstanding anything set forth herein to the contrary, the term “Property” expressly excludes (i) all property owned by tenants or other users or occupants of the Real Property, (ii) all rights with respect to any refund of taxes applicable to any period prior to the Closing Date (as defined in Section 4 below), (iii) all rights to any insurance proceeds or settlements for events occurring prior to Closing (subject to Section 5 below), (iv) all of Seller’s interest in cash, securities, lender deposits and reserves and accounts receivable (except to the extent Seller receives proration therefor), (v) financial data with respect to the Property for the period prior to the Closing (subject to Section 4.5 below), (vi) any promissory notes relating to any Lease in favor of Seller for accounts receivable arising solely prior to the Effective Date, (vii) the names “Terramar”, “TRC”, “TRC Retail”, or “Terramar Retail Centers, LLC”, and any derivation or combination thereof, and (viii) the Excluded Documents (as hereinafter defined), and Seller shall retain all of the property and rights referenced in the foregoing clauses (ii) through (viii). The property referenced in the foregoing clauses (i) through (viii) is referred to as the “Excluded Property.”
2.    PURCHASE PRICE. The total consideration to be paid by Purchaser to Seller for the Property is Two Hundred Sixty-Two Million Five Hundred Thousand and No/100 Dollars ($262,500,000.00) (the “Purchase Price”), plus or minus prorations and adjustments as hereinafter set forth. The allocation of the Purchase Price among the components of the Real Property is set forth on Schedule 2.1 Prior to Closing the parties shall amend this Agreement to reduce the Purchase Price by the amount of the credits set forth on Schedule 2.2 (Leasing & Construction Credits) and Section 9.4, as they may be adjusted pursuant to Sections 4.3.8 and 9.4, and the Schedule 2.1 allocations shall be adjusted accordingly. For the avoidance of doubt, after reducing the Purchase Price as contemplated in the preceding sentence, the credits accounting for such reductions shall no longer be applicable.


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2.1    Earnest Money. Within two (2) business days after the Effective Date, Purchaser shall deliver to Title Guaranty Escrow Services, Inc., attention Jeremy Trueblood, as escrow agent for Title Insurer (as hereinafter defined) (“Escrow Agent”), an amount equal to One Million and No/100 Dollars ($1,000,000.00) in immediately available funds (the “Initial Earnest Money”). If Purchaser delivers Notice of Acceptance (as hereinafter defined) pursuant to Section 8.1 below, then Purchaser shall deliver to Escrow Agent an additional amount equal to One Million Six Hundred Twenty-Five Thousand and No/100 Dollars ($1,625,000.00) in immediately available funds (the “Additional Earnest Money”) within two (2) business day after the expiration of the Due Diligence Period (as defined in Section 8.1), so that the total earnest money deposit held by Escrow Agent (exclusive of interest earned thereon) shall equal Two Million Six Hundred Twenty-Five Thousand and No/100 Dollars ($2,625,000.00). The Initial Earnest Money and the Additional Earnest Money, to the extent deposited, together with any interest earned thereon and net of investment costs, are referred to in this Agreement as the “Earnest Money.” The Earnest Money shall be invested as Purchaser directs. Any and all interest earned on the Earnest Money shall be reported to Purchaser’s federal tax identification number. Except as expressly set forth herein to the contrary, the Earnest Money shall become nonrefundable upon the expiration of the Due Diligence Period if Purchaser delivers Notice of Acceptance pursuant to Section 8.1 on or before the expiration of the Due Diligence Period. Notwithstanding the prior sentence, if the transaction fails to close because of Seller’s default under this Agreement and Purchaser elects to terminate this Agreement pursuant to Section 7.1, or if the transaction fails to close due to failure of a condition precedent to Purchaser’s obligations to close, then the Earnest Money shall be returned to Purchaser. If the transaction closes in accordance with the terms of this Agreement, then Escrow Agent shall deliver the Earnest Money to Seller at Closing as payment toward the Purchase Price. The parties shall promptly direct Escrow Agent to deliver the Earnest Money in accordance with this Agreement.
2.2    Cash Balance. At least two (2) business days before Closing, Purchaser shall deposit with Escrow Agent the Purchase Price in immediately available funds, less the Earnest Money, plus or minus the prorations described in this Agreement (such amount, as adjusted, being referred to as the “Cash Balance”).
2.3    Independent Consideration. Notwithstanding anything to the contrary contained in this Agreement, if this Agreement is terminated for any reason which entitles Purchaser to the return of the Earnest Money, then the sum of One Hundred and No/100 Dollars ($100.00) of such Earnest Money (the “Independent Contract Consideration”) shall be paid to Seller from the Earnest Money, which amount Seller and Purchaser have bargained for and agreed to as independent and sufficient consideration for Seller’s execution and delivery of this Agreement. The Independent Contract Consideration is non-refundable and separate consideration from any other payment or deposit required by this Agreement, and Seller shall retain the Independent Contract Consideration upon any termination of this Agreement notwithstanding any other provision of this Agreement to the contrary.


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3.    EVIDENCE OF TITLE. Seller agrees to furnish Purchaser with good and marketable title to the Property in accordance with the terms of this Agreement, subject only to the Permitted Exceptions. Notwithstanding the foregoing, Seller shall be obligated to at Closing discharge any mortgages, mechanics and materialmen’s liens, and other monetary liens of any kind affecting the Property, except for (i) the lien of real property taxes not then due, and (ii) the recorded Loan Documents affecting the Laulani Land to be assumed by Purchaser as provided in Section 11.20. Purchaser’s obligation to close this transaction shall be subject to the irrevocable commitment by Title Guaranty of Hawaii, Inc. and Land Services USA, Inc., as agents for Chicago Title Insurance Company (collectively, the “Title Insurer”) to issue to Purchaser at Closing Form 2006 extended ALTA Owners Protection Policies of Title Insurance for each of the Hokulei Land, the Laulani Land, the Pad G Land and the Puunene Land in the respective amounts set forth in Schedule 2.1, subject only to the Permitted Exceptions (as defined in Section 3.2) and with endorsements against mechanics and materialmen’s liens and such other endorsements as Purchaser may elect (individually and collectively, the “Title Policy”); provided, however, the failure of Title Insurer to irrevocably commit to issue the Title Policy shall not be a Seller default hereunder. Seller shall at its expense provide the Title Insurer with such affidavits, agreements and surveyor certifications customarily required or reasonably requested by the Title Insurer in order to issue the Title Policy; provided, however, the failure of Seller to provide such items shall not be a Seller default hereunder.
3.1    Title and Survey Review. Purchaser hereby acknowledges that Seller has delivered to Purchaser (a) the title commitments listed on Exhibits F-1 through F-4 attached hereto (the “Preliminary Title Commitments”); and (b) the most recent existing surveys of the Real Property in Seller’s possession, if any (the “Surveys”). Seller has ordered updates of the Surveys with respect to the Real Property (the “Updated Surveys”). Seller shall cause copies of the Updated Surveys to be delivered to Purchaser when available, and, subject to Section 3.2, Purchaser shall thereafter coordinate directly with the surveyor(s) to address any comments or requested changes Purchaser has to the Updated Surveys.
3.2    Permitted Exceptions. No later than December 7, 2017, Purchaser shall notify Seller in writing of any matters shown on the Preliminary Title Commitments (or updates thereto) and the Updated Surveys to which Purchaser objects (the "Disapproved Title and Survey Exceptions"). All matters shown on the Preliminary Title Commitments and the Updated Surveys to which Purchaser does not so object shall be deemed “Permitted Exceptions”. No later than five (5) business days following Seller's receipt of Purchaser's Disapproved Title and Survey Exceptions, Seller shall inform Purchaser in writing as to whether Seller will cause the Disapproved Title and Survey Exceptions to be removed from title to the Property prior to the Closing. If Seller fails to deliver its response within such period, Seller shall be deemed to have elected not to eliminate the Disapproved Title and Survey Exceptions. If Seller elects (or is deemed to have elected) not to eliminate any of the Disapproved Title and Survey Exceptions, then Purchaser may at any time prior to the end of the Due Diligence Period elect to terminate this Agreement. If Purchaser does not elect to terminate this Agreement and proceeds with the transaction, then Purchaser shall be deemed to have approved or waived all Disapproved Title and Survey Exceptions that Seller has elected not to eliminate or that Purchaser did not object to and such exceptions shall be Permitted Exceptions.


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3.3    If after the date of Purchaser’s notice of Disapproved Title and Survey Exceptions any new title matter of record or new survey matter first arises as identified on any updates or amendments to the Title Commitments or Updated Surveys, respectively ("New Title and Survey Exceptions"), Purchaser may request in writing that Seller remove such New Title and Survey Exceptions from title to the Property prior to the Closing provided however that any request to remove New Title and Survey Exceptions must be made within three (3) business days of Purchaser’s discovery of the New Title and Survey Exception. Seller shall have three (3) business days following Seller's receipt of Purchaser's request to give Purchaser written notice as to whether any of the New Title and Survey Exceptions will be removed from title to the Property prior to the Closing. If Seller fails to deliver its response within such period, Seller shall be deemed to have elected not to eliminate the New Title and Survey Exceptions. This Agreement shall terminate upon Purchaser's written notice to Seller given within three (3) business days following Purchaser's receipt of Seller's response regarding any New Title Exceptions that Seller elects not to eliminate, or the date of Seller’s deemed election not to eliminate them. If Purchaser does not provide written notice of termination within this time period, then Purchaser shall be deemed to have elected to proceed with the transaction and to have approved or waived all New Title and Survey Exceptions that Seller has elected not to eliminate and such exceptions shall be Permitted Exceptions. If a New Title or Survey Exception first arises after the Due Diligence Period, the Closing Date shall be extended by the number of days (if any) necessary to allow the foregoing objection and response process to be concluded no later than three (3) business days prior to the Closing Date.
4.    CLOSING. The closing of the transaction contemplated by this Agreement (the “Closing”) shall occur at 8:01 a.m., Hawaii-Aleutian Standard Time, on January 18, 2018, or on such other date as the parties may hereafter agree (such day being sometimes referred to as the “Closing Date”), through escrow at the office of Escrow Agent located at 235 Queen Street, Honolulu, Hawaii 96813.
4.1    Seller’s Closing Deliveries. No later than two (2) business days prior to the Closing Date, Seller shall execute or cause to be executed (as necessary and as applicable to the entity comprising Seller and/or the sale of such entity’s right, title and interest in and to the Property as contemplated by this Agreement) and deliver to Purchaser (either through escrow or as otherwise provided below) each of the following:
(a)    limited warranty deeds for each of the Hokulei Land, the Laulani Land, the Pad G Land and the Puunene Land, and the Improvements thereon (individually and collectively the “Deed”), substantially in the form of Exhibit G attached hereto, conveying each such portion of the Real Property to Purchaser or to a Purchaser’s Designee (as hereinafter defined), duly executed by Seller;
(b)    counterparts of (i) an Assignment and Assumption of Leases for each of the Hokulei Land, the Laulani Land, the Pad G Land and the Puunene Land in the form of Exhibit R attached hereto (individually and collectively the “Assignment of Leases”) in favor of Purchaser or Purchaser’s Designee, and (ii)


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with respect to any of the Leases for which there is a recorded memorandum or short form, a recordable memorandum of assignment;
(c)    counterparts of a General Assignment and Assumption of Seller’s interest in the Service Contracts, the Intangibles and the Other Agreements for each of the Hokulei Land, the Laulani Land, the Pad G Land and the Puunene Land in the form of Exhibit S attached hereto (the “General Assignment”) in favor of Purchaser or Purchaser’s Designee, together with any counterparty consents that are required for such assignments; provided, however, Seller’s failure to deliver any such consents shall not be a Seller default hereunder;
(d)    a bill of sale for each of the Hokulei Land, the Laulani Land, the Pad G Land and the Puunene Land in the form of Exhibit O attached hereto, conveying the Tangible Personal Property to Purchaser or Purchaser’s Designee;
(e)    one original notice letter to each tenant, substantially in the form attached hereto as Exhibit H;
(f)    one original notice letter to each Service Contract vendor, substantially in the form attached hereto as Exhibit I;
(g)    Seller’s certificate of non-foreign status, in the form attached hereto as Exhibit J;
(h)    counterparts of the Closing Statement (as defined in Section 4.3 below);
(i)    such transfer and/or conveyance tax forms for each Deed as are required by law, including without limitation Hawaii Conveyance Tax Certificate Form P-64A in a form reasonably acceptable to Seller and Purchaser (“Conveyance Tax Certificates”);
(j)    to the extent not addressed in clauses (e) or (f), above, one original notice letter to each party to any Property Agreement, substantially in the form attached hereto as Exhibit Q;
(k)    an affidavit of Seller as to debts and liens in form mutually acceptable to Seller and the Title Insurer which shall permit the Title Insurer to issue the Title Policy subject only to the Permitted Exceptions;
(l)    an executed Hawaii Withholding Tax Return For Dispositions By Nonresident Persons of Hawaii Real Property Interests Form N-288 and Form N-288B, if not exempt;
(m)    a Report of Bulk Sale and Transfer, State of Hawaii form G-8A, for Seller and/or Terramar Retail Centers, LLC, as applicable, bearing the Certification of the Director of the State Department of Taxation dated no more than ten (10)


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business days prior to Closing that such reports have been filed and that all taxes, penalties and interest payable by with respect to Seller’s business at or income from the Property have been paid;
(n)    counterparts of a recordable Assignment and Assumption of Declarant Rights for each of the Hokulei Land, the Laulani Land, the Pad G Land and the Puunene Land in the form of Exhibit V attached hereto (individually and collectively the “Assignment of Declarant Rights”) assigning to Purchaser or Purchaser’s Designee all of Seller’s rights under the recorded declarations, reciprocal easement agreements and other documents listed on Schedule 4.1(n);
(o)    the Guaranty in the form of Exhibit W attached hereto, duly executed by the Guarantor as provided in Section 10.2;
(p)    such documents as may be required to effectuate the Loan Assumption;
(q)     such releases, amendments, terminations or other documents required to remove any Disapproved Title and Survey Exception that Seller agreed to remove pursuant to Section 3;
(r)    such other documents or instruments required hereunder or reasonably necessary to effectuate the Closing in accordance with this Agreement; and
(s)    such authorizing documents of Seller as shall be reasonably required by the Title Insurer or Escrow Agent to evidence Seller’s authority to consummate the transactions contemplated by this Agreement.
The Closing Statement may be signed in .PDF counterparts on the Closing Date. Within five (5) business days following the Closing Date, to the extent available, Seller shall deliver to Purchaser the original (or copies, if Seller does not have originals) Property Agreements, and all plans and specifications, licenses and permits pertaining to the Property (all of which, to the extent at the Property, shall be left at the Property, and if not at the Property, shall be delivered to such address as Purchaser may elect).
4.2    Purchaser’s Closing Deliveries. No later than two (2) business days prior to the Closing Date, Purchaser or the applicable Purchaser’s Designee shall execute or cause to be executed (as necessary) and deliver or cause to be delivered to Seller each of the following:
(a)    counterparts of the Assignment of Leases and any memoranda thereof;
(b)    counterparts of the General Assignment;
(c)    counterparts of the Closing Statement;


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(d)    counterparts of the Deed;
(e)    counterparts of the Assignment of Declarant Rights;
(f)    the Conveyance Tax Certificates;
(g)    the Cash Balance;
(h)    such documents as may be required to effectuate the Loan Assumption;
(i)     such other documents or instruments required hereunder or reasonably necessary to effectuate the Closing in accordance with this Agreement; and
(j)    such evidence of Purchaser’s due formation, valid existence, good standing, power, authority, authorization and due execution and delivery as Seller, Title Insurer or Escrow Agent may reasonably request.
4.3    Closing Prorations and Adjustments. Seller shall prepare a statement of the prorations and adjustments required by this Agreement (the “Closing Statement”), and submit it to Purchaser for approval at least ten (10) business days prior to the Closing Date. Except as otherwise provided below, the items listed below are to be equitably prorated or adjusted as of 12:01 a.m. local time at the Real Property on the Closing Date, it being understood that for purposes of prorations and adjustments, Purchaser shall be deemed the owner of the Property on such day and Seller shall be deemed the owner of the Property prior to such day. The provisions of this Section 4.3 that contemplate post-Closing adjustments shall survive Closing for the applicable period of time set forth in this Section 4.3.
4.3.1    Real estate and personal property taxes and assessments and other state, county and municipal taxes (other than conveyance or other transfer taxes), charges and assessments, as well as any assessments by private covenant constituting a lien or charge on the Property (collectively, “Real Estate Taxes”) shall be prorated at Closing for the then-current fiscal year of the applicable taxing authority in which the Closing Date occurs (the “Current Tax Year”), such that Seller shall be responsible for all Real Estate Taxes that are attributable to the period prior to the Closing Date and Purchaser shall be responsible for all Real Estate Taxes that are attributable to the period from and after the Closing Date. Notwithstanding the foregoing, in the event and to the extent that the tenants under the Leases have paid, shall pay or are required to pay any portion of the Real Estate Taxes directly to the relevant taxing authority or authorities, such portion of the Real Estate Taxes shall not be prorated. Notwithstanding anything contained herein, any refunds or rebates of Real Estate Taxes which accrued before the Closing Date shall remain the property of Seller, and Seller shall have the right to pursue any appeals filed prior to the Effective Date of Real Estate Taxes attributable to Seller’s period of ownership of


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the Property (including any appeal of Real Estate Taxes for the year in which Closing occurs) with respect to tax assessments for the Property. Seller may also file appeals for the 2018-2019 Real Property Tax year if the deadlines for such appeals fall before the Closing Date, provided that upon Closing Seller shall upon Purchaser’s request either dismiss such appeals or cooperate with Purchaser’s substitution for Seller in the appeals. Purchaser shall cooperate with Seller in connection with any such appeal at no out of pocket cost to Purchaser. If Seller is successful in any such tax appeal related to the fiscal tax period in which Closing occurs, any rebates or refunds shall be apportioned between the parties in the same proportion as the proration of Real Estate Taxes set forth on the Closing Statement executed by the parties at Closing. Seller will also calculate and refund to the Tenants’ accounts credits and charges if and where applicable. Seller will provide copies of this calculation, along with copies of the statements, to Purchaser, along with any balance due to Purchaser. If Purchaser is successful in any appeal of Real Estate Taxes which accrued during Seller’s period of ownership of the Property, any rebates or refunds shall be apportioned between the parties in the same proportion as the proration of the Real Estate Taxes set forth on the Closing Statement executed by the parties at Closing. Purchaser will also calculate and apply credits and charges to Tenant’s accounts, where applicable. Purchaser will provide copies of this calculation, along with copies of the statements, to Seller, together with any balance due to Seller. Either party that is successful in any appeal of Real Estate Taxes contemplated by this Section 4.3.1 shall be able to deduct its actual, documented, out-of-pocket costs paid to non-affiliated third parties in connection with the tax appeal from the rebates or refunds received before apportionment of the balance thereof. The provisions of this Section 4.3.1 shall survive the Closing.
4.3.2    Rent.
(a)    Base Rent. Except for Percentage Rents covered by Section 4.3.2(b), all “minimum” or “base” rent, common area maintenance (“CAM”), tenant reimburseables or similar charges, and any other amounts or charges payable by tenants under the Leases for the calendar month in which the Closing occurs shall be prorated on the basis of the number of days of such month prior to the Closing Date (which shall be allocated to Seller) and from and after the Closing Date (which shall be allocated to Purchaser). However, there shall be no proration at Closing of any rent which is delinquent as of the Closing Date, which shall be handled as provided in Section 4.3.2(c).
(b)    Percentage Rent. Overage or percentage rents (“Percentage Rents”) which are payable with respect to any period ending prior to the Closing Date or which have been accrued prior to the Closing Date shall be apportioned as soon as reasonably practical (and in any event 30 days after) Closing, so that the amount thereof under each of the Leases to which Seller shall be entitled, as finally determined, shall be the entire amount thereof with respect to any fiscal period ending prior to the Closing Date, and, for the applicable fiscal period in which Closing


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occurs, an amount which bears the same ratio to the total Percentage Rents as the number of days in such fiscal period which have elapsed prior to the Closing Date bears to the total number of days in such fiscal period. At the Closing, Seller shall deliver to Purchaser a schedule setting forth in reasonable detail the amount of Percentage Rent collected for the portion of the applicable fiscal period through the Closing Date. Following the Closing, Purchaser shall use reasonable efforts to collect any Percentage Rents which belong to Seller, and shall remit the same to Seller promptly upon their receipt, to the extent not credited to Seller at Closing, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect delinquent rents. All Percentage Rents collected by Seller or Purchaser with respect to the fiscal period in which Closing occurs shall be applied in the same ratio as Seller and Purchaser are entitled pursuant to this Section 4.3.2(b). Upon Seller’s request, Purchaser shall promptly deliver to Seller a copy of each bill relating to Percentage Rents submitted to tenants. The provisions of this Section 4.3.2(b) shall survive the Closing.
(c)     Tenant Delinquencies. Rent and other charges under the Leases unpaid and delinquent as of Closing that are collected by Seller and Purchaser after the date of Closing shall be delivered as follows: (a) if Seller collects any unpaid or delinquent rent for the Property, Seller shall, within fifteen (15) days after the receipt thereof, deliver to Purchaser any such rent which Purchaser is entitled to hereunder relating to the date of Closing and any period thereafter, and (b) if Purchaser collects any unpaid or delinquent rent from the Property, Purchaser shall, within fifteen (15) days after the receipt thereof, deliver to Seller any such rent which Seller is entitled to hereunder relating to the period prior to the date of Closing. Seller and Purchaser agree that all rent received by Seller or Purchaser after the date of Closing shall be applied first to rentals due the month of Closing and then to delinquent rentals, if any, in inverse order of delinquency. Purchaser will make a good faith effort after Closing to collect all rents in the usual course of Purchaser’s operation of the Property, but Purchaser will not be obligated to institute any lawsuit or other collection procedures to collect delinquent rents. Except as set forth herein, from and after the Effective Date, Seller shall not apply any tenant security deposit under the Leases, or initiate any litigation to collect amounts payable by Tenants under the Leases, provided that Seller may initiate (a) lease termination and collection actions regarding the Russo’s lease at the Laulani Land (which shall not be assumed by Purchaser at Closing), (b) collection actions with respect to certain pre-Closing Tenant Reconciliations as provided in Section 4.4, and (c) apply the security deposit under the Fresh Press Hawaii LLC (Russo’s) Shopping Center Lease dated June 20, 2013 in accordance with such lease.
(d)    In the event that there shall be any amounts payable under any Leases other than those described in Sections 4.3.2(a), (b), or (c) that, although relating to a period prior to Closing, do not become due and payable until after Closing or that are paid prior to Closing but are subject to adjustment after Closing, then any rents or charges of such type received by Purchaser or its agents or Seller or its agents


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subsequent to Closing shall, to the extent applicable to a period extending through the Closing, be prorated between Seller and Purchaser as of Closing.
(e)    Notwithstanding anything contained herein to the contrary, Seller shall retain the right after Closing to take such actions as it reasonably elects to collect amounts owed to Seller which are attributable to Seller’s period of ownership of the Property under this Section 4.3.2 or under Section 4.4, provided that Seller shall not be entitled to seek termination of any Lease or otherwise evict any Tenant in connection with any action brought by Seller with respect thereto.
(f)    This Section 4.3.2 shall survive Closing.
4.3.3    Costs Relating to New Leases. Any tenant improvement costs, tenant inducement costs, leasing commissions, or other leasing costs (excluding legal fees) paid or payable pursuant to any New Lease entered into in accordance with Section 9.3.1 below with a tenant other than the tenants listed on Schedule 2.2 shall be the responsibility of Purchaser, and to the extent Seller has paid any of the same prior to Closing, Seller shall receive a credit therefor from Purchaser at or as soon as reasonably practicable (not more than 60 days) after the Closing.
4.3.4    Security Deposits; Utility Deposits. Attached hereto as Exhibit B is a rent roll reflecting any unapplied security deposits and other forms of security held by Seller or its agents under the Leases. Purchaser shall receive a credit at Closing in the amount of all cash security deposits under the Leases. In addition, Seller shall assign and deliver to Purchaser as soon as reasonably practicable (and not later than 60 days) following Closing any and all letters of credit and other instruments held by Seller as security deposits under Leases and cause such letters of credit to identify Purchaser as the named beneficiary thereunder (which obligation shall survive Closing). Seller shall receive a credit at Closing in the amount of all refundable cash or other deposits posted with utility companies servicing the Property which are duly assigned to Purchaser at Closing or which remain in place for the benefit of Purchaser.
4.3.5    Utilities. As soon as reasonably practicable (and in any event no later than sixty (60) days) after Closing, Seller and Purchaser shall prorate all water, electric, cable, internet, telephone and all other utility and fuel charges, fuel on hand (at cost plus sales tax), and any other payments to utility companies based on actual charges incurred.
4.3.6    Service Contracts. Except as set forth in Section 9.3.2, amounts due and any prepayments made under the Service Contracts shall be prorated as soon as reasonably practicable (and in any case within sixty (60) days) after Closing.
4.3.7    Fees Payable. License and permit fees, and similar fees and similar expenses of operation shall be prorated as soon as reasonably practicable (and in any case within sixty (60) days) after Closing.


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4.3.8    Tenant Inducement Costs and Leasing Commissions. Except as contemplated in Section 9.3.1, Purchaser shall be responsible for the payment of all of the following Tenant Inducement Costs (as hereinafter defined) and leasing commissions: (a) those set forth in a Lease existing as of November 15, 2017 which relate to any renewal or expansion of any Lease occurring after November 15, 2017; and (b) any others that are not Seller Commissions, including, without limitation, those set forth in Section 4.3.3 above (collectively, “Purchaser Commissions”). Seller shall be responsible for the payment of all of the following Tenant Inducement Costs and leasing commissions: (i) those specifically identified as Seller’s obligation on Schedule 2.2; and (ii) those set forth in a Lease existing as of November 15, 2017 which, pursuant to such Lease, are payable prior to the Closing Date or relate to the base term of any Lease or the renewal or expansion of any Lease that occurred prior to November 15, 2017 (collectively, “Seller Commissions”). For purposes hereof, the term “Tenant Inducement Costs” shall mean any payments required under a Lease to be paid by the landlord thereunder to or for the benefit of the tenant thereunder which is in the nature of a tenant inducement, including specifically, without limitation, tenant improvement costs, tenant allowances, costs of required landlord work under a lease, lease buyout costs (other than those accruing as a result of a buyout option executed by Purchaser after the Closing Date, which buyout costs shall be Purchaser’s sole and exclusive responsibility), conveyance tax, moving, design, refurbishment and club membership allowances, but specifically excluding legal fees or loss of income resulting from any free rental period (it being agreed that Seller shall bear the loss resulting from any free rental period until the date of Closing and that Purchaser shall bear such loss from and after the Closing Date). The agreed tentative credit to Purchaser with respect to Tenant Inducement Costs and leasing commissions is set forth in Schedule 2.2. Prior to Closing either party shall have the right to update Schedule 2.2 to reflect (a) any change to the scheduled Closing Date, (b) amounts credited to Purchaser on Schedule 2.2 that Seller actually paid prior to Closing, (c) adjustment to the Hawaii State Federal Credit Union credit shown on Schedule 2.2 based on the actual date of its lease execution and the date of substantial completion of the landlord’s work thereunder, and (d) adjustment to the Bedmart credit based on the date of substantial completion of the landlord’s work under its lease. The updated Schedule 2.2 shall be subject to the other party’s approval, which shall not be unreasonably withheld, and upon such approval the parties agree to reduce the Purchase Price to reflect the final amount of the credit. Seller hereby indemnifies, protects, defends and holds Purchaser and the Purchaser’s Designees, and their respective constituent members or partners, subsidiaries, parent companies and affiliates, and each of their respective directors, managers, trustees, officers, employees and agents, and each of their successors and assigns (the “Purchaser Indemnified Parties”), harmless from and against any and all claims, actions, suits, demands, losses, damages, liabilities, obligations, judgments, settlements, awards, penalties, costs or expenses (including reasonable attorneys’ fees and expenses) (collectively, “Losses”) that any or all of Purchaser or the Purchaser Indemnified Parties actually suffers and incurs as a result of the failure by Seller to timely pay or discharge any of the Seller Commissions (except to the


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extent Purchaser receives a credit therefore hereunder). Purchaser hereby indemnifies, protects, defends and holds Seller and the Seller Indemnified Parties harmless from and against all Losses that any or all of Seller, its constituent members or partners, subsidiaries, parent companies and affiliates, and each of their respective directors, managers, trustees, officers, employees and agents, and each of their successors and assigns (the “Seller Indemnified Parties”) actually suffers or incurs as a result of the failure by Purchaser to timely pay or discharge any of the Purchaser Commissions.
4.3.9    Other Agreements. Amounts, if any, payable by Seller or owed to Seller under the Other Agreements that are not credited to Purchaser at Closing pursuant to Section 9.4 shall be prorated at Closing.
4.3.10    Other Items. All other items customarily apportioned in connection with the sale of similar properties similarly located shall be prorated at Closing with an appropriate reproration as reasonably practicable (and in any event no later than sixty (60) days) following Closing.
To the extent any item of income or expense set forth in this Section 4.3 is expressly subject to final adjustment after Closing, then Seller and Purchaser shall make, and each shall be entitled to, an appropriate reproration to each such item promptly when accurate information becomes available. Any amounts due from one party to the other as a result of such reproration shall be paid promptly in cash to the party entitled thereto. Seller and Purchaser hereby covenant and agree to make available to each other for review such records as are necessary to complete such reprorations.
4.4    Tenant Reconciliation. Certain tenants under the Leases are currently paying Seller certain amounts (referred to herein as “Tenant Reimbursements”) based on Seller’s estimates for real estate taxes and assessments, common area maintenance, operating expenses and similar expenses (collectively, “Tenant Reimbursable Expenses”). Purchaser and Seller acknowledge and agree that Tenant Reimbursements which Seller collects from tenants at the Property for the period from January 1, 2017, through and including the date immediately prior to the Closing Date (“Seller’s Reconciliation Period”), may not yet have been reconciled with the tenants to the extent Seller’s recovery of such expenses from the tenants for such period exceeds, or is less than, the actual amount of such expenses for such period (the “Tenant Reconciliation”). In connection with the Tenant Reconciliation, the parties agree that (a) within a reasonable time after Closing, and in any event no later than 30 days after Closing, (i) Seller shall deliver to Purchaser the data reasonably supporting the Tenant Reimbursements that Seller collected from the tenants, if any, for Seller’s Reconciliation Period and the amount of Tenant Reimbursable Expenses actually paid by Seller during Seller’s Reconciliation Period and (ii) Seller shall prepare the final Tenant Reconciliation for the period from January 1, 2017 through and including December 31, 2017 in accordance with the terms and conditions of the applicable Leases (the “2017 Tenant Reconciliation”) and (b) in satisfaction of Tenant Reimbursements for the period after December 31, 2017, at Closing, Purchaser shall receive a credit in an amount


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equal to the Tenant Reimbursements Seller collects from the Property attributable to the period of time from the Closing Date to the end of the month in which Closing occurs. Upon completion of the 2017 Tenant Reconciliation Seller shall provide Purchaser with the results, and Seller shall credit or bill tenants, as applicable, for any amounts owed with respect to the Seller Reconciliation Period. If the Tenant Reconciliation for Seller’s Reconciliation Period shows that amounts collected from tenants during the Seller’s Reconciliation Period were more than the greater of (i) the amount of Tenant Reimbursable Expenses actually paid by Seller with respect to such period or (ii) the amount which Seller is entitled to recover under the terms of each Lease with respect to such period, as applicable, then Seller shall reimburse such tenant(s) to the extent of any over-payment of such Tenant Reimbursements actually received by Seller for such portion of Seller’s Reconciliation Period. If it is determined that any tenant has underpaid Seller for any portion of the Tenant Reimbursable Expenses due with respect to Seller’s Reconciliation Period, Seller shall have the sole right to collect the amount of any such deficiency from the applicable tenant(s) and Purchaser shall have no obligation to Seller with respect to such amounts. In connection with the foregoing, Seller shall be permitted to make and retain copies of all Leases and all billings concerning Tenant Reimbursements for such period(s). Seller and Purchaser covenant and agree to reasonably cooperate with the other (at no third party cost) for the purpose of collecting any amounts due from tenants or responding to any claim by tenants for reimbursement of Tenant Reimbursements. If Purchaser receives any payments to which Seller is entitled with respect to the Seller Reconciliation Period Purchaser shall promptly remit them to Seller. Except as set forth in clause (b) of this Section 4.4, Seller shall have no obligation with respect to Tenant Reconciliation for the period from January 1, 2018 through and including the Closing Date or thereafter. The agreements of Seller and Purchaser set forth in this Section 4.4 shall survive the Closing.
4.5    Purchaser Audit & Accounting Requirements. In order to facilitate Purchaser’s preparation and reporting of trailing audited financials regarding the Property, from and after the Effective Date, and continuing after Closing, Seller shall provide Purchaser and Purchaser’s auditors with reasonable access to the accounting records and accounting employees of Seller as reasonably necessary to complete all SEC reporting obligations of Purchaser. Records available to Purchaser and its auditors shall include without limitation: (a) Copies of any unaudited financial statements of Seller for the years 2014, 2015 and 2016, and through Closing; (b) Trial balances (as of year-end and interim periods) and statement of account for each property; (c) Check Registers for disbursement testing; and (d) Seller’s general ledger detail of operating expenses. This Section 4.5 shall survive Closing.
4.6    Code Section 1031 Exchange. Purchaser intends to structure the acquisition of the Property as a tax-deferred exchange under Section 1031 of the U.S. Internal Revenue Code (“Code”). Likewise, Seller may convey the Property to Purchaser as part of a tax-deferred exchange under Section 1031 of the Code. Either Seller or Purchaser may assign this Agreement to a qualified intermediary in order to facilitate a Code Section 1031 exchange transaction. Seller and Purchaser agree to cooperate with each other in effecting such transaction, including, without limitation, consenting to the assignment of this Agreement to a qualified intermediary, provided that any such exchange transaction, and the related


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documentation, shall: (i) not require the other party to execute any contract (other than as set forth herein), make any commitment, or incur any obligations, contingent or otherwise, to third parties which would expand the obligations beyond this Agreement, (ii) not delay the Closing or the transaction contemplated by this Agreement, or (iii) not include acquiring title to any other property. In connection with Purchaser’s Code Section 1031 exchange Purchaser may elect to replace the Earnest Money with an equal amount of Purchaser’s exchange proceeds. In connection with and without limiting the foregoing, Seller agrees to execute and deliver to Purchaser no later than five (5) days prior to Closing, the Assignment and Assumption Agreement attached hereto as Exhibit T and the Assignment and Release Agreement attached hereto as Exhibit U. This Section 4.6 shall survive Closing.
4.7    Reservation of Rights to Contest. Notwithstanding anything to the contrary contained in this Agreement, Seller reserves the right to meet with governmental officials and to contest any reassessment or assessment of the Property or any portion thereof and to attempt to obtain a refund for any taxes previously paid. Seller shall retain all rights with respect to any refund of taxes applicable to any period prior to the Closing Date (and if requested by Seller from time to time, Purchaser shall assign such right to Seller pursuant to such assignments as Seller may reasonably request) and, at Seller’s request, Purchaser shall reasonably cooperate in any such proceeding at no third party cost to Purchaser. The provisions of this Section 4.7 shall survive the Closing.
4.8    Transaction Costs. Purchaser shall pay for the following closing and other transaction costs: (a) all title insurance costs and fees related to extended coverage under the Title Policies, endorsements to the Title Policies, and loan policy (or policies) title insurance costs and fees, including any endorsements required by Purchaser’s lender or Lender (as hereinafter defined) with respect to the Loan Assumption (as hereinafter defined), if any, (b) all recording charges except recording charges to release or terminate encumbrances that are not Permitted Exceptions, (c) costs of the Updated Surveys and surveyor certifications; and (d) one half of all escrow fees. Seller shall pay: (i) all title insurance costs and fees related to standard coverage under the Title Policies, (ii) State of Hawaii conveyance tax with respect to this transaction, (iii) recording charges to release or terminate encumbrances that are not Permitted Exceptions, and (iv) one half of all escrow fees. Seller and Purchaser shall each be responsible for the fees of their respective attorneys and other professional advisors. Any other transaction costs for which responsibility is not expressly set forth in this Agreement shall be paid by the party incurring such costs.
5.    CASUALTY LOSS AND CONDEMNATION. If, prior to Closing, the Property, or any part thereof shall be condemned or destroyed or damaged by fire or other casualty, Seller shall promptly so notify Purchaser. In the event of a Material Loss (hereinafter defined), either Seller or Purchaser shall have the option to terminate this Agreement by giving notice to the other party within fifteen (15) days of the date of such condemnation, destruction or damage (but no later than the Closing), provided that if a Material Loss affects only the Hokulei Land and Improvements, the Puunene Land and Improvements, or the Laulani and Pad G Land and Improvements (each a “Shopping Center”), then Purchaser and Seller shall each have the option to (A) terminate this Agreement as to the affected portion of the Property only (“Excluded Property”), whereupon (i)


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this Agreement shall remain in effect as to the remainder of the Property, and (ii) the Purchase Price shall be reduced by the amount allocated to the Excluded Property on Schedule 2 or (B) terminate this Agreement in its entirety, whereupon the Earnest Money shall be returned to Purchaser and neither party shall have any further rights or obligations under this Agreement except as otherwise provided for in this Agreement. If the condemnation, destruction or damage does not result in a Material Loss, then Seller and Purchaser shall consummate the transaction contemplated by this Agreement notwithstanding such condemnation, destruction or damage. If the transaction contemplated by this Agreement is consummated, Purchaser shall be entitled to receive (and Seller shall assign or pay over to Purchaser) any condemnation proceeds or proceeds of insurance under all policies of insurance applicable to the destruction or damage of the Property (including rent loss insurance to the extent applicable to rents which were to have been paid after the Closing), together with a credit in the amount of any deductible (and if prior to Closing Seller has incurred any reasonable costs to repair any of the same, Seller shall receive a credit from Purchaser for such costs at Closing), and Seller shall, from and after Closing, execute and deliver to Purchaser all customary proofs of loss and other similar items. If either party elects to terminate this Agreement in its entirety in accordance with this Section 5, then the Earnest Money shall be returned to Purchaser and neither party shall have any further rights or obligations under this Agreement except as otherwise provided for in this Agreement. For purposes of this Section 5, a “Material Loss” means condemnation, damage or destruction of the Property as a whole (or as to any of the Shopping Centers) that is reasonably estimated to cost or be valued at (as the case may be) more than fifteen percent (15%) of the Purchase Price (or the portion of the Purchase Price allocated to the affected Shopping Center) or which causes tenants that pay, in the aggregate, fifteen percent (15%) or more of the aggregate base rent with respect to the Property (or the affected Shopping Center), to have the right to terminate their Leases (and such right has not been waived within thirty days of the date of the condemnation, damage or destruction). If the condemnation, damage or destruction occurs after the end of the Due Diligence Period, Purchaser shall have the option to extend the Closing Date by such reasonable period (not to exceed 15 days) necessary for determination of whether a Material Loss has occurred.
6.    BROKERAGE. Seller agrees to pay upon Closing (but not otherwise), pursuant to separate agreement, a brokerage commission due to Eastdil Secured (“Broker”), for services rendered in connection with the sale and purchase of the Property. Except for Broker, which shall be paid by Seller, Seller and Purchaser shall each indemnify and hold the other harmless from and against any and all claims of all other brokers and finders claiming by, through or under the indemnifying party and in any way related to the sale and purchase of the Property, this Agreement or otherwise, including, without limitation, attorneys’ fees and expenses incurred by the indemnified party in connection with any such claim.
7.    DEFAULT AND REMEDIES.
7.1    Purchaser’s Remedies. Notwithstanding anything to the contrary contained in this Agreement, if Closing does not occur due to a Seller default, then Purchaser may, as Purchaser’s sole and exclusive remedy hereunder and at Purchaser’s option, either (a) terminate this Agreement by written notice to Seller, Escrow Agent and Title Insurer given at any time after Seller shall have failed, for a period of five (5) days after written notice from Purchaser, to cure such default and, upon receipt of such notice of termination, Escrow


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Agent shall refund the Earnest Money to Purchaser and, if Seller’s default was the result of Seller’s intentional and willful act or failure to act, Seller shall reimburse Purchaser for all of its actual, documented, out-of-pocket costs paid to non-affiliated third parties in connection with this Agreement, up to a maximum aggregate amount of $300,000.00, whereupon neither party shall have any rights or obligations under this Agreement, except for those obligations which expressly survive Closing, or (b) upon notice to Seller not more than thirty (30) days after the originally scheduled Closing Date, and provided an action is filed within thirty (30) days thereafter, Purchaser may seek specific performance of Seller’s obligation to convey the Property, but not damages; provided, however, solely in the event that Purchaser elects to proceed under this clause (b) and, despite Purchaser’s commercially reasonable efforts related thereto, specific performance is not available, Purchaser may terminate this Agreement, whereupon (i) Escrow Agent shall refund the Earnest Money to Purchaser, (ii) if Seller’s default and/or the unavailability of specific performance was the result of Seller’s intentional and willful act or failure to act, Seller shall be obligated to pay to Purchaser an amount equal to Purchaser’s actual, documented, out-of-pocket costs paid to non-affiliated third parties in connection with this Agreement up to a maximum aggregate amount of $300,000.00, and (iii) neither party shall have any rights or obligations under this Agreement, except for those obligations which expressly survive Closing. Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above.
Purchaser acknowledges and agrees that the waivers, releases and other provisions contained in this Section 7.1 as well as elsewhere in this Agreement, were a material factor in Seller’s acceptance of the Purchase Price and agreement to the terms of this Agreement, and that Seller is unwilling to sell the Property to Purchaser unless Seller is released and indemnified as expressly set forth herein. The releases by Purchaser set forth in this Agreement include claims of which Purchaser is presently unaware or which Purchaser does not presently suspect to exist which, if known by Purchaser, would materially affect Purchaser’s release of Seller.
_____________        

(Purchaser’s Initials)    
Purchaser acknowledges and agrees that Purchaser, together with Purchaser’s counsel, has fully reviewed the disclaimers, waivers, releases, indemnities, etc., set forth in this Agreement, and understands the significance and effect thereof. The terms and conditions of this Section 7.1 will expressly survive the Closing, will not merge with the provisions of any closing documents, and will be incorporated into the Deed.
7.2    Seller’s Remedies. If the Closing does not occur by reason of any default by Purchaser, then Seller may, as its sole and exclusive remedy, terminate this Agreement by written notice to Purchaser, Escrow Agent and Title Insurer given at any time after Purchaser shall have failed, for a period of five (5) days after written notice from Seller, to cure such default, whereupon the Earnest Money shall be released to Seller as liquidated damages.


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Purchaser and Seller agree that it would be impractical and extremely difficult to estimate the damages suffered by Seller as a result of Purchaser’s failure to complete the purchase of the Property pursuant to this Agreement, and that under the circumstances existing as of the Effective Date, the liquidated damages provided for in this subsection represent a reasonable estimate of the damages which Seller will incur as a result of such failure; provided, however, that this provision will not waive or affect Purchaser’s indemnity obligations and Seller’s rights to those indemnity obligations under this Agreement. Therefore, Purchaser and Seller do hereby agree that a reasonable estimate of the total net detriment that Seller would suffer in the event that Purchaser defaults or fails to complete the purchase of the Property is an amount equal to the Earnest Money. This amount will be the full, agreed and liquidated damages for the breach of this agreement by Seller.
_____________            ____________

(Purchaser’s Initials)        (Seller’s Initials)
7.3    Post-Closing Remedies. After Closing, Seller and Purchaser shall, subject to the terms and conditions of this Agreement (including without limitation the provisions of Section 10 and Section 11.7 hereof), have such rights and remedies as are available at law or in equity, except that neither Seller nor Purchaser shall be entitled to recover from the other consequential or special damages.
8.    PURCHASER’S CONDITIONS PRECEDENT. Each of the conditions set forth in this Section 8 is a condition precedent to Purchaser’s obligation to close on its acquisition of the Property. If any of these conditions are not satisfied by the deadline applicable to it (or by Closing where no deadline is specified) or waived by Purchaser in its discretion, Seller shall not be in default under this Agreement and (i) Purchaser’s sole remedy related thereto shall be to terminate this Agreement by delivering notice to Seller on or before the applicable deadline (or by Closing where no deadline is specified), whereupon the Earnest Money shall be refunded to Purchaser and Seller and Purchaser shall have no further obligations under this Agreement except for obligations that expressly survive termination; and (ii) if Purchaser fails to timely deliver any such notice of termination, it shall be deemed to have waived the condition(s) precedent in question, whereupon the parties shall proceed to Closing.
8.1    Due Diligence Period. Purchaser shall have until 5:00 p.m., Hawaii-Aleutian Standard Time, on December 18, 2017 (the “Due Diligence Period”) within which to inspect the Property, obtain any necessary internal approvals to the transaction, and satisfy itself as to all matters relating to the Property, including, but not limited to, environmental, engineering, structural, financial, title and survey matters. Seller shall use good faith efforts to deliver or make available to Purchaser (which may be through an electronic data room) copies of any and all reports and agreements relating to the Property reasonably requested by Purchaser, including without limitation the documents listed on Schedule 8.1, to the extent in Seller’s possession or control (the “Documents” or “Seller’s Due Diligence Documents”); provided, however, that except as provided in Section 4.5 the Documents shall not include, and Seller shall have no obligation to make available to Purchaser, Seller’s


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company records, business plans, internal memoranda (including any internal evaluations of third-party reports concerning the Property), financial projections, budgets, appraisals, valuations, opinions of value, property condition reports, any agreements and documents which Seller is required to keep confidential pursuant to any agreement, accounting and tax records, communications between Seller and its attorneys, the work product of Seller’s attorneys, and similar proprietary, confidential or privileged information (collectively, the “Excluded Documents”). The Documents and any other due diligence materials that are provided by Seller to Purchaser are being furnished for informational purposes only and without representation or warranty as to the accuracy or completeness of such materials, except as expressly set forth in Sections 9.1.5 and 9.1.6. From and after the Effective Date Purchaser and its consultants shall have the right to inspect the Property in accordance with the terms of the parties’ Right of Entry Agreement dated October 24, 2017 (the “ROE”), which shall remain effect until Closing or earlier termination of this Agreement notwithstanding any language to the contrary contained in the ROE (including, without limitation, Section 2 of the ROE), subject to those provisions of the ROE which expressly survive termination of this Agreement or the ROE. If Purchaser determines (in its sole and absolute discretion) during the Due Diligence Period that the Property is acceptable to Purchaser, then prior to the end of the Due Diligence Period Purchaser may give Seller notice of acceptance of the Property (“Notice of Acceptance”), whereupon the parties shall proceed to close this transaction, on and subject to the terms and conditions of this Agreement. If Purchaser does not give Seller Notice of Acceptance prior to the end of the Due Diligence Period, Purchaser shall be deemed to have terminated this Agreement, whereupon Escrow Agent shall promptly refund the Earnest Money to Purchaser, and neither party shall have any further rights or obligations under this Agreement or the ROE except those which expressly survive termination of this Agreement or the ROE. Purchaser’s right of inspection pursuant to this Section 8.1 is and shall remain subject to the rights of tenants under the Leases and other occupants and users of the Property and Purchaser shall use reasonable efforts to minimize interference with tenants and Seller’s operation of the Property. No inspection shall be undertaken without forty-eight (48) hours’ prior notice to Seller. Seller or Seller’s representative shall have the right to be present at any or all inspections. Neither Purchaser nor its agents or representatives shall contact any tenants or any third party to any Property Agreement without the prior consent of Seller (which shall not be unreasonably withheld or conditioned) and Purchaser shall permit Seller to participate in any such contact.
8.2    Estoppel Certificates. As a condition to Purchaser’s obligation to close hereunder, Purchaser shall have received no later than January 12, 2018, estoppel certificates, dated no earlier than November 27, 2017, in accordance with Sections 8.2, 8.2.1, 8.2.2, 8.2.3 and 8.2.4 (“Tenant Estoppel Certificates”). The Tenant Estoppel Certificates delivered to the tenants for execution shall be in the form of Exhibit L attached hereto (the “Form Tenant Estoppel Certificate”), without modifications by the tenants materially contrary to the terms of the leases to which they pertain. In the event that Seller does not provide to Purchaser the required Tenant Estoppel Certificates when due, Seller shall not be in default hereunder but Purchaser may, by written notice to Seller given no later than two (2) business days before the Closing Date, either (A) elect not to purchase the Property, in which event the Earnest Money shall be returned to Purchaser, at which time this Agreement shall


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terminate and neither party shall have any further rights or obligations under this Agreement, except for those which expressly survive termination of this Agreement, or (B) elect to purchase the Property notwithstanding Seller’s inability to provide Tenant Estoppel Certificates, in which event Purchaser shall be deemed to have waived the condition contained in this Section 8.2. If Purchaser fails to deliver such written notice as described above, Purchaser shall be deemed to have elected item (B) above. If any Tenant Estoppel Certificate contains statements or allegations that a default or potential default exists on the part of Seller under the Lease in question or contains information inconsistent with any representations or warranties of Seller contained in this Agreement and Purchaser elects to close the purchase and sale transaction contemplated herein notwithstanding the existence of such statements, allegations or information, then such Tenant Estoppel Certificates shall be deemed acceptable for purposes of this Section, notwithstanding the existence of such allegations, statements or information, and Seller shall have no liability to Purchaser hereunder with respect to the existence of such allegations, statements or information (including without limitation any claim for breach of a representation or warranty).
8.2.1    Laulani Tenant Estoppel Requirements. For Laulani (including the Pad G Land), Tenant Estoppel Certificates shall be required from tenant comprising not less than eighty percent (80%) of Laulani’s gross leasable area under lease as of the expiration of the Due Diligence Period calculated on the basis of the GLA stated on Seller’s rent roll (“GLA”), which estoppels shall in any event include estoppels from Safeway, Ross, Petco and Walgreens.
8.2.2    Hokulei Tenant Estoppel Requirements. For Hokulei, Tenant Estoppel Certificates shall be required from (a) tenants comprising not less than eighty percent (80%) of Hokulei’s GLA under lease and paying rent as of the expiration of the Due Diligence Period, which estoppels shall in any event include estoppels from Safeway, Walgreens and Petco, and (b) tenants comprising not less than eighty percent (80%) of Hokulei’s GLA under lease but not paying rent as of the expiration of the Review Period.
8.2.3    Puunene Tenant Estoppel Requirements. For Puunene, Tenant Estoppel Certificates shall be required from (a) tenants comprising not less than eighty percent (80%) of Puunene’s GLA under lease and paying rent as of the expiration of the Due Diligence Period, and (b) tenants comprising not less than eighty percent (80%) of Puunene’s GLA under lease but not paying rent as of the expiration of the Due Diligence Period, which estoppels shall in any event include estoppels from Petco, Planet Fitness and ULTA.
8.2.4    Other Tenants. Tenant Estoppel Certificates shall be required for all tenants under any New Leases entered into after the expiration of the Due Diligence Period.
8.3    Real Property Agreement Counterparty Estoppels. No later than January 12, 2018, Seller shall deliver to Purchaser estoppel certificates from each of the counterparties under the recorded Declarations, Reciprocal Easement Agreements and other documents


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listed on Schedule 4.1(n) (each a “Counterparty Estoppel Certificate”). The Counterparty Estoppel Certificates shall be in forms prepared by Purchaser prior to the end of the Due Diligence Period and reasonably acceptable to Seller.
8.4    Construction Counterparty Estoppels. No later than January 12, 2018, Seller shall deliver to Purchaser estoppel certificates from each of the counterparties under the Other Agreements listed on Schedule 1.7 involved in the design, engineering or construction of the Work or the Ulta Work at the Puunene Land (each a “Construction Counterparty Estoppel Certificate”). The Counterparty Estoppel Certificates shall be in forms prepared by Purchaser prior to the end of the Due Diligence Period and reasonably acceptable to Seller and shall, among other things, certify to Purchaser the total amount payable to the counterparty under its contract (including retainage) not previously paid by Seller.
8.5    Accuracy of Seller’s Representations and Warranties. All of the representations and warranties of Seller contained in this Agreement shall be true and correct in all material respects as of the date of Closing (with modifications permitted under Section 9.2 or not materially adverse to Purchaser or the Property).
8.6    Title Policies. As a condition to Purchaser’s obligation to close hereunder, provided that Purchaser has complied with all requirements of the Title Insurer with respect thereto, Purchaser shall have received the Title Policies (or the Title Insurer’s irrevocable commitment to issue same) dated as of the Closing Date, in the amount of the Purchase Price, naming Purchaser as insured thereunder, subject only to the Permitted Exceptions.
8.7    New Leases. Purchaser’s obligation to close is contingent on execution of New Leases by each of the tenants listed on Schedule 9.3.1 in accordance with the requirements of Section 9.3.1 prior to Closing.
8.8    Termination of Hokulei CPR. Purchaser’s obligation to close is contingent on recording by Closing of the documents necessary to (i) terminate the existing condominium affecting the Hokulei Land, and (ii) vest fee simple title in Lots 1546-A through 1546-F as shown on Map 201 filed with Land Court Application 1087 in the Hokulei Seller.
8.9    Third Party Consents. Seller shall have delivered to Purchaser by Closing all consents of counterparties to the Property Agreements required for the assignment of such Property Agreements to Purchaser. Such consents shall be in forms prepared by Purchaser prior to the end of the Due Diligence Period and reasonably acceptable to Seller.
8.10    Puunene CPR Documentation. Prior to Closing (a) an as-built condominium map for all improvements at the Puunene Land shall have been recorded in accordance with Sections 514B-33 & -34, Hawaii Revised Statutes, and (b) Puunene Seller shall have received a assignment of the declarant rights under the Declaration of Condominium Property Regime affecting the Puunene Land. Such assignment shall be in a form prepared by Purchaser prior to the end of the Due Diligence Period and reasonably acceptable to Seller.


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8.11    Release of Memorandum of Russo’s Lease at Laulani. Prior to Closing Seller shall cause the release of the recorded memorandum of the Fresh Press Hawaii LLC (Russo’s) Shopping Center Lease dated June 20, 2013 that affects title to the Laulani Land, or alternatively cause the Title Company to insure over it.
9.    REPRESENTATIONS, WARRANTIES AND COVENANTS.
9.1    Seller’s Representations and Warranties. Subject to Section 9.6 and as of the Effective Date, the following representations and warranties are given by Seller provided, however, that each representation and warranty below shall be deemed to have been given individually on behalf of each entity comprising Seller, solely as to itself and/or the Property owned by the respective Seller entity only (that is, Hokulei Seller makes representations and warranties only as to itself and/or the Property related to the Hokulei Land, Laulani Seller makes representations and warranties only as to itself and/or the Property related Laulani Land, Pad G Seller makes representations and warranties only as to itself and/or the Property related to the Pad G Land and Puunene Seller makes representations and warranties only as to itself and/or the Property related to the Puunene Land):
9.1.1    Organization and Authority. Seller is duly organized, validly existing, and in good standing as a limited liability company in the State of Delaware. Seller has the full right and authority and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by Seller at the Closing will be, authorized and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Seller, enforceable in accordance with their terms.
9.1.2    No Conflict. The execution and delivery of this Agreement, the consummation of the transactions provided for herein and the fulfillment of the terms hereof will not result in a breach of any of the terms or provisions of, or constitute a default under, any provision of Seller’s organizational documents. There is no agreement to which Seller is a party or, to Seller’s knowledge, binding on Seller which is in conflict with this Agreement.
9.1.3    Condemnation. Seller has not received from any governmental authority any written notice of, and does not have any actual knowledge of, any pending or threatened condemnation of the Property or any part thereof.
9.1.4    Litigation and Administrative Actions. Except as set forth on Exhibit N attached hereto, Seller has not initiated or been served with any litigation, administrative proceeding, appeal (including real property tax appeals) or similar action which remains outstanding nor does Seller have any knowledge of any threatened litigation, administrative proceeding, appeal or similar action against Seller with respect to the ownership or operation of the Property.


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9.1.5    Service Contracts. The list of Service Contracts delivered pursuant to Section 1.5 is materially true, correct and complete as of the Effective Date. To Seller’s knowledge, the copies of Service Contracts delivered to Purchaser pursuant to Section 3 of this Agreement are true, correct and complete in all material respects as of the date of their delivery.
9.1.6    Leases. Exhibit B includes the rent roll used by Seller in Seller’s ordinary course of business and contains a materially true, correct and complete list of all tenants and other occupants that are party to a Lease as of the Effective Date. The Leases delivered to Purchaser pursuant to this Agreement are, to Seller’s knowledge, true, correct and complete copies, in all material respects, of same. To Seller’s knowledge, as of the Effective Date, the Leases are in full force and effect. As of the Effective Date, except as set forth on Exhibit B, (i) Seller has not delivered any written notice to any tenants under the Leases alleging a default by a tenant under its particular Lease which remains uncured, (ii) Seller has not received any written notice from any tenants under the Leases alleging a default by Seller, as landlord, which remains uncured, (iii) to Seller’s knowledge, no litigation is pending between Seller and any tenants under the Leases and (iv) to Seller’s knowledge, all work to be performed by Seller, as landlord under the Leases, prior to the commencement of the Leases has been completed (except as otherwise provided in this Agreement).
9.1.7    Regulatory Compliance. Except as set forth in Exhibit P attached hereto, Seller has, to Seller’s knowledge, received no written notice from any governmental agency or authority asserting the existence of an uncured material violation of any applicable federal, state, county or municipal law, code, zoning or land use condition, rule or regulation with respect to the Property or to Seller, or stating that any investigation has been commenced or is contemplated regarding any of the same, which were caused as a result of or which arise out of, result from or relate to Seller’s (including Seller’s agents) ownership, operation, maintenance (or failure to maintain), repair (or failure to repair), use, improvement (or failure to improve), development and/or re-development of the Property, including, without limitation, any demolition, grading, soil compaction, construction and/or reconstruction thereon or related thereto.
9.1.8    Leasing Commissions and Tenant Improvement Costs. As of the Effective Date, all leasing commissions with respect to the prior and/or current terms of the Leases have been paid in full, other than as set forth on Schedule 2.2 attached hereto. As of the Effective Date, all Tenant Inducement Costs and allowances with respect to the prior and/or current terms of the Leases have been paid in full, other than as set forth on Schedule 2.2 attached hereto.
9.1.9    United States Person. Seller is a “United States Person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and shall execute and deliver an “Entity Transferor” certification at Closing.


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9.1.10    Anti-Terrorism.
(a)    Seller and its directors, officers, employees, agents and affiliates are not Sanctioned Persons.  “Sanctioned Person” means:  (a) an entity or individual named on the Consolidated Sanctions List maintained by the U.S. Office of Foreign Assets Control, or any successor list, or targeted by the U.S. Department of State under economic or financial sanctions or trade embargoes of the United States (“Sanctions Laws”); (b) any other entity or individual with which an entity incorporated in the United States is prohibited from dealing pursuant to Sanctions Laws; or (c) any entity or individual acting on behalf of anyone described in the foregoing clauses of this definition.
(b)    Seller is in compliance, and shall remain in compliance, with Sanctions Laws and Anti-Money Laundering Laws (as hereinafter defined) and shall not, directly or indirectly, use any funds received from Purchaser in transactions with a Sanctioned Person or take any action that would cause Seller or Purchaser to be in violation of Sanctions Laws or Anti-Money Laundering Laws.  “Anti-Money Laundering Laws” means:  the U.S. Bank Secrecy Act, the USA PATRIOT Act, and all other laws of the United States that prohibit money laundering or other use of funds derived from illegal activity.
(c)    Seller covenants to provide any information deemed necessary by Purchaser to comply with Purchaser’s obligations under Sanctions Laws or Anti-Money Laundering Laws, and this obligation shall survive the termination of this Agreement.
9.1.11    Bankruptcy Matters. Seller has not made a general assignment for the benefit of creditors, filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by its creditors, suffered the appointment of a receiver to take possession of substantially all of its assets, suffered the attachment or other judicial seizure of substantially all of its assets, admitted its inability to pay its debts as they come due, or made an offer of settlement, extension or composition to its creditors generally.
9.1.12    Re-Zoning. Seller is not a party to, nor does Seller have any actual knowledge of, any threatened proceeding for the rezoning of the Property or any portion thereof, that would have an adverse or material impact on the value of the Property or use thereof.
9.1.13    Personal Property. There is no personal property owned by Seller necessary for the ownership, operation, use, occupancy, leasing, or management of the Property, used at the Property but located off-site.
9.1.14    Puunene Work. The Contract, the Ulta Contract and all Design Professional Contracts (all as defined in Section 9.4) have not been amended, modified or supplemented and, to Seller’s knowledge, are each in full force and


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effect except as set forth on Schedule 1.7. To Seller’s knowledge, there are no defaults under any material provision of such contracts, and all conditions to the continuing effectiveness of such contracts required to be satisfied as of the date hereof have been satisfied. Seller has not received any written advice or information from any of the counterparties to any of such contracts which, if true, could have a materially adverse effect upon timely completion of the Work or the Ulta Work, as applicable, in accordance with the terms thereof and the plans and specifications for the Work or the Ulta Work. To Seller’s actual knowledge there are no material defects with the Work.
9.1.15    Environmental Matters. To the extent of Seller’s actual knowledge and except as disclosed in the Documents, the Real Property is free from any flammable explosives, radioactive materials, asbestos, lead based paint, organic compounds known as polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic substances or related materials, including, without limitation, any substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” or “toxic substances” (collectively, “Hazardous Materials”) under any federal, state or local laws, ordinances or regulations, now or hereafter in effect, relating to environmental conditions, industrial hygiene or Hazardous Materials on, under or about the Property, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Clean Water Act, 33 U.S.C. Section 1251, et seq., the Clean Air Act, 42 U.S.C. Section 704, et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601 through 2629, the Safe Drinking Water Act, 42 U.S.C. Sections 300f through 300j, and any similar state and local laws and ordinances and regulations now or hereafter adopted, published and/or promulgated pursuant thereto (collectively, the “Hazardous Materials Laws”), except in compliance with the Hazardous Materials Laws or for normal amounts petrochemical products stored or used in the operation of the Property and at all times used, stored, maintained and dispensed in accordance with Hazardous Materials Laws. To the extent of Seller’s actual knowledge, and except as specifically disclosed in the Seller’s Due Diligence Documents, the Property is not currently used in a manner which violates any Hazardous Materials Laws in any material respect. To the extent of Seller’s actual knowledge, Seller has not received any notice from a governmental agency for violation of Hazardous Materials Laws.
As used in this Agreement, phrases such as “to Seller’s knowledge” and similar phrases, as the context may require, shall mean the conscious actual knowledge (as opposed to constructive, deemed or imputed knowledge) of or receipt of written notice by Tim Pettit, Senior Vice President of Investment Management and CFO, Scott Grady, Senior Vice President of Development, Tom Kuehl, Senior Vice President of Acquisition and Leasing, and/or Victor Port, Director of Property


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Management (individually and collectively, the “Knowledge Party”), and shall not be construed, by imputation or otherwise, to refer to the knowledge of any other officer, agent, manager, representative or employee of Seller, any property manager or any of their respective affiliates. There shall be no duty imposed or implied to investigate, inspect or audit any such matters, and there shall be no personal liability on the part of the Knowledge Party.
9.2    Representations Remade. As of Closing, and subject to this provisions of Section 8.5 and this Section 9.2, Seller shall be deemed to remake and restate the representations set forth in Section 9.1, except that the representations shall be updated by delivering written notice to Purchaser (a “Pre-Closing Disclosure”) in order to reflect any fact, matter or circumstance that would make any of Seller’s representations or warranties contained herein untrue or incorrect in any material respect (a “New Matter”) of which the Knowledge Party becomes aware. If Seller delivers a Pre-Closing Disclosure at any time after the Effective Date regarding a New Matter, or if Purchaser otherwise discovers a New Matter after the end of the Due Diligence Period, Purchaser may terminate this Agreement within ten (10) days of the Pre-Closing Disclosure or the date of discovery, as applicable (and in any event no later than two (2) business days prior to Closing), by written notice to Seller. Upon such termination, Escrow Agent shall promptly refund the Earnest Money to Purchaser, and neither party shall have any further rights or obligations under this Agreement or the ROE except those which expressly survive termination of this Agreement or the ROE. If Purchaser does not elect to terminate, then (i) the breach by Seller of the representations or warranties with respect to the New Matter shall be deemed waived by Purchaser, (ii) Seller shall not be in default hereunder and shall have no liability to Purchaser or its successors or assigns in respect thereof, and (iii) there shall be no failure of a condition precedent as a result thereof. Notwithstanding anything in this Agreement to the contrary, if (a) at any time prior to Closing Purchaser has actual knowledge that any of Seller’s representations or warranties set forth in this Agreement are untrue in any respect, then (i) the breach by Seller of the representations or warranties as to which Purchaser has such actual knowledge shall be deemed waived by Purchaser, (ii) Seller shall not be in default hereunder and shall have no liability to Purchaser or its successors or assigns in respect thereof, and (iii) there shall be no failure of a condition precedent as a result thereof.
9.3    Seller’s Pre-Closing Covenants. The following covenants are made by Seller provided, however, that each covenant below shall be deemed to have been made individually on behalf of each entity comprising Seller, as to itself and/or the Property owned by the respective Seller entity only (that is, Hokulei Seller makes covenants only as to itself and/or the Property related to the Hokulei Land, Laulani Seller makes covenants only as to itself and/or the Property related to the Laulani Land, Pad G Seller makes covenants only as to itself and/or the Property related to the Pad G Land and Puunene Seller makes covenants as to itself and/or the Property related to the Puunene Land):
9.3.1    New Leases. For purposes of this Agreement, any Lease entered into after November 5, 2017, and any modification, amendment, restatement or renewal of any existing Lease entered into after November 15, 2017, shall be referred


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to individually as a “New Lease” and collectively as the “New Leases.” Until the date that is five (5) business days prior to the expiration of the Due Diligence Period, Seller may enter into any New Leases without Purchaser’s consent, so long as Seller delivers a copy of any New Leases to Purchaser at least five (5) business days prior to the expiration of the Due Diligence Period. Following the date that is five (5) business days prior to the expiration of the Due Diligence Period, Seller shall not enter into any New Lease (other than an amendment, restatement, modification or renewal of any existing Lease pursuant to a right granted to the tenant under such existing Lease) without Purchaser’s prior written consent, which will not be unreasonably withheld, conditioned or delayed. If Purchaser does not respond in writing to Seller’s request for approval of a New Lease within five (5) business days after Purchaser’s receipt of Seller’s request, Purchaser shall be conclusively deemed to have approved of such New Lease. Notwithstanding the foregoing, Seller shall be entitled (but shall not be obligated) to enter into New Leases with those tenants, if any, identified on Schedule 9.3.1 attached hereto, and Purchaser shall be deemed to have approved any such New Lease, provided they are on terms consistent with the drafts provided to Purchaser prior to the end of the Due Diligence Period.
9.3.2    Service Contracts. Until five (5) business days prior to the expiration of the Due Diligence Period, Seller may enter into any new Service Contracts (or cancel, modify or renew any existing Service Contract) without Purchaser’s consent, so long as Seller delivers notice thereof (together with a copy of any new Service Contract or modification to a Service Contract, if applicable) to Purchaser at least five (5) business days prior to the expiration of the Due Diligence Period. Following the date that is five (5) business days prior to the expiration of the Due Diligence Period, Seller shall not enter into any new Service Contracts, or cancel, modify or renew any existing Service Contracts, without the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, unless such new Service Contracts are cancelable at Closing. If Purchaser fails to respond to Seller’s request for consent with respect to any such action within five (5) business days after receipt of Seller’s request, such consent shall be deemed given. At Closing, Purchaser shall take an assignment of all Service Contracts. On or before the end of the Due Diligence Period, Purchaser will indicate in a written notice to Seller which Service Contract(s) Purchaser elects to have Seller deliver notice of termination to the applicable counterparty(ies) at Closing (the “To Be Terminated Service Contracts”). Purchaser shall be responsible for any penalty or payment associated with the termination of the To Be Terminated Service Contracts; provided, however, such amount shall not exceed the amount stated in the applicable Service Contract or that Seller otherwise disclosed to Purchaser during the Due Diligence Period. With respect to the To Be Terminated Service Contracts, (i) to the extent amounts due thereunder have been pre-paid, at Closing, Seller shall receive a credit in an amount equal to any such pre-paid amounts attributable to the period from and after the Closing Date; and (ii) to the extent amounts due thereunder have not been pre-paid, Purchaser shall receive a credit in an amount equal to the amount payable under the applicable Service Contract(s) attributable to the period


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prior to Closing. If Purchaser fails to timely deliver such written notice, Purchaser shall be deemed to have assumed all of the Service Contracts. Purchaser will assume the obligations arising from and after the Closing Date under those Service Contracts which Purchaser has agreed to assume (or is deemed to have assumed) or which Seller is not required to terminate as set forth above. Notwithstanding the foregoing, Seller shall terminate at Closing, and Purchaser shall not assume, any property or asset management agreement, any leasing services agreement and any insurance affecting the Property; and, notwithstanding anything contained in this Agreement to the contrary, such agreements and/or contracts shall not, in any event, be or be deemed to be Service Contracts.
9.3.3    Operations. Between the Effective Date and the Closing Date, Seller shall operate the Property in the normal course of Seller’s business and maintain the Property in the same or better condition as of the Effective Date, ordinary wear and tear excepted, and subject to Section 5 above. Without limiting the foregoing, between the Effective Date and the Closing Date Seller shall diligently continue completion of the Work at the Puunene Land in accordance with the Construction Contract (all as defined in Section 9.4). Except as provided in the preceding sentence or as required of Seller under any of the Leases, in no event shall Seller be required to make any capital repairs, replacements or improvements to the Property.
9.3.4    Conveyance. Except as set forth in Section 9.3.1 hereof, between the Effective Date and the Closing Date, Seller shall not grant to any third party any interest or any right to acquire an interest in the Property or any part thereof or further encumber any of the Property (including, without limitation, the recording of any covenants, conditions, or restrictions against any of the Property) without the prior written approval of Purchaser, which shall not be unreasonably withheld, conditioned or delayed. Between the Effective Date and the Closing Date, Seller shall not: (a) enter into any binding agreement, formal or informal, for the sale, transfer or conveyance of the Property; or (b) enter into any binding agreement, arrangement or understanding for the sale, transfer or conveyance of the Property.
9.3.5    Property Agreements. Until five (5) business days prior to the expiration of the Due Diligence Period, Seller may amend any Property Agreement without Purchaser’s consent, so long as Seller delivers notice thereof (together with a copy of any such amendment) to Purchaser at least five (5) business days prior to the expiration of the Due Diligence Period. Following the date that is five (5) business days prior to the expiration of the Due Diligence Period, Seller shall not amend any of the Property Agreements, except (a) for amendments currently contemplated by any of the Property Agreements, or (b) as set forth on Schedule 9.3.6. On or before the end of the Due Diligence Period, Purchaser will notify Seller in writing of the Property Agreement(s) for which the counterparty’s consent to assignment is required at Closing.


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9.3.6    Permitted Actions. Notwithstanding anything set forth herein to the contrary (including without limitation the provisions of Sections 9.3.1 through 9.3.5 hereof), Seller shall be permitted to take the actions, if any, set forth on Schedule 9.3.6 without the same being a breach of any covenant of Seller hereunder or causing a breach of any representation or warranty hereunder.
If Seller fails to perform any of the covenants contained in this Section 9.3 hereof, and either Purchaser receives written notice thereof from Seller pursuant to the notice provisions hereof prior to Closing or Purchaser otherwise obtains actual knowledge of such failure prior to Closing, Purchaser shall have the rights and remedies available to Purchaser under Section 7.1 hereof, and if Purchaser elects to close and consummate the transaction contemplated by this Agreement in lieu of exercising its rights and remedies under Section 7.1 hereof, then such default by Seller shall be deemed to be waived by Purchaser at the Closing, and to the extent such default by Seller is the entering into by Seller of New Leases, new Service Contracts, new Property Agreements, or any other agreements in violation of Section 9.3.1, Section 9.3.2 or Section 9.3.5 hereof, Purchaser shall at Closing accept such agreements.
9.4    Puunene Construction Credits.
9.4.1    Seller and Purchaser acknowledge and agree that (i) certain site and shell construction work on the Puunene Land (as further described in the Construction Contract, the “Work”) is on-going pursuant to those certain Other Agreements by and between Puunene Seller, as owner, and Maryl Group Construction, Inc., as contractor (“Contractor”) listed on Schedule 1.7, (collectively the “Construction Contract”), (ii) the Work will not be complete or fully paid for on or before the Closing Date, and (iii) Purchaser shall be entitled to reductions of the Purchase Price at Closing in the amounts necessary to complete the Work and pay all obligations under each contract relating to the Work that are set forth on Schedule 2.2 (as updated pursuant to Section 9.4.3) and/or the Construction Counterparty Estoppel Certificates delivered pursuant to Section 8.4 (the “Post-Closing Work Credit”).
9.4.2    Seller and Purchaser acknowledge and agree that (i) certain tenant improvement work on the Puunene Land contemplated by that certain Lease Agreement by and between Owner, as landlord, and Ulta Salon, Cosmetics & Fragrance, Inc., a Delaware corporation, as tenant, (as further described in the Ulta Construction Contract, the “Ulta Work”) is on-going pursuant to that certain Other Agreement by and between Puunene Seller, as owner, and Contractor, as contractor, listed on Schedule 1.7 (the “Ulta Construction Contract”); (ii) the Ulta Work will not be complete or fully paid for on or before the Closing Date, and (iii) Purchaser shall be entitled to reductions of the Purchase Price at Closing in the amounts necessary to complete the Ulta Work and pay all obligations under each contract relating to the Ulta Work that are set forth on Schedule 2.2 (as updated pursuant to Section 9.4.3) and/or the Construction Counterparty Estoppel Certificates delivered pursuant to Section 8.4 with respect to the Ulta Work (the “Post-Closing Ulta Work Credit”).


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9.4.3    Prior to Closing, either party shall have the right to update the Post-Closing Work Credit and the Post-Closing Ulta Work Credit shown on Schedule 2.2 to reflect amounts (if any) credited to Purchaser on Schedule 2.2 that Seller actually paid prior to Closing. The updated Schedule 2.2 shall be subject to the other party’s approval, which shall not be unreasonably withheld.
9.5    Purchaser’s Representations and Warranties. Purchaser represents and warrants that:
9.5.1    ERISA. Purchaser’s rights under this Agreement, the assets it shall use to acquire the Property and, upon its acquisition by Purchaser, the Property itself, do not and shall not constitute plan assets within the meaning of 29 C.F.R. §2510.3-101, and Purchaser is not a “governmental plan” within the meaning of section 3(32) of the Employee Retirement Income Security Act of 1974, as amended, and the execution of this Agreement and the purchase of the Property by Purchaser is not subject to state statutes regulating investments of and fiduciary obligations with respect to governmental plans.
9.5.2    Organization and Authority. Purchaser is a series of a limited liability company duly organized, validly existing and in good standing under the laws of the state of its organization. Purchaser has the power and authority to enter into this Agreement and to perform its obligations hereunder, and all action and approvals required therefor have been duly taken and obtained.
9.5.3    No Conflict. The execution and delivery of this Agreement, the consummation of the transactions provided for herein and the fulfillment of the terms hereof will not result in a breach of any of the terms or provisions of, or constitute a default under, any provision of Purchaser’s organizational documents, or of any laws, rules, codes, ordinances applicable to Purchaser or any agreements binding upon Purchaser.
9.5.4    No Bankruptcy. Purchaser has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Purchaser’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Purchaser’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Purchaser’s assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
9.5.5    Enforceability. This Agreement and all documents to be executed pursuant hereto by Purchaser are and shall be binding upon and enforceable against Purchaser in accordance with their respective terms, subject to (a) applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and (b) the exercise of judicial discretion in accordance with general principles of equity.


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9.5.6    Patriot Act Compliance. Neither Purchaser nor any person, group, entity or nation that Purchaser is acting, directly or indirectly, for or on behalf of, is named by any Executive Order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person,” or is otherwise a banned or blocked person, group, entity, or nation pursuant to any law that is enforced or administered by the Office of Foreign Assets Control, and Purchaser is not engaging in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of, any such person, group, entity or nation. Purchaser is not engaging in this transaction, directly or indirectly, in violation of any laws relating to drug trafficking, money laundering or predicate crimes to money laundering. None of the funds of Purchaser have been or will be derived from any unlawful activity with the result that the investment of direct or indirect equity owners in Purchaser is prohibited by law or that the transaction or this Agreement is or will be in violation of law. Purchaser has and will continue to implement procedures, and has consistently and will continue to consistently apply those procedures, to ensure the foregoing representations and warranties remain true and correct at all times prior to Closing.
9.6    Survival. Purchaser’s right to enforce the representations and warranties set forth in this Agreement, subject to modifications thereto as a result of any Pre-Closing Disclosure under Section 9.2, shall survive the Closing for twelve (12) months (the “Survival Period”). No claim by Purchaser following Closing for a breach of any representation or warranty of Seller set forth in this Agreement shall be actionable or payable unless written notice containing a description of the specific nature of such breach or claim shall have been given to Seller prior to the expiration of the Survival Period and an action shall have been commenced in a court having jurisdiction within forty-five (45) days after the expiration of the Survival Period, in which case such action shall survive until fully and finally resolved. Seller’s right to enforce the representations and warranties set forth in Section 9.5 shall survive the Closing for the Survival Period.
10.    LIMITATION OF LIABILITY. Notwithstanding anything to the contrary contained herein, if the Closing shall have occurred, (a) the aggregate liability of Seller arising pursuant to or in connection with the representations, warranties, indemnifications, covenants or other obligations (whether express or implied) of Seller under this Agreement (or any document executed or delivered in connection herewith) shall not exceed Ten Million and No/100 Dollars ($10,000,000.00) (the “Liability Limitation”) and (b) no claim by Purchaser alleging a breach by Seller of any representation, warranty, indemnification, covenant or other obligation of Seller contained herein (or in any document executed or delivered in connection herewith) may be made, and Seller shall not be liable for any judgment in any action based upon any such claim, unless and until such claim, either alone or together with any other claims by Purchaser against Seller alleging a breach by Seller of any representation, warranty, indemnification, covenant or other obligation of Seller contained herein (or in any document executed or delivered in connection herewith), is for an aggregate amount in excess of Five Hundred Thousand and No/100 Dollars ($500,000.00) (the “Floor Amount”), in


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which event Seller’s liability respecting any final judgment concerning such claim or claims shall be for the entire amount thereof, subject to the limitation set forth in clause (a) above. Notwithstanding the foregoing, the Floor Amount shall not apply to breaches of Seller’s representations regarding leasing commissions, Tenant Improvement Costs, or under Section 9.1.14, or to Seller’s obligations with respect to the Work and the Ulta Work. The Liability Limitation shall be reduced by the amount of any payments to Purchaser from the Holdback Account establish pursuant to Section 10.1 or by the Guarantor under the Guaranty set forth in Section 10.2. No constituent partner or member in or agent of Seller, nor any advisor, trustee, director, officer, manager, member, partner, employee, beneficiary, shareholder, participant, representative or agent of Seller or any entity that is or becomes a constituent partner or member in Seller or an agent of Seller (including, but not limited to, Terramar Retail Centers, LLC) (“Seller’s Affiliates”) shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or pursuant to the provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter, and Purchaser and its successors and assigns and, without limitation, all other persons and entities, shall look solely to Seller’s assets for the payment of any claim or for any performance, and Purchaser, on behalf of itself and its successors and assigns, hereby waives any and all such personal liability. Notwithstanding anything to the contrary contained in this Agreement, neither the negative capital account of any constituent partner or member in Seller or any entity owning an interest (directly or indirectly) in Seller, nor any obligation of any constituent partner or member in Seller or any entity owning an interest (directly or indirectly) in Seller to restore a negative capital account or to contribute capital to Seller (or any entity owning an interest, directly or indirectly, in any other constituent partner or member of Seller), shall at any time be deemed to be the property or an asset of Seller or any such other entity (and neither Purchaser nor any of its successors or assigns shall have any right to collect, enforce or proceed against or with respect to any such negative capital account or obligation to restore or contribute). The provisions of this Section 10 shall survive the Closing and any termination of this Agreement
10.1    Escrow Holdback; Appointment of Escrow Agent; Term. At Closing, Escrow Agent shall withhold from Seller’s proceeds from the Purchase Price the sum of One Million and No/100 Dollars ($1,000,000.00) (the “Holdback Amount”) to pay any debts, obligations or liabilities Seller may have to Purchaser after Closing that arise pursuant to or in connection with the representations, warranties, indemnifications, covenants or other obligations of Seller under this Agreement (or any document of conveyance executed by Seller or delivered to Purchaser in connection with Closing) (the “Post-Closing Obligations”). Seller and Purchaser hereby appoint and designate the Escrow Agent to hold, administer, and disburse the Holdback Amount, and Escrow Agent accepts such appointment. The Holdback Amount shall be placed in one or more interest-bearing FDIC insured accounts (the “Holdback Account”). If Purchaser incurs any cost, expense or liability with respect to any of Seller’s Post-Closing Obligations, Purchaser shall have the right, but not the obligation, to require payment from Escrow Agent out of the Holdback Account for the amount of any such costs, expense or liabilities. To draw on the Holdback Account, Purchaser must send written request for payment to Escrow Agent and Seller detailing the amount payable and including supporting documentation of the amount requested in reasonable detail. Seller hereby irrevocably instructs Escrow Agent to pay


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Purchaser any undisputed amounts that Purchaser requests in accordance with the preceding sentence out of the Holdback Account no less than five (5) business days of receipt of a Purchaser’s written request, provided that unless Seller approves such payment in writing within such 5-business day period Escrow Agent shall only pay the portion (if any) to which Seller approves in writing, and shall continue to hold the balance of the requested payment until its disposition is resolved by mutual written instructions of the parties or final, non-appealable court judgment. Any fees of Escrow Agent for establishing and administering the Holdback Account shall be paid by Purchaser. The Holdback Amount, or any remaining portion thereof, shall be remitted to Seller upon the expiration of the Survival Period, provided however that if any Purchaser claims for reimbursement are pending or unresolved at either such time Escrow Agent shall withhold 120% of the amount of any such claims pursuant to the terms of this Section 10.1 until such claims are paid in full or resolved by mutual agreement of the parties or final court judgment.
Escrow Agent at its sole discretion may file a suit in interpleader in any court having jurisdiction in the matter, for the purpose of having the respective rights of disputing parties adjudicated, and may deposit with the court any or all monies held hereunder with deductions for Escrow Agent’s attorney’s fees and costs. Upon institution of such interpleader suit or other action, depositing such money with the court, and giving notice thereof to the parties thereto by personal service or in accordance with the order of the court, Escrow Agent shall be fully released and discharged from all further obligations hereunder with respect to the monies so deposited.
10.2    Limited Guaranty. At Closing, Terramar Retail Centers, LLC, a Delaware limited liability company (“Guarantor”) shall guaranty payment of the Post-Closing Obligations for twelve (12) months after Closing by way of a guaranty in the form attached hereto as Exhibit W (the “Guaranty”). Guarantor’s liability under the Guaranty shall not exceed the Liability Limitation and shall be reduced by the amount of any payments Purchaser receives from Seller or the Holdback Account.
11.    MISCELLANEOUS.
11.1    Entire Agreement. All understandings and agreements heretofore had between Seller and Purchaser with respect to the Property are merged in this Agreement, which alone fully and completely expresses the agreement of the parties. Purchaser acknowledges that it has inspected or will inspect the Property and that it accepts the same in its “as is” condition subject to use, ordinary wear and tear and natural deterioration and the representations and warranties of Seller contained herein or in any conveyance documents or certifications. Purchaser further acknowledges that, except as expressly provided in this Agreement or in any conveyance document or certification, neither Seller nor any agent or representative of Seller has made, and Seller is not liable for or bound in any manner by, any express or implied warranties, guaranties, promises, statements, inducements, representations or information pertaining to the Property.
11.2    Assignment. Neither this Agreement nor any interest hereunder shall be assigned or transferred by Purchaser without Seller’s prior written consent (which consent


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may be withheld in Seller’s sole and absolute discretion). Notwithstanding the foregoing, Purchaser may without Seller’s consent assign this Agreement, in whole or in part, to entities owned by or under common ownership and control with Purchaser (each, a “Purchaser’s Designee”). Except for sale or trading of stock in Purchaser’s ultimate parent corporation, and internal ownership changes that do not result in Purchaser having a different ultimate parent corporation, the transfer of a controlling equity interest in Purchaser, whether by sale, operation of law or otherwise, shall be deemed an assignment of this Agreement that requires Seller’s prior written consent (which consent may be withheld in Seller’s sole and absolute discretion). Any assignment of this Agreement without Seller’s consent shall be void. Upon any assignment consented to hereunder by Seller, the Purchaser named herein shall remain liable to Seller for the performance of “Purchaser’s” obligations hereunder. Subject to the foregoing, this Agreement shall inure to the benefit of and shall be binding upon Seller and Purchaser and their respective successors and assigns.
11.3    Modifications. This Agreement shall not be modified or amended except in a written document signed by Seller and Purchaser.
11.4    Time of Essence. Time is of the essence of this Agreement. In the computation of any period of time provided for in this Agreement or by law, time periods shall expire at 5:00 p.m., Hawaii-Aleutian Standard Time (except as may be otherwise expressly set forth herein), the day of the act or event from which the period of time runs shall be excluded, and the last day of such period shall be included, unless it is a Saturday, Sunday, or legal holiday, in which case the period shall be deemed to run until 5:00 p.m., Hawaii-Aleutian Standard Time (except as may be otherwise expressly set forth herein) on the next day which is not a Saturday, Sunday, or legal holiday.
11.5    Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State where the Land is located.
11.6    Notices. All notices, requests, demands or other communications required or permitted under this Agreement shall be in writing and delivered personally or by certified mail, return receipt requested, postage prepaid, or by overnight courier (such as Federal Express), addressed as follows below. All notices given in accordance with the terms hereof shall be deemed given when received or upon refusal of delivery. Either party hereto may change the address for receiving notices, requests, demands or other communication by notice sent in accordance with the terms of this Section 11.6.


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If to Seller:
c/o Terramar Retail Centers, LLC 
4695 MacArthur Court, Suite 700
Newport Beach, CA 92660
Attention: Tom Kuehl 
Telephone: (949) 662-2122


With a copy to:
Barack Ferrazzano Kirschbaum & Nagelberg LLP
200 West Madison Street, Suite 3900
Chicago, Illinois 60606
Attention: Chuck Picton, Esq.
 
Telephone: (312) 629-5133
If to Purchaser:
c/o A&B Properties Hawaii, LLC Series R  
822 Bishop Street 
Honolulu, Hawaii 96813
Attention: Jeff Pauker
Telephone: (808) 525-6611

With a copy to:
A&B Properties Hawaii, LLC Series R  
822 Bishop Street 
Honolulu, Hawaii 96813
Attention: General Counsel
Telephone: (808) 525-6611

With a copy to:
Cades Schutte LLP  
1000 Bishop Street, 12th Floor  
Honolulu, Hawaii 96813
Attention: Richard Kiefer, Esq.
Telephone: (808) 521-9200
    
11.7    “AS IS” SALE. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND PURCHASER’S OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER AGREES, SUBJECT TO THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN OR IN ANY CONVEYANCE DOCUMENTS OR CERTIFICATIONS MADE OR DELIVERED BY SELLER, THAT IT SHALL TAKE THE PROPERTY “AS-IS,” “WHERE-IS,” AND WITH ALL FAULTS AND CONDITIONS THEREON. ANY INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS (COLLECTIVELY, THE “DISCLOSURES”) PROVIDED OR MADE TO PURCHASER OR ITS


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CONSTITUENTS BY SELLER OR ANY OF SELLER’S AFFILIATES OR REPRESENTATIVES CONCERNING THE CONDITION OF THE PROPERTY SHALL NOT BE REPRESENTATIONS OR WARRANTIES, EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN OR IN ANY CONVEYANCE DOCUMENTS OR CERTIFICATIONS. PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT RATHER, PURCHASER SHALL RELY ONLY ON ITS OWN INSPECTION OF THE PROPERTY AND THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN AND IN ANY CONVEYANCE DOCUMENT OR CERTIFICATION. PURCHASER ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN OR IN ANY CONVEYANCE DOCUMENTS OR CERTIFICATIONS ABOVE, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY INCLUDING WITHOUT LIMITATION ZONING, I THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN OR IN ANY CONVEYANCE DOCUMENTS OR CERTIFICATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980 (“CERCLA”), AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, PURCHASER (AND ANY ENTITY AFFILIATED WITH OR CLAIMING BY, THROUGH OR UNDER PURCHASER) HEREBY WAIVE, RELEASE AND AGREE NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM FOR CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST SELLER OR SELLER’S AFFILIATES BASED ON (A) ANY FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY LAW OR REGULATION, INCLUDING CERCLA OR ANY STATE EQUIVALENT, OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED, (B) ANY DISCHARGE, DISPOSAL, RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY MATERIAL WHATSOEVER, ON, AT, TO, OR FROM THE PROPERTY, OR (C) ANY


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ENVIRONMENTAL CONDITIONS WHATSOEVER ON, UNDER, OR IN THE VICINITY OF THE PROPERTY, EXCEPT FOR CLAIMS BASED UPON A BREACH OF ANY REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN OR IN ANY CONVEYANCE DOCUMENTS OR CERTIFICATIONS.
WITHOUT LIMITATION UPON PURCHASER’S RIGHT TO RELY ON THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN OR IN ANY CONVEYANCE DOCUMENTS OR CERTIFICATIONS, PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS, REPRESENTATIVES OR EMPLOYEES WITH RESPECT THERETO. UPON CLOSING, PURCHASER (AND ANY ENTITY AFFILIATED WITH OR CLAIMING BY, THROUGH OR UNDER PURCHASER) SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INVESTIGATIONS, AND PURCHASER (AND ANY ENTITY AFFILIATED WITH OR CLAIMING BY, THROUGH OR UNDER PURCHASER), UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER’S AFFILIATES) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER’S AFFILIATES) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS, ERRORS OR OMISSIONS IN DESIGN OR CONSTRUCTION, OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, LIABILITIES EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY, EXCEPT FOR BREACHES BY SELLER OF THE EXPRESS PROVISIONS OF THIS AGREEMENT OR ANY CONVEYANCE DOCUMENTS OR CERTIFICATIONS.
THE PROVISIONS OF THIS SECTION 11.7 SHALL SURVIVE THE CLOSING AND ANY TERMINATION OF THIS AGREEMENT.


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11.8    Trial by Jury. In any lawsuit or other proceeding initiated by Seller or Purchaser under or with respect to this Agreement, Seller and Purchaser each waive any right they may have to trial by jury. In addition, Purchaser waives any right to seek rescission of the transaction provided for in this Agreement. Notwithstanding any provisions of this Agreement to the contrary, the obligations of the parties under this Section 11.8 shall survive any termination of this Agreement and the Closing.
11.9    Confidentiality. Except as may be required by law or, with respect to Purchaser, the requirements of the U.S. Securities and Exchange Commission (“SEC”), or as provided in the June 2017 Principal Confidentiality Agreement made by Purchaser in favor of Seller, neither Seller or Purchaser shall, without the prior written consent of the other, and unless the Closing occurs, disclose to any third party the existence of this Agreement or any term or condition thereof or the results of any inspections or studies undertaken in connection herewith or make any public pronouncements, issue any press releases or otherwise disclose the Information (hereinafter defined) or any information regarding this Agreement or the Property, or the transactions contemplated hereby to any third party; provided, however, that the foregoing shall not be construed to prevent (1) Purchaser from making (without the consent of, but upon notice to, Seller) any disclosure required by any applicable law or regulation or judicial process or SEC requirement or (2) Seller from disclosing the existence of this Agreement and the details regarding this Agreement to its agents, employees, representatives, consultants, board of directors and equity holders. For purposes hereof, “Information” shall mean and shall be deemed to include, without limitation, the following written or oral information provided by or on behalf of Seller to Purchaser, its actual or proposed partners or lenders, and their respective agents, employees, representatives, consultants and board members (collectively, “Purchaser’s Representatives”) either prior to or following the Effective Date: (a) all documentation and/or information described in or relating to Section 1 of this Agreement, including, without limitation, Property Agreements, Tangible Personal Property and all other information regarding the operation, ownership, maintenance, management, or occupancy of the Property; (b) the Title and Survey; and (c) any reports, tests, or studies (together with the results of such studies and tests obtained or provided by, or on behalf of, Seller).
Notwithstanding the foregoing, but subject to Purchaser’s legal and SEC obligations, Seller’s delivery and Purchaser’s use of the Information are subject to the following terms: Purchaser shall (i) accept and hold all Information in strict confidence in accordance with the terms of this Agreement; (ii) not copy, reproduce, distribute or disclose the Information to any third party other than Purchaser’s Representatives, except as permitted in the preceding paragraph; (iii) not use the Information for any purpose other than in connection with the transactions contemplated hereunder; and (iv) not use the Information in any manner detrimental to Seller or the Property. Purchaser agrees to transmit the Information only to those Purchaser’s Representatives who are actively and directly participating in the evaluation of the acquisition of the Property, who are informed of and who have agreed to comply with the terms of this Section 11.9 of this Agreement and who are instructed not to make use of the Information in a manner inconsistent herewith. Purchaser shall be responsible for any breach of the terms of this Agreement by Purchaser’ Representatives or


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any other person to whom the Information is communicated. Purchaser agrees to indemnify, defend and hold Seller and the Seller Indemnified Parties harmless against all Losses resulting from Purchaser’s breach of this Section 11.9, as well as any breach thereof by Purchaser’s Representatives, which indemnification shall survive the Closing or termination of this Agreement. Upon any termination of this Agreement, Purchaser shall return all Information provided by or on behalf of Seller to Seller, which obligation shall survive any termination of this Agreement.
11.10    Reports. If for any reason Purchaser does not consummate the Closing, then Purchaser shall, only upon Seller’s written request and without courier cost to Purchaser, promptly deliver to Seller copies of all final, non-privileged or –confidential third party reports relating to the Property or any part thereof prepared at the request of Purchaser, its employees and agents.
11.11    Reporting Person. Seller and Purchaser hereby designate Escrow Agent to act as and perform the duties and obligations of the “reporting person” with respect to the transaction contemplated by this Agreement for purposes of 26 C.F.R. Section 1.6045-4I(5) relating to the requirements for information reporting on real estate transactions closed on or after January 1, 1991. In this regard, Seller and Purchaser each agree to execute at Closing, and to cause Escrow Agent to execute at Closing, a designation agreement, designating Escrow Agent as the reporting person with respect to the transaction contemplated by this Agreement.
11.12    Press Releases. The parties hereto shall not issue any press releases with respect to the transactions contemplated hereby or consummated in accordance with the terms hereof except as required by law or upon the mutual agreement of the parties as to the form and content of such press release (with consent not to be unreasonably withheld, conditioned or delayed by either party), except that either party may issue a press release after Closing without the consent of the other, provided that Purchaser shall remain subject to Section 11.9 hereof for all purposes.
11.13    Counterparts. This Agreement may be executed in any number of identical counterparts, any or all of which may contain the signatures of less than all of the parties, and all of which shall be construed together as but a single instrument. A party hereto may deliver executed signature pages to this Agreement by .pdf through email to any other party hereto, which .pdf copy shall be deemed to be an original executed signature page.
11.14    Construction. This Agreement shall not be construed more strictly against Seller merely by virtue of the fact that the initial draft of same was been prepared by Seller or its counsel, it being recognized that both of the parties hereto have contributed substantially and materially to the preparation of this Agreement.
11.15    Partial Invalidity. In the event that any provision of this Agreement shall be unenforceable in whole or in part, such provision shall be limited to the extent necessary to render the same valid, or shall be excised from this Agreement, as circumstances require,


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and this Agreement shall be construed as if said provision had been incorporated herein as so limited, or as if said provision has not been included herein, as the case may be.
11.16    Headings. Headings of Sections are for convenience of reference only, and shall not be construed as a part of this Agreement.    
11.17    Attorneys’ Fees. In the event of litigation between the parties with respect to this Agreement or the transaction contemplated hereby, the prevailing party therein shall be entitled to recover from the losing party all of its reasonable, actual out-of-pocket costs of enforcement and litigation, including, but not limited to, its reasonable attorneys’ and paralegal fees, witness fees, court reporters’ fees and other costs of suit. Notwithstanding any provisions of this Agreement to the contrary, the obligations of the parties under this Section 11.17 shall survive any termination of this Agreement and the Closing.
11.18    No Recording. Neither Seller nor Purchaser may record a copy of this Agreement or any memorandum hereof.    
11.19    Early Access Agreement. Purchaser and Seller have previously executed a certain Right of Entry Agreement with respect to the Property dated as of October 24, 2017. In the event of any inconsistency between the terms of such Access Agreement and this Agreement, the terms of this Agreement shall control and supersede such terms in the Access Agreement which are inconsistent.
11.20    Loan Assumption. This transaction is contingent on Purchaser’s taking title to the Property related to the Laulani Land subject to, and assuming (the “Loan Assumption”) all of Laulani Seller’s obligations with respect to that certain loan (the “Loan”) held by Northwestern Mutual Life Insurance Company, a Wisconsin corporation (“Lender”), pursuant to those certain loan documents related thereto (the “Loan Documents”) or, at Purchaser’s option, prepayment of the Loan; provided, however, the failure of this condition to be satisfied shall not be a Seller default. Purchaser agrees to proceed diligently and in good faith to obtain the approval of Lender with respect to Purchaser’s application to assume Laulani Seller’s obligations under the Loan Documents on the Closing Date (the “Assumption Approval”). Laulani Seller covenants and agrees to cooperate in good faith, at no material cost to Laulani Seller except as expressly set forth in this Section 11.20, with Purchaser and Lender, from time to time, upon Purchaser’s or Lender’s reasonable request, and in all reasonable respects, with respect to Purchaser attempting to obtain the Assumption Approval. In the event the Lender does not grant Assumption Approval by the Closing Date, either Purchaser or Seller may terminate this Agreement, whereupon the Earnest Money shall be returned to Purchaser and neither party shall have any further obligations under this Agreement except for obligations that expressly survive termination. If the Loan Assumption is approved, at Closing: (A) Seller shall pay to Lender (1) any application fees applicable to the application for the Loan Assumption or assignment fees owing under the Loan Documents and (2) any other actual, documented, out-of-pocket costs of Lender paid to non-affiliated third parties in connection with the Loan Assumption, up to a cumulative amount with respect to (1) and (2) equal to Five Hundred Thousand and No/100 Dollars ($500,000.00); and (B) Purchaser shall pay to Lender, any


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other costs, fees and expenses of Lender directly or indirectly related to the Loan Assumption in excess of Five Hundred Thousand and No/100 Dollars ($500,000.00). Notwithstanding anything herein to the contrary, under no circumstances shall Seller or Purchaser be deemed obligated to pre-pay the Loan.
[Signature Page to Follow]



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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representatives as of the Effective Date.
SELLER:
HOKULEI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member

By: /s/ Tim Pettit
Name:   Tim Pettit
Title:      CFO  

TRC LAULANI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name:   Tim Pettit
Title:      CFO  
LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company

By: /s/ Tim Pettit
Name:   Tim Pettit
Title:      CFO  
PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member

By: /s/ Tim Pettit
Name:   Tim Pettit
Title:      CFO  


    
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PURCHASER:
A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company
By:   /s/ Charlie Loomis   
Name:     Charles W. Loomis 
Title:   Asst. Secretary   
company

By:   /s/ Jeff Pauker   
Name:   Jeffrey W. Pauker   
Title:  Vice President    



And Title Guaranty Escrow Services, Inc., as Escrow Agent (defined above), hereby undertakes and agrees to perform all of the duties and obligations of the Escrow Agent set forth in the foregoing agreement, including without limitation administration of the Escrow Holdback under Section 10.1, on and subject to the terms and conditions set forth herein.

ESCROW AGENT:

TITLE GUARANTY ESCROW SERVICES INC.



By _____________________________
Name: Jeremy Trueblood
Its: Branch Manager

    
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LIST OF EXHIBITS:

A-1    Legal Description for Hokulei Land
A-2    Legal Description for Laulani Land
A-3    Legal Description for Pad G Land
A-4    Legal Description for Puunene Land
B-1    Lease Information for Property related to Hokulei Land
B-2    Lease Information for Property related to Laulani Land
B-3    Lease Information for Property related to Pad G Land
B-4    Lease Information for Property related to Puunene Land
C    [Reserved]
D    [Reserved]
E    [Reserved]
F-1    Title Commitment for Property related to Hokulei Land
F-2    Title Commitment for Property related to Laulani Land
F-3    Title Commitment for Property related to Pad G Land
F-4    Title Commitment for Property related to Puunene Land
G    Form of Deed
H    Notice to Tenants
I    Notice to Parties to Service Contracts
J    Certificate of Non-Foreign Status
K    [Reserved]
L    Form Tenant Estoppel Certificate
M    [Reserved]
N-1    List of Pending Litigation for Property related to Hokulei Land

N-2    List of Pending Litigation for Property related to Laulani Land
N-3    List of Pending Litigation for Property related to Pad G Land
N-4    List of Pending Litigation for Property related to Puunene Land
O    Bill of Sale
P-1    Regulatory Compliance Disclosures for Property related to Hokulei Land

P-2    Regulatory Compliance Disclosures for Property related to Laulani Land
P-3    Regulatory Compliance Disclosures for Property related to Pad G Land
P-4    Regulatory Compliance Disclosures for Property related to Puunene Land
Q    Notice to Parties to Property Agreements
R    Assignment of Leases
S    General Assignment
T    1031 Assignment & Assumption Agreement
U    1031 Assignment & Release Agreement
V    Assignment of Declarant Rights
W    Guaranty

Schedules:

1.4    Tangible Personal Property

    
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1.7    Other Agreements
2.1    Allocation of Purchase Price
2.2    Leasing & Construction Credits
4.1(n)    Declarations & R.E.A.s
8.1    Seller’s Due Diligence Documents
9.3.1    New Leases
9.3.6    Permitted Actions


    
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EXHIBIT A-1
LEGAL DESCRIPTION FOR HOKULEI LAND
FIRST:
UNITS A, B, C, D, E and F listed in Exhibit "B-1" of the Condominium Project known as "HOKULEI VILLAGE" as established by Declaration of Condominium Property Regime dated December 11, 2014 filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Land Court Document No. T-9111280 and as shown on Condominium Map No. 2267, filed in said Office, and any amendments thereto.
Together with those easements appurtenant to said Unit as established by and described in the Declaration, which may including the following:
(A)
Exclusive easement(s) to use the limited common elements of the Project which are described in said Declaration as being appurtenant to the Unit, if any.
(B)
Non-exclusive easements in the common elements, including the limited common elements, if any, and in the Project, designed for such purposes as ingress to , egress from, utility services for and support, and as necessary, for the maintenance and repair of the Unit; in the other common elements for use according to their respective purposes, subject always to the exclusive use of the limited common elements as provided in the Declaration; subject to the provision of Section 514B-38 of the Act.
(C)
In the case of encroachments by the Unit upon the common elements or upon any other unit, a valid easement for such encroachment and the maintenance thereof, so long as it continues, shall exist. In the event that a unit shall be partially or totally destroyed and the rebuilt, or in the event of any shifting, settlement or movement of any part of the Project, encroachments of any part of the common elements, units or limited common elements due to such construction, shifting, settlement or movement shall be permitted, and valid easements for such encroachments and the maintenance there
Excepting and reserving and subject to all easements as provided in the Declaration, including, but not limited to, (i) easements for encroachments appurtenant to other units or the common elements as they arise in the manner set forth above, now or hereafter existing thereon, (ii) easements for access to the Unit or any limited common appurtenant thereto from time to time during reasonable hours as may be appropriate for the operation or maintenance of the Project or, without notice, at any time for (a) making emergency repairs therein necessary to prevents damage to any unit or common element, (b) abating any nuisance or any dangerous, unauthorized, prohibited or unlawful activity, (c) protecting the property rights of any owner, or (d) preventing death or serious bodily injury to any owner or other occupant therein, and (iii) easements necessary to complete the Project, for noise and dust, to conduct sales activities upon the Project, and to subdivide or consolidate units of the Project, all as provided in the Declaration.
SECOND:

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Undivided 61.95% fee simple interests in all common elements of the Project as established by the Declaration, including the land described in said Declaration, or such other interest as hereafter established for the Unit by any amendment of the Declaration, as tenant in common with the holders of other undivided interests in and to said common elements.
The land upon which said Condominium Project "HOKULEI VILLAGE" is located is described as follows:
All of that certain parcel of land situate at Lihue, District of Puna, Island and County of Kauai, State of Hawaii, described as follows:
LOT 1546, area 22.818 acres, more or less, as shown on Map 141, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application 1087 (amended) of Grove Farm Company, Limited;
Together with access over Lot 1542 to Kaumualii Highway, a public road, as set forth by Land Court Order No. 131986, filed July 8, 1998.
Together also with vehicle access rights over and across Boundary 27 as granted by EXCHANGE OF VEHICLE ACCESS RIGHTS dated September 23, 2010, filed as Document No. 4010164; being more particularly described therein and subject to the terms and provisions contained therein.
Together also with a non-exclusive easement for access and underground utility purposes, as granted by GRANT OF EASEMENT KOLOPA STREET EXTENSION (Vehicular Access and Utilities) dated April 26, 2013, filed as Land Court Document No. T-8527332; subject to the terms and provisions contained therein.
Being land(s) described in Transfer Certificate of Title No. 1,090,432 issued to HOKULEI VILLAGE LLC, a Delaware limited liability company.
.

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EXHIBIT A-2
LEGAL DESCRIPTION FOR LAULANI LAND
LOT 1
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 1 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the east corner of this parcel of land, along the southwest side of Fort Weaver Road, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,053.13 feet south and 18,042.45 feet west, thence running by azimuths measured clockwise from true South:
1.    58°     16’    491.09    feet along Lots 19591 and 19588 (Map 1547 of Land Court Application 1069;
2.    148°     16’    633.21    feet along Lots 4, 3, and 11 of Laulani Ewa Subdivision;
3.    58°    16’    1.00    feet along Lot 11 of Laulani Ewa Subdivision;
4.    148°    16’    134.17    feet along Lot 11 of Laulani Ewa Subdivision;
5.    240°    20’    30.02    feet along the southeast side of Keaunui Drive;
6.    328°    16’    133.09    feet along Lot 12 of Laulani Ewa Subdivision;
7.    58°    16’    1.00    feet along Lot 12 of Laulani Ewa Subdivision;
8.    328°    16’    141.63    feet along Lots 12 and 13 of Laulani Ewa Subdivision;
9.    238°    16’    275.26    feet along Lots 13 and 14 of Laulani Ewa Subdivision;
10.    269°    49’    93.16    feet along Lot 14 of Laulani Ewa Subdivision;
11.    328°    16’    26.16    feet along Lot 14 of Laulani Ewa Subdivision;
12.    238°    16’    108.62    feet along Lot 14 of Laulani Ewa Subdivision;
13.    330°    20’    4.84    feet along the southwest side of Fort Weaver Road;

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14.    328°    16’    411.84    feet along the southwest side of Fort Weaver Road to the point of beginning and containing a gross area of 5.495 acres, less Lot 2 of Laulani Ewa Subdivision, having a net area of 4.898 acres, more or less.
LOT 2
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 2 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the south corner of this parcel of land, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,189.48 feet south and 18,502.61 feet west, thence running by azimuths measured clockwise from true South:
1.    148°    16’    255.91    feet along Lot 1 of Laulani Ewa Subdivision;
2.    238°    16’    38.17    feet along Lot 1 of Laulani Ewa Subdivision;
3.    328°    16’    7.25    feet along Lot 1 of Laulani Ewa Subdivision;
4.    238°    16’    60.50    feet along Lot 1 of Laulani Ewa Subdivision;
5.    328°    16’    75.14    feet along Lot 1 of Laulani Ewa Subdivision;
6.    238°     16’    33.45    feet along Lot 1 of Laulani Ewa Subdivision;
7.    328°    16’    118.29    feet along Lot 1 of Laulani Ewa Subdivision;
8.    58°    16’    10.87    feet along Lot 1 of Laulani Ewa Subdivision;
9.     328°    16’    10.00    feet along Lot 1 of Laulani Ewa Subdivision;
10.     58°    16’    25.40    feet along Lot 1 of Laulani Ewa Subdivision;
11.    328°    16’    15.23    feet along Lot 1 of Laulani Ewa Subdivision;
12.    58°    16’    95.85    feet along Lot 1 of Laulani Ewa Subdivision to the point of beginning and containing an area of 0.597 acres, more or less.
LOT 3
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of

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James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 3 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the east corner of this parcel of land, being the east corner of Lot 4 of the Laulani Ewa Subdivision, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,249.99 feet south and 18,587.94 feet west, thence running by azimuths measured clockwise from true South:
1.    58°    16’    76.40    feet along lot 4 of Laulani Ewa Subdivision;
2.    148°    16’    165.25    feet along Lot 4 of Laulani Ewa Subdivision;
3.    58°    16’    55.77    feet along Lot 4 of Laulani Ewa Subdivision;
4.    148°    16’    72.00    feet along Lot 4 of Laulani Ewa Subdivision;
5.    238°    16’    85.00    feet along Lot 4 of Laulani Ewa Subdivision;
6.    148°    16’    16.50    feet along Lot 4 of Laulani Ewa Subdivision;
7.    238°    16’    47.17    feet along Lot 4 of Laulani Ewa Subdivision;
8.    328°    16’    253.75    feet along Lot 1 of Laulani Ewa Subdivision to the point of beginning and containing an area of 0.526 acres, more or less.
LOT 4
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 4 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the east corner of this parcel of land, being the south corner of Lot 1 of Laulani Ewa Subdivision, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,311.43 feet south and 18,460.12 feet west, thence running by azimuths measured clockwise from true South:
1.    58°    16’    246.77    feet along Lots 19586 and 19588 (Map 1547) of Land Court Application 1069;

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2.    148°    16’    90.76    feet along Lot 5 of Laulani Ewa Subdivision;
3.    238°    16’    9.84    feet along Lot 5 of Laulani Ewa Subdivision;
4.    148°    16’    375.65    feet along Lot 5 of Laulani Ewa Subdivision;
5.    58°    16’    41.41    feet along Lot 5 of Laulani Ewa Subdivision;
6.    148°    16’    104.96    feet along Lot 5 of Laulani Ewa Subdivision;
7.
Thence, along Lot 5 of Laulani Ewa Subdivision, on a curve to the left with a radius of 45.00 feet, the chord azimuth and distance being:
134°    39’ 30”     21.18    feet;
8.    121°    03’    119.52    feet along Lot 5 of Laulani Ewa Subdivision;
9.    211°    03’    31.00    feet along the southeast side of Keaunui Drive;
10.    301°    03’    66.62    feet along Lot 11 of Laulani Ewa Subdivision;
11.
Thence, along Lot 11 of Laulani Ewa Subdivision, on a curve to the right with a radius of 150.00 feet, the chord azimuth and distance being:
314°    39’ 30”    70.59    feet;
12.    328°    16’    92.93    feet along Lot 11 of Laulani Ewa Subdivision;
13.    238°    16’    263.34    feet along Lot 11 of Laulani Ewa Subdivision;
14.    328°    16’    118.41    feet along Lot 1 of Laulani Ewa Subdivision;
15.    58°    16’    47.17    feet along Lot 3 of Laulani Ewa Subdivision;
16.    328°    16’    16.50    feet along Lot 3 of Laulani Ewa Subdivision;
17.    58°    16’    85.00    feet along Lot 3 of Laulani Ewa Subdivision;
18.    328°    16’    72.00    feet along Lot 3 of Laulani Ewa Subdivision;
19.    238°    16’    55.77    feet along Lot 3 of Laulani Ewa Subdivision;
20.    328°    16’    165.25    feet along Lot 3 of Laulani Ewa Subdivision;
21.    238°    16’    76.40    feet along Lot 3 of Laulani Ewa Subdivision;
22.    328°    16’    119.48    feet along Lot 1 of Laulani Ewa Subdivision to the point of beginning and containing an area of 2.311 acres, more or less.

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LOT 5
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 5 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the east corner of this parcel of land, being the south corner of Lot 4 of Laulani Ewa Subdivision, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,441.00 feet south and 18,670.00 feet west, thence running by azimuths measured clockwise from true South:
1.    58°    16’    30.00    feet along Lot 19586 (Map 1547);
2.    148°    16’    29.82    feet along Lot 6 of Laulani Ewa Subdivision;
3.    102°    47’    98.37    feet along Lot 6 of Laulani Ewa Subdivision;
4.    58°    16’    10.47    feet along Lot 6 of Laulani Ewa Subdivision;
5.    148°    16’    185.98    feet along Lot 6 of Laulani Ewa Subdivision;
6.    238°    16’    25.87    feet along Lot 6 of Laulani Ewa Subdivision;
7.    148°    16’    221.76    feet along Lot 6 of Laulani Ewa Subdivision;
8.    238°    16’    38.18    feet along Lot 10 of Laulani Ewa Subdivision;
9.    148°    16’    36.44    feet along Lot 10 of Laulani Ewa Subdivision;
10.
Thence, along Lot 10 of Laulani Ewa Subdivision, on a curve to the left with a radius of 57.00 feet, the chord azimuth and distance being:
134°    39’    30”    26.82    feet;
11.    121°    03’    132.43    feet along Lot 10;
12.    211°    03’    25.00    feet along the southeast side of Keaunui Drive;
13.    301°    03’    119.52    feet along Lot 4 of Laulani Ewa Subdivision;
14.
Thence, along Lot 4 of Laulani Ewa Subdivision, on a curve to the right with a radius of 45.00 feet, the chord azimuth and distance being:

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314°    39’    30”    21.18    feet;
15.    328°    16’    104.96    feet along Lot 4 of Laulani Ewa Subdivision;
16.    238°    16’    41.41    feet along Lot 4 of Laulani Ewa Subdivision;
17.    328°    16’    375.65    feet along Lot 4 of Laulani Ewa Subdivision;
18.    58°    16’    9.84    feet along Lot 4 of Laulani Ewa Subdivision;
19.    328°    16’    90.76    feet along Lot 4 of Laulani Ewa Subdivision to the point of beginning and containing an area of 1.184 acres, more or less.
LOT 8
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 8 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the west corner of this parcel of land, along the southeast side of Keaunui Drive, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,293.60 feet south and 19,354.60 feet west, thence running by azimuths measured clockwise from true South:
1.    211°    03’    137.83    feet along the southeast side of Keaunui Drive;
2.    301°    03’    142.01    feet along Lot 6 of Laulani Ewa Subdivision;
3.    31°    03’    137.83    feet along Lot 6 of Laulani Ewa Subdivision;
4.    121°    03’    142.01    feet along Lot 7 of Laulani Ewa Subdivision to the point of beginning and containing an area of 0.449 acres, more or less.
LOT 9
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 9 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of

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Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the west corner of this parcel of land, along the southeast side of Keaunui Drive, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,149.81 feet south and 19,268.04 feet west, thence running by azimuths measured clockwise from true South:
1.    211°    03’    131.97    feet along the southeast side of Keaunui Drive;
2.    301°    03’    142.01    feet along Lot 10 of Laulani Ewa Subdivision;
3.    31°    03’    131.97    feet along Lot 6 of Laulani Ewa Subdivision;
4.    121°    03’    142.01    feet along Lot 6 of Laulani Ewa Subdivision to the point of beginning and containing an area of 0.430 acres, more or less.
LOT 10
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 10 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the west corner of this parcel of land, along the southeast side of Keaunui Drive, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,036.75 feet south and 19,199.97 feet west, thence running by azimuths measured clockwise from true South:
1.    211°    03’    140.07    feet along the southeast side of Keaunui Drive;
2.    301°    03’    132.43    feet along Lot 5 of Laulani Ewa Subdivision;
3.
Thence, along Lot 5 of Laulani Ewa Subdivision, on a curve to the left with a radius of 57.00 feet, the chord azimuth and distance being:
314°    39’    30”    26.82    feet;
4.    328°    16’    36.44    feet along Lot 5 of Laulani Ewa Subdivision;
5.    58°    16’    106.92    feet along Lots 5 and 6 of Laulani Ewa Subdivision;
6.    31°    03’    22.01    feet along Lot 6 of Laulani Ewa Subdivision;

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7.    121°    03’    142.01    feet along Lot 9 of Laulani Ewa Subdivision to the point of beginning and containing an area of 0.524 acres, more or less.
LOT 11
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 11 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the west corner of this parcel of land, along the southeast side of Keaunui Drive, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 17,868.78 feet south and 19,098.84 feet west, thence running by azimuths measured clockwise from true South:
1.    211°    03’    4.47    feet along the southeast side of Keaunui Drive;
2.
Thence, along the southeast side of Keaunui Drive, on a curve to the right with a radius of 500.00 feet, the chord azimuth and distance being:
225°    41’    30”    252.77    feet;
3.    240°    20’    58.77    feet along the southeast side of Keaunui Drive;
4.    328°    16’    134.17    feet along Lot 1 of Laulani Ewa Subdivision;
5.    238°    16’    1.00    feet along Lot 1 of Laulani Ewa Subdivision;
6.    328°    16’    141.57    feet along Lot 1 of Laulani Ewa Subdivision;
7.    58°    16’    263.34    feet along Lot 4 of Laulani Ewa Subdivision;
8.    148°    16’    92.93    feet along Lot 4 of Laulani Ewa Subdivision;
9.
Thence, along Lot 4 of Laulani Ewa Subdivision, on a curve to the left with a radius of 150.00 feet, the chord azimuth and distance being:
134°    39’    30”    70.59    feet;
10.    121°    03’    66.62    feet along Lot 4 of Laulani Ewa Subdivision to the point of beginning and containing an area of 1.691 acres, more or less.

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LOT 13
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 13 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the west corner of this parcel of land, being the south corner of Lot 12, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 17,768.74 feet south and 18,762.80 feet west, thence running by azimuths measured clockwise from true South:

1.    238°    16’    47.85    feet along Lot 12 of Laulani Ewa Subdivision;
2.    328°    16’    18.00    feet along lot 12 of Laulani Ewa Subdivision;
3.    238°    16’    82.50    feet along Lot 12 of Laulani Ewa Subdivision;
4.    148°    16’    18.00    feet along Lot 12 of Laulani Ewa Subdivision;
5.    238°    16’    31.35    feet along Lot 12 of Laulani Ewa Subdivision;
6.    328°    16’    129.18    feet along Lot 14 of Laulani Ewa Subdivision;
7.    58°    16’    161.70    feet along Lot 1 of Laulani Ewa Subdivision;
8.    148°    16’    129.18    feet along Lot 1 of Laulani Ewa Subdivision to the point of beginning and containing an area of 0.445 acres, more or less.
LOT 14
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 10 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:

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Beginning at the west corner of this parcel of land, along the southeast side of Keaunui Drive, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 17,567.36 feet south and 18,697.22 feet west, thence running by azimuths measured clockwise from true South:
1.    241°    57’    38”    72.05    feet along the southeast side of Keaunui Drive;
2.    240°    20’    191.64    feet along the southeast side of Keaunui Drive;
3.
Thence, along the southeast side of Keaunui Drive, on a curve to the right with a radius of 50.00 feet, the chord azimuth and distance being:
285°    20’    70.71    feet;
4.    330°    20’    277.72    feet along the southwest side of Fort Weaver Road;
5.    58°    16’    108.62    feet along Lot 1 of Laulani Ewa Subdivision;
6.    148°    16’    26.16    feet along Lot 1 of Laulani Ewa Subdivision;
7.    89°    49’    93.16    feet along Lot 1 of Laulani Ewa Subdivision;
8.    58°    16’    113.56    feet along Lot 1 of Laulani Ewa Subdivision;
9.    148°    16’    265.96    feet along Lots 13 and 12 of Laulani Ewa Subdivision to the point of beginning and containing an area of 2.054 acres, more or less.
Together with access over Roadway Access Lot 17684, as shown on Map 1356 of Land Court Application No. 1069, and Roadway Access Lot 16886-B, as shown on Map 1349 of Land Court Application No. 1069, and Roadway Access Lot 11252-B-2, as shown on Map 1355 of Land Court Application No. 1069, and thus have access to Fort Weaver Road, a public road, as set forth by Land Court Order No. 173440, filed January 16, 2008, as amended by Land Court Order No. 175930, filed August 13, 2008.
Note:
Lot 11252-B-2 has been deregistered from the Land Court System pursuant to Hawaii Revised Statutes Section 501 Part II and recorded in the Bureau of Conveyances of the State of Hawaii as Document No. A-46180590.
Together also with a non-exclusive easement over and across the Common Area of the Shopping Center for access and utility purposes, as granted by DECLARATION OF EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND dated May 30, 2012, filed as Land Court Document No. T-8199217, as amended and restated by instrument dated June 6, 2013, recorded as Document No. A-49050284, and further amended by instrument dated December 24, 2013, recorded as Document No. A-51290612; and subject to the terms and conditions contained therein.

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Together also with a non-exclusive easement for drainage purposes over and across Easements “8977” and “8978”, as shown on Map 1304 of Land Court Application No. 1069, as granted by GRANT OF NON-EXCLUSIVE DRAINAGE EASEMENTS, dated June 14, 2014, filed as Land Court Document No. T-8935076, recorded as Document No. A-52830508; and subject to the terms and provisions contained therein.
Together also with a non-exclusive easement for drainage purposes over and across Easements “10440,” as shown on Map 1525, “10423”, as shown on Map 1518, and “9664” as shown on Map 1408 of Land Court Application No. 1069, as granted by Grant of Non-Exclusive Drainage Easements dated April 8, 2014, by Gentry Homes, Ltd., as Grantor, and TRC Laulani Village, LLC, Property Development Centers LLC, City Mill Companies, Limited, and American Savings Bank, F.S.B., as Grantee, and Association of Apartment Owners of Laulani and Association of Apartment Owners of Laulani XXVI, as Other Parties, was recorded in the Land Court as Document No. T-8907092 on May 22, 2014.
Together also with a non-exclusive easement for access, drainage and utility purposes over and across Easements “10689,” as shown on Map 1549, “10688, “ as shown on Map 1548, “10684, “ as shown on Map 1547, “10685, “ as shown on Map 1547, “10686, “ as shown on Map 1547, and “10687”, as shown on Map 1547 of Land Court Application No. 1069, as granted by Grant of Non-Exclusive Access, Drainage and Utility Easements dated April 8, 2014, by and between Gentry Homes, Ltd., and TRC Laulani Village, LLC, as Grantor, and Association of Apartment Owners of Laulani, Property Development Centers LLC, City Mill Company, Limited, American Savings Bank, F.S.B., and TRC Laulani Village, LLC, as Grantee, was recorded in the Land Court as Document No. T-8906129 on May 21, 2014.
AS TO LOTS 1 THROUGH 5, 8 THROUGH 11, 13, AND 14:
BEING THE PREMISES ACQUIRED BY LIMITED WARRANTY DEED
GRANTOR:     PROPERTY DEVELOPMENT CENTERS LLC, a Delaware limited liability company
GRANTEE:    TRC LAULANI VILLAGE, LLC, a Delaware limited liability company
DATED:        effective December 24, 2013
RECORDED :    Document No. A-51060751

AS TO LOT 1:
Together with limited vehicle access rights for right-in and right-out egress and ingress to Fort Weaver Road over and across Boundary “1”, as granted by GRANT OF LIMITED VEHICLE ACCESS RIGHTS dated June 12, 2012, recorded as Document No. A-49540962; being more particularly described therein and subject to the terms and provisions contained therein.
AS TO LOTS 1, 4, 5 AND 8:

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Together with a non-exclusive easement for access purposes over Easement “A” (D.P.P. File No. 2011/SUB-36), as granted by QUITCLAIM NON-EXCLUSIVE EASEMENT (EASEMENT A) dated December 23, 2013, recorded as Document No. A-51360663A, and being more particularly described therein. Consent and Joinder by First Hawaiian Bank, a Hawaii corporation, dated --- (acknowledged December 30, 2013), recorded as Document No. A-51360663B.
AS TO LOTS 7 AND 8:
Together with a non-exclusive easement for access purposes over Easement “B” (D.P.P. File No. 2012/SUB-154), as granted by QUITCLAIM NON-EXCLUSIVE EASEMENT (EASEMENT B) dated December 23, 2013, recorded as Document No. A-51360664A, being more particularly described therein. Consent and Joinder by First Hawaiian Bank, a Hawaii corporation, acknowledged December 30, 2013), recorded as Document No. A-51360664B.

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EXHIBIT A-3
LEGAL DESCRIPTION FOR PAD G LAND
LOT 7
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Lot 17683, as shown on Map 1356 of Land Court Application No. 1069 of the Trustees of the Estate of James Campbell, deceased, having been deregistered and recorded as Document No. A-46180589) situate at Honouliuli, District of Ewa, City and County of Honolulu, State of Hawaii, being LOT 7 of the “LAULANI EWA SUBDIVISION”, as shown on map prepared by Ryan M. Suzuki, Land Surveyor, with R. M. Towill Corporation, dated August 27, 2012, approved by the Department of Planning and Permitting, City and County of Honolulu, 2012/SUB-154, on October 12, 2012, and thus bounded and described:
Beginning at the west corner of this parcel of land, along the southeast side of Keaunui Drive, the coordinates of said point of beginning referred to Government Survey Triangulation Station “KAPUAI NEW” being 18,241.25 feet south and 19,431.46 feet west, thence running by azimuths measured clockwise from true South:
1.    211°    03’    149.00    feet along the southeast side of Keaunui Drive;
2.    301°    03’    142.01    feet along Lot 8 of Laulani Ewa Subdivision;
3.    31°    03    10.01    feet along Lot 6 of Laulani Ewa Subdivision;
4.    346°    03’    90.37    feet along Lot 6 of Laulani Ewa Subdivision;
5.    76°    03’    53.03    feet along Lot 6 of Laulani Ewa Subdivision;
6.    108°    28’    172.56    feet along Lot 6 of Laulani Ewa Subdivision to the point of beginning and containing an area of 0.522 acre, more or less.
BEING THE PREMISES ACQUIRED BY LIMITED WARRANTY DEED
GRANTOR :    PROPERTY DEVELOPMENT CENTERS LLC, a Delaware limited liability company
GRANTEE:    LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company
DATED:        December 23, 2014
RECORDED :    Document No. A-54800245

Together with a non-exclusive easement for access purposes over Easement “A” (D.P.P. File No. 2011/SUB-36), as granted by QUITCLAIM NON-EXCLUSIVE EASEMENT (EASEMENT A) dated December 23, 2013, recorded as Document No. A-51360663A, and being more particularly described therein. Consent and Joinder by First Hawaiian Bank, a Hawaii corporation, dated --- (acknowledged December 30, 2013), recorded as Document No. A-51360663B.

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AND:
Together with a non-exclusive easement for access purposes over Easement “B” (D.P.P. File No. 2012/SUB-154), as granted by QUITCLAIM NON-EXCLUSIVE EASEMENT (EASEMENT B) dated December 23, 2013, recorded as Document No. A-51360664A, being more particularly described therein. Consent and Joinder by First Hawaiian Bank, a Hawaii corporation, acknowledged December 30, 2013), recorded as Document No. A-51360664B.
AND
Together also with a non-exclusive easement for drainage purposes over and across Easements “10440,” as shown on Map 1525, “10423”, as shown on Map 1518, and “9664” as shown on Map 1408 of Land Court Application No. 1069, as granted by Grant of Non-Exclusive Drainage Easements dated April 8, 2014, by Gentry Homes, Ltd., as Grantor, and TRC Laulani Village, LLC, Property Development Centers LLC, City Mill Companies, Limited, and American Savings Bank, F.S.B., as Grantee, and Association of Apartment Owners of Laulani and Association of Apartment Owners of Laulani XXVI, as Other Parties, was recorded in the Land Court as Document No. T-8907092 on May 22, 2014.
Together also with a non-exclusive easement for access, drainage and utility purposes over and across Easements “10689,” as shown on Map 1549, “10688, “ as shown on Map 1548, “10684, “ as shown on Map 1547, “10685, “ as shown on Map 1547, “10686, “ as shown on Map 1547, and “10687”, as shown on Map 1547 of Land Court Application No. 1069, as granted by Grant of Non-Exclusive Access, Drainage and Utility Easements dated April 8, 2014, by and between Gentry Homes, Ltd., and TRC Laulani Village, LLC, as Grantor, and Association of Apartment Owners of Laulani, Property Development Centers LLC, City Mill Company, Limited, American Savings Bank, F.S.B., and TRC Laulani Village, LLC, as Grantee, was recorded in the Land Court as Document No. T-8906129 on May 21, 2014.


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EXHIBIT A-4
LEGAL DESCRIPTION FOR PUUNENE LAND
All of the premises comprising a portion of that certain condominium project known as the “PUUNENE SHOPPING CENTER” Condominium Project” (the “Project”), consisting of that certain parcel of land situate at Puunene, District of Wailuku, Island and County of Maui, State of Hawaii, and the improvements and appurtenances thereto, all as described in and established by that certain Declaration of Condominium Property Regime of Puunene Shopping Center, dated November 8, 2013, recorded in the Bureau of Conveyances of the State of Hawaii as Document No. A-50600302, as the same has been and may hereafter be amended from time to time (the “Declaration”), and described as follows:
FIRST
Unit Nos. 2, 3, 4, and 5 of the Project as described in the Declaration and as shown on Condominium Map No. 5232, filed in the Bureau, as the same has been and may hereafter be amended from time to time (the “Condominium Map”).
Together with all easements described in the Declaration as being appurtenant to the Unit, including the following:
a.    The exclusive right to use those certain limited common elements of the Project which are appurtenant to the Unit as described in the Declaration and/or shown on the Condominium Map.
b.    Non-exclusive easements in the common elements designed for such purposes for ingress, egress, utility services for and support, maintenance, and repair of the Unit; in the other common elements and Units for use according to their respective purposes, all as more particularly described in the Declaration and/or as shown on the Condominium Map.
SECOND
An undivided 3.17% (as to Unit No. 2); 2.53% (as to Unit No. 3); 5.32% (as to No. 4); and 40.41% (as to Unit No. 5) in all common elements of the Project, including the land upon which the Project is located, as established for the Unit by the Declaration, or such other interest as may hereafter be established for the Unit by any amendment to the Declaration, as tenants in common with the other owners of Units in the Project, as declared and established by the Declaration.
The land upon which the Project is located is more particularly described as follows:
All of that certain parcel of land (being portion(s) of the land(s) described in and covered by Royal Patent Grant Number 3343 to Claus Spreckels) situate, lying and being at Puunene, District of Wailuku, Island and County of Maui, State of Hawaii, being LOT 2-C-4-C-1-A of the FIRST ASSEMBLY OF GOD SUBDIVISION, as shown on subdivision map dated May 28, 2008, last

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revised March 10, 2011, approved by the Department of Public Works, County of Maui, on May 31, 2011, corrected and accepted on May 18, 2012; and thus bounded and described:
Beginning at a pipe at the southwesterly corner of this lot, on the easterly side of Mokulele Highway (F.A.P. No. NH-0900(59)), said pipe being also the northwesterly corner of Lot 2-C-4-C-1-E of the First Assembly of God Subdivision, the coordinates of said point of beginning referred to Government Survey Triangulation Station “LUKE” being 2,889.63 feet south and 13,108.21 feet east and running by azimuths measured clockwise from True South:
1.    149°    00’    485.72    feet along the easterly side of Mokulele Highway (F.A.P. No. NH-0900(59)) to a pipe;
2.
Thence along the southerly side of Ho’okele Street on a curve to the right with a radius of 30.00 feet, the chord azimuth and distance being:
190°     30’    39.76    feet to a pipe;
3.    232°    00’    158.73    feet along the southerly side of Ho’okele Street to a pipe;
4.    228°    34’ 10”    100.28    feet along same to a pipe;
5.    232°    00’    1,218.61    feet along same to a pipe;
6.
Thence along Lot 2-C-4-C-1-B of the First Assembly of God Subdivision on a curve to the right with a radius of 30.00 feet, the chord azimuth and distance being:
277°    00’    42.43    feet to a pipe;
7.    322°    00’    69.57    feet to a pipe;
8
Thence along same on a curve to the right with a radius of 355.00 feet, the chord azimuth and distance being:
337°    45’    192.72    feet to a pipe;
9.     353°    30’    41.38    feet along lot 2-C-4-C-1-B of the First Assembly of God Subdivision to a pipe;
10.
Thence along same on a curve to the left with a radius of 500.00 feet, the chord azimuth and distance being:
343°    34’ 30”    172.36    feet to a pipe;
11.    333°    39’    408.87    feet along Lot 2-C-4-C-1-B of the First Assembly of God Subdivision to a pipe;
12.    65°    10’    1,086.34    feet along Lot 2-C-4-C-1-E of the First Assembly of God Subdivision to a pipe;

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13.    72°    30’    340.30    feet along same to the point of beginning and containing an area of 24.452 acres, more or less.
Together with a non-exclusive easement over and across Easement “D-5” for drainage purposes, as granted by GRANT OF DRAINAGE EASEMENT dated September 29, 2011, recorded as Document No. 2011-161644; being more particularly described therein and subject to the terms and conditions contained therein.
Together also with a non-exclusive easement over and across Easement “SA-1” for access purposes, as granted by GRANT OF ACCESS EASEMENT dated November 8, 2013, recorded as Document No. A-50600300; being more particularly described therein and subject to the terms and provisions contained therein.
Said parcels of land having been acquired by PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company, as follows:
8.
As to Unit No. 3:
LIMITED WARRANTY DEED of PDI, INC., a Delaware corporation, dated December 23, 2014, recorded as Document No. A-54800243; and
2.    As to Unit Nos. 2, 4, and 5:
LIMITED WARRANTY DEED of PROPERTY DEVELOPMENT CENTERS LLC, a Delaware limited liability company, dated December 23, 2014, recorded as Document No. A-54800244.


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EXHIBIT B-1
LEASE INFORMATION FOR PROPERTY RELATED TO HOKULEI LAND







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EXHIBIT B-2
LEASE INFORMATION FOR PROPERTY RELATED LAULANI LAND
















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EXHIBIT B-3
LEASE INFORMATION FOR PROPERTY RELATED PAD G LAND
NONE


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EXHIBIT B-4
LEASE INFORMATION FOR PROPERTY RELATED PUUNENE LAND





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EXHIBIT C
[Reserved]




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EXHIBIT D
[RESERVED]
 
 
 
 



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EXHIBIT E
[RESERVED]


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EXHIBIT F-1
TITLE COMMITMENT FOR PROPERTY RELATED TO HOKULEI LAND



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EXHIBIT F-2
TITLE COMMITMENT FOR PROPERTY RELATED TO LAULANI LAND





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EXHIBIT F-3
TITLE COMMITMENT FOR PROPERTY RELATED TO PAG G LAND


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EXHIBIT F-4
TITLE COMMITMENT FOR PUUNENE PROPERTY



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EXHIBIT G
FORM OF DEED
LAND COURT
REGULAR SYSTEM
 
Return By Mail
 
Pick-Up
 
To:

Attention: _____________________
Telephone: _____________________

 
TITLE OF DOCUMENT:
LIMITED WARRANTY DEED

PARTIES TO DOCUMENT:
GRANTOR:
[Grantor], a Delaware limited liability company
 
GRANTEE:
[A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company]
822 Bishop Street, Honolulu, Hawaii 96813
 
Tax Map Key (s): _________________ (This document consists of      pages.)

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LIMITED WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
THIS LIMITED WARRANTY DEED (this “Deed”) is made ________________________, 20___, by [Grantor], a Delaware limited liability company (the “Grantor”), in favor of _________________________________________, whose address is 822 Bishop Street, Honolulu, Hawaii 96813 (the “Grantee”).
Grantor, for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration to Grantor paid by Grantee, the receipt whereof is hereby acknowledged, does hereby grant, bargain, sell and convey unto the Grantee all of that certain real property more particularly described in Exhibit A attached hereto and made a part hereof, subject to the encumbrances noted on Exhibit A (the “Property”).
TOGETHER WITH all and singular the buildings, improvements, rights, tenements, hereditaments, easements, privileges and appurtenances thereunto belonging or appertaining or held and enjoyed in connection therewith.
TO HAVE AND TO HOLD the same unto Grantee in fee simple, forever.
AND the Grantor does hereby covenant with the Grantee that the granted premises are free and clear of all encumbrances made or suffered by the Grantor, except as noted in said Exhibit B, and except for assessments for real property taxes not yet by law required to be paid; and that the Grantor will WARRANT AND DEFEND the same unto the Grantee against the lawful claims and demands of all persons claiming by, through or under the Grantor, except as aforesaid.
The terms “Grantor” and “Grantee”, as and when used hereinabove or hereinbelow shall mean and include the masculine or feminine, the singular or plural number, individuals, associations, trustees, corporations, partnerships or limited liability companies, and their and each of their respective successors in trust, successors in interest, heirs, executors, personal representatives, administrators and permitted assigns, according to the context thereof, and that if these presents shall be signed by two or more grantors, or by two or more grantees, all covenants of such parties shall be and for all purposes deemed to be joint and several.
This instrument may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same instrument, binding all of the parties hereto, notwithstanding all of the parties are not signatory to the original of the same counterparts. For all purposes, including, without limitation, recordation, filing and delivery of this instrument, duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document.
The person or company recording or arranging for the recordation of this document is authorized to complete any blanks contained in this document with the applicable number of pages, dates, and recordation information, whether before or after this document has been notarized by a notary public, and in no event shall completion of such blanks be deemed an alteration of this document by means of the insertion of new content.
IN WITNESS WHEREOF, Grantor and Grantee have executed these presents as of the day and year first above written.

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GRANTOR:
[___________________]
By:
Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:                    
Name:                    
Title:                    


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 [CALIFORNIA NOTARY FORM]
 
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
 
 
 
 
STATE OF
____________________
)SS
COUNTY OF
____________________
)
 
On _____________ _____, 20__ before me, ______________________________, Notary Public, personally appeared ___________________as___________________ of [______________], who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
 
 
WITNESS my hand and official seal.
 
 
 
Signature
 
__________________________________
 
 
 
 
     This area for official notarial seal


 

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EXHIBIT A

LEGAL DESCRIPTION

Tax Map Key: _________
[TO BE INSERTED]


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EXHIBIT B
[TO BE INSERTED]


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EXHIBIT H
NOTICE TO TENANTS
__________________, 20__
Re:
[_______________________] (the “Property”)
This is to notify you that [TRC SPE], a [Delaware limited liability company] (“Owner”), has sold its interest in the property described above and in connection therewith has assigned its interest as landlord under your lease to [A & B PROPERTIES HAWAII, LLC, SERIES R], a Delaware limited liability company (“Purchaser”).
You are further notified that any refundable security deposits or any prepaid rents under your lease have been transferred to Purchaser.
Commencing as of                 , all rental payments under your lease shall be paid to Purchaser or as Purchaser shall direct. Please make your rent checks payable to Purchaser at the following address:

    
    
Any written notices you desire or are required to make to the landlord under your lease should hereafter be sent to Purchaser at the above address.
Very truly yours,
[SPE OWNER]
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:         
Name:      
Title:         




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EXHIBIT I
NOTICE TO PARTIES TO SERVICE CONTRACTS
__________________, 20__
Re:
[__________________] (the “Property”)
Dear Service Provider:
This is to notify you that [TRC SPE], a [Delaware limited liability company] (“Owner”), has sold its interest in the property described above to [A & B PROPERTIES HAWAII, LLC, SERIES R], a Delaware limited liability company (“Purchaser”), and in connection therewith has assigned its interest under your service contract to Purchaser. All notices to the owner of the Property pursuant to your service contract at the Property should be sent to Purchaser in the manner provided in the service contract to the following address:

    
    
    
Very truly yours,
[SPE OWNER]
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:         
Name:      
Title:         




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EXHIBIT J
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”), provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. For U.S. tax purposes (including Section 1445 of the Code), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform the transferee (i.e., A & B PROPERTIES HAWAII, LLC, SERIES R) that withholding of tax is not required upon the disposition of a U.S. real property interest by [TRC SPE], a [Delaware limited liability company] (“Transferor”), the undersigned hereby certifies the following on behalf of Transferor:
1.
Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Code and Income Tax Regulations);
2.
[Transferor is not a disregarded entity as defined in §1.1445-2(b)(2)(iii) of the Income Tax Regulations];
3.
Transferor’s U.S. employer identification number is [___________________]; and
4.
Transferor’s office address is in care of Terramar Retail Centers, LLC, 4695 MacArthur Court, Suite 700, Newport Beach, CA 92660.
Transferor understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of Transferor.
TRANSFEROR
[SPE OWNER]
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:         
Name:      
Title:         




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EXHIBIT K
RESERVED




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EXHIBIT L
FORM TENANT ESTOPPEL CERTIFICATE
[TRC SPE]
c/o Terramar Retail Centers, LLC 
4695 MacArthur Court, Suite 700
Newport Beach, CA 92660
Attention: Tom Kuehl 
A & B PROPERTIES HAWAII, LLC, SERIES R
c/o A&B Properties, Inc. 
822 Bishop Street 
Honolulu, Hawaii 96813
[ADD PURCHASER’S LENDER OR EXISTING LENDER (IF LOAN BEING ASSUMED), IF NECESSARY]
Re:
Lease described on Exhibit A (the “Lease”) between the undersigned (“Tenant”) and the Landlord named therein (“Landlord”) concerning the premises described therein (“Leased Premises”) located at the property generally described in Part C of Exhibit A (“Property”).
    
At the request of Landlord, made in connection with the proposed sale of the Property to the above named purchaser (“Purchaser”), the undersigned hereby certifies to Landlord, its successors and assigns, [and] Purchaser, [and the above named lender of Purchaser and/or Landlord] [any lender of Purchaser or Landlord] [(“Lender”)] [and to an as yet to be determined lender, and its successors, assigns, and participants [collectively, “Lender”] (“Lender”)], as follows:
1.    Except as shown on Part D of Exhibit A, the Lease is presently in full force and effect and the original Lease has not been amended, extended, supplemented or modified.
2.    The Lease represents the entire agreement between Tenant and Landlord with respect to the Leased Premises, the Property and the building of which the Leased Premises are a part.
3.    Except as disclosed in Part D of Exhibit A, Tenant is in sole possession of the Leased Premises and is occupying the Leased Premises and conducting business therein and Tenant has not entered into any assignment, sublease, hypothecation, leasehold mortgage or other agreement transferring or encumbering any of its interest in the Lease or the Leased Premises.
4.    The commencement and expiration dates of the current term of the Lease (which is the current option term, if applicable) and certain information concerning rent provisions under the Lease, as well as the approximate square footage of the Leased Premises, are set forth on Exhibit A. Minimum rent and additional rent, real estate taxes, common area maintenance costs contributions and charges and all other charges due under the Lease have been paid (subject to any reconciliation required under the Lease, if any) up to and including ____________, 20__. No rent or other charge or expense has been paid more than 30 days in advance of its due date.

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5.    The current amount of Tenant’s security deposit, if any, is as set forth on Part H of Exhibit A.
6.    Except as shown on Part K of Exhibit A, to the knowledge of the Tenant, Landlord has no unpaid obligations under the Lease.
7.    Except as shown on Part K of Exhibit A, neither Tenant nor, to Tenant’s best knowledge, Landlord is in default under any of the terms of the Lease, nor has any event occurred which with the passage of time or the giving of notice or both would constitute a default under the Lease. Except as shown on Part K of Exhibit A, Tenant has no claims, counterclaims, defenses or setoffs against Landlord arising under the Lease or in connection with the Leased Premises or the Property, and Tenant is not entitled to any concession, abatement, rebate, allowance or free or reduced rent for any period after the date hereof, except as set forth on Part K of Exhibit A.
8.    Except as shown on Part K of Exhibit A, possession of the Leased Premises has been delivered to Tenant, and Tenant has accepted the Leased Premises, occupies the Leased Premises and is open for business in the Leased Premises. Landlord has completed all construction required by the Lease and Landlord has no current obligation to pay for any Tenant finish, leasehold improvements or other construction. Further, all other conditions under the Lease to be performed by Landlord have been satisfied.
9.    Except as shown on Part K of Exhibit A, to Tenant’s best knowledge and belief, all space and improvements leased by Tenant have been completed in compliance with applicable laws and Tenant has received no notice of and has no knowledge of, any violation of any governmental law or requirement with respect to the Leased Premises or its operations.
10.    Except as shown on Part G of Exhibit A, Tenant does not have any right to renew or extend the Lease, or to terminate the Lease, or to expand or lease additional space, or any option or preferential right to purchase all or any part of or interest in the Leased Premises or the building of which the Leased Premises are a part, or the Property.
11.    The operation and use of the Leased Premises do not involve the generation, treatment, storage, disposal or release of a hazardous substance or a solid waste into the environment other than to the extent necessary to conduct its ordinary course of business in the Leased Premises and in accordance with all applicable environmental laws.
12.    There are no actions pending against Tenant or any guarantor of Tenant’s obligations under the Lease pursuant to bankruptcy, insolvency or other similar laws of any jurisdiction.
13.    All of the matters set forth herein and on Exhibit A are true and correct as of the date hereof.

IN WITNESS WHEREOF, Tenant has executed this Estoppel Certificate on this _______ day of __________________, 20__.

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Tenant:
[TO BE INSERTED]

    


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EXHIBIT A
Lease Document, Lease Terms, and Current Status
 
 
 
 
 
A.
Date of Lease:
_________________________________
B.
Parties:
_________________________________
 
 
 
1. Landlord:
_________________________________
 
2. Tenant:
_________________________________
 
DBA:
_________________________________
C.
Premises Known As:
_________________________________
 
 
_________________________________
 
 
Suite No:
_________________________________
 
 
D.
Amendments, Assignments, Subleases, and Encumbrances
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
E.
Rent Commencement Date (Current Term):
________________________________
 
 
F.
Expiration Date (Current Term):
________________________________
 
 
G.
Rights to Renew, to Terminate, to Rent Additional Space or Purchase any portion of the Shopping Center
 
 
H.
Security Deposit Currently Held by Landlord:
$
 
I.
Current Fixed Minimum Rent (Annual):
$
J.
Approx. Square Feet:
_________________________________
 
 
K.
Other Issues: (None unless listed Below)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
L.    FOR ULTA ESTOPPEL ONLY: Tenant agrees that, Planet Fitness or any other gym or fitness center falls within the meaning of the word “retailer” and “retail tenant” as such terms are used in the definition of Named Co-Tenants in Paragraph H of the Lease, the Co-Tenancy conditions in Section 2.3 of the Lease, and the exception of a 10,000 square foot or greater retailer from the massage exclusive in Section 5.4(a) of the Lease.

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EXHIBIT N-1
LIST OF PENDING LITIGATION FOR PROPERTY RELATED TO HOKULEI LAND
None





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EXHIBIT N-2
LIST OF PENDING LITIGATION FOR PROPERTY RELATED TO LAULANI LAND
None


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EXHIBIT N-3
LIST OF PENDING LITIGATION FOR PROPERTY RELATED TO PAD G LAND

None

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EXHIBIT N-4
LIST OF PENDING LITIGATION FOR PROPERTY RELATED TO PUUNENE LAND
None



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EXHIBIT O
BILL OF SALE
[TRC SPE], a [Delaware limited liability company] (“Seller”), in consideration of Ten and No/100 Dollars ($10.00), receipt of which is hereby acknowledged does hereby sell, assign and transfer to A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company (“Purchaser”), all of Seller’s right, title and interest in, to and under the Tangible Personal Property (as defined in that certain Purchase and Sale Agreement dated as of [______________] (the “Agreement”) by and between Seller and Purchaser) relating to that certain real property commonly known as [____________________] located at [_____________________]. Such sale, assignment and transfer does not include any of the Excluded Property (as defined in the Agreement).
This sale, assignment and transfer is made without representation, warranty or guaranty by, or recourse against, Seller of any kind whatsoever except that Seller warrants that it is the owner of the Tangible Personal Property, free and clear or any liens or other monetary encumbrances. Further, any implied warranties of quality, fitness or merchantability are hereby disclaimed.
The recourse of Purchaser against Seller, and its members, managers, officers, employees, agents and representatives, with respect to any alleged breach by or on the part of Seller of any representation, warranty, covenant, undertaking, indemnity or agreement contained in this Bill of Sale is subject to, and shall be limited as set forth in, the Agreement (including without limitation Section 9.2, Section 9.6 and Section 10 thereof).
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed as of the ________ day of _________________, 20__.
[SPE OWNER]
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:         
Name:      
Title:         




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EXHIBIT P-1
MATERIAL VIOLATION DISCLOSURES FOR PROPERTY RELATED TO HOKULEI LAND
NONE




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EXHIBIT P-2
MATERIAL VIOLATION DISCLOSURES FOR PROPERTY RELATED TO LAULANI LAND

NONE

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EXHIBIT P-3
MATERIAL VIOLATION DISCLOSURES FOR PROPERTY RELATED TO PAD G LAND
NONE


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EXHIBIT P-4
MATERIAL VIOLATION DISCLOSURES FOR PROPERTY RELATED TO PUUNENE LAND
NONE


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EXHIBIT Q
NOTICE TO PARTIES TO PROPERTY AGREEMENTS
__________________, 20__
Re:
[________________] (the “Property”)
This is to notify you that [TRC SPE], a [Delaware limited liability company] (“Owner”), has sold its interest in the property described above and in connection therewith has assigned its interest under that certain [                         dated              ] (the “Agreement”) to A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company (“Purchaser”).
You are further notified that any prepaid amounts under the Agreement have been transferred to Purchaser.
Commencing as of ________________, all payments under the Agreement shall be paid to Purchaser or as Purchaser shall direct. Please make your rent checks payable to Purchaser at the following address:
[PURCHASER TO PROVIDE]

Any written notices you desire or are required to make to under the Agreement should hereafter be sent to Purchaser at the above address.
Very truly yours,
[SPE OWNER]
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:         
Name:      
Title:         



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EXHIBIT R
ASSIGNMENT OF LEASES
[Recordable Format to be Used for Any Recorded Leases]
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this “Assignment”) is made and entered into as of                      (the “Effective Date”) by and between [TRC SPE], a [Delaware limited liability company] (“Assignor”), and A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company (“Assignee”).
RECITALS:
A.    Assignor and Assignee have heretofore entered into that certain Purchase and Sale Agreement dated as of (the “Purchase Agreement”), pursuant to which Assignor has agreed to sell to Assignee, and Assignee has agreed to purchase from Assignor, that certain real property commonly known as [__________________] located at [__________________________] (the “Property”).
B.    In connection with the transactions contemplated by the Purchase Agreement, Assignor has agreed to assign to Assignee all of its right, title and interest in, to and under all leases with respect to the Property, as more particularly described on the list attached hereto as Exhibit A (collectively, the “Leases”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows:
1.    Assignment. Effective as of the Effective Date, Assignor hereby assigns, transfers, conveys and sets over to Assignee all of Assignor’s right, title and interest in, to and under the Leases, including any security deposits held thereunder. Such assignment, transfer and conveyance does not include any of the Excluded Property (as defined in the Purchase Agreement).
2.    Acceptance. Assignee hereby accepts the assignment of the Leases and agrees to assume, keep, perform and fulfill all liabilities and obligations of the landlord under the Leases which accrue from and after the Effective Date.
3.    Indemnity. Assignee hereby agrees to indemnify and hold Assignor harmless from and against any claims, costs or liabilities in connection with Assignee’s breach of any of the Leases arising or accruing on or after the date hereof. Assignor agrees to indemnify and hold Assignee harmless from and against any claims, costs or liabilities in connection with Assignor’s breach of any of the Leases arising or accruing prior to and until (but not including) the date hereof.
4.    Exculpation of Assignor and Related Parties. The recourse of Assignee with respect to any alleged breach by or on the part of Assignor of any representation, warranty, covenant, undertaking, indemnity or agreement contained in this Assignment is subject to, and shall be limited as set forth in, the Purchase Agreement (including without limitation Section 9.2, Section 9.6 and Section 10 thereof).

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5.    Binding Effect. This Assignment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
6.    No Modification. This Assignment shall not be altered, amended or otherwise modified, except as set forth in a written document executed by the parties hereto.
7.    Governing Law. This Assignment and all questions arising in connection herewith shall be governed by and construed in accordance with the internal laws of the state where the Property is located. The parties hereto consent to the jurisdiction of the courts of the State of Hawaii and to the United States District Court for the State of Hawaii. In the event either party to this Assignment commences a legal action to enforce or interpret the provisions hereof, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred therein.
8.    Counterparts; .PDF Signatures. This Assignment may be executed in two or more counterparts, all of which shall be read together and be construed as one instrument. In order to expedite the transaction contemplated herein, .pdf signatures sent via e-mail may be used in place of original signatures on this Assignment. Assignor and Assignee intend to be bound by the signatures on the e-mailed document, are aware that the other party will rely on the e-mailed signatures, and hereby waive any defenses to the enforcement of the terms of this Assignment based on the form of signature.
[Signatures follow on next page]

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IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assignment as of the Effective Date.
ASSIGNOR:
[TRC SPE]
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:         
Name:      
Title:         

ASSIGNEE:
A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company
By:      
Name:      
Title:      



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EXHIBIT S
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT (this “Assignment”) is made and entered into as of [_______________________] (the “Effective Date”) by and between [TRC SPE], a [Delaware limited liability company] (“Assignor”), and A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company (“Assignee”).
RECITALS:
A.    Assignor and Assignee have heretofore entered into that certain Purchase and Sale Agreement dated as of [___________________] (the “Purchase Agreement”), pursuant to which Assignor has agreed to sell to Assignee, and Assignee has agreed to purchase from Assignor, that certain real property commonly known as [________________________] located at [___________________________] (the “Property”).
B.    In connection with the transactions contemplated by the Purchase Agreement, Assignor has agreed to assign to Assignee all of its right, title and interest, if any, in, to and under the maintenance, service, and other like contracts and agreements with respect to the ownership and operation of the Property or any portion thereof (excluding contracts affecting other properties in addition to the Property), as listed on Exhibit A attached hereto (collectively, the “Service Contracts”).
C.    In connection with the transactions contemplated by the Purchase Agreement, Assignor has agreed to assign to Assignee all of its right, title and interest, if any, in, to and under all intangible property, permits, licenses, approvals, guarantees and warranties benefiting or pertaining to the Property or any portion thereof, except for the Excluded Property (as defined in the Purchase Agreement) (collectively, the “Intangibles”).
D.    In connection with the transactions contemplated by the Purchase Agreement, Assignor has agreed to assign all of its right, title and interest, if any and to the extent assignable, in, to and under those documents listed on Exhibit B attached hereto (collectively, the “Other Agreements”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby covenant and agree as follows:
1.    Assignment. Effective as of the Effective Date, Assignor hereby assigns, transfers, conveys and sets over to Assignee all of Assignor’s right, title and interest, if any, in, to and under the Service Contracts, Intangibles and the Other Agreements. Such assignment, transfer and conveyance does not include any of the Excluded Property (as defined in the Purchase Agreement).
2.    Acceptance. Assignee hereby accepts the assignment of the Service Contracts, Intangibles and the Other Agreements, and agrees to assume, keep, perform and fulfill all liabilities

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and obligations of Assignor which accrue under the Service Contracts, Intangibles and the Other Agreements from and after the Effective Date.
3.    Indemnity. Assignee hereby agrees to indemnify and hold Assignor harmless from and against any claims, costs or liabilities in connection with Assignee’s breach of any of the Service Contracts, Intangibles or Other Agreements arising or accruing on or after the date hereof. Assignor agrees to indemnify and hold Assignee harmless from and against any claims, costs or liabilities in connection with Assignor’s breach of any of the Service Contracts, Intangible or Other Agreements arising or accruing prior to and until (but not including) the date hereof.
4.    Exculpation of Assignor and Related Parties. The recourse of Assignee with respect to any alleged breach by or on the part of Assignor of any representation, warranty, covenant, undertaking, indemnity or agreement contained in this Assignment is subject to, and shall be limited as set forth in, the Purchase Agreement (including without limitation Section 9.2, Section 9.6 and Section 10 thereof).
5.    Binding Affect. This Assignment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
6.    No Modification. This Assignment shall not be altered, amended or otherwise modified, except as set forth in a written document executed by the parties hereto.
7.    Governing Law. This Assignment and all questions arising in connection herewith shall be governed by and construed in accordance with the internal laws of the state where the Property is located. . The parties hereto consent to the jurisdiction of the courts of the State of Hawaii and to the United States District Court for the State of Hawaii. In the event either party to this Assignment commences a legal action to enforce or interpret the provisions hereof, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs incurred therein.
8.    Counterparts; .pdf Signatures. This Assignment may be executed in two or more counterparts, all of which shall be read together and be construed as one instrument. In order to expedite the transaction contemplated herein, .pdf signatures sent via e-mail may be used in place of original signatures on this Assignment. Assignor and Assignee intend to be bound by the signatures on the e-mailed document, are aware that the other party will rely on the e-mailed signatures, and hereby waive any defenses to the enforcement of the terms of this Assignment based on the form of signature.
[Signatures follow on next page]

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IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assignment as of the Effective Date.
ASSIGNOR:
[TRC SPE]
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:         
Name:      
Title:         

ASSIGNEE:
A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company
By:      
Name:      
Title:      




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EXHIBIT T

1031 ASSIGNMENT & ASSUMPTION AGREEMENT

ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment Agreement”) is entered into as of this ____ day of ________, 2017 (the “Effective Date,” which is one day prior to the Closing Date) by and among (i) A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company (“ABP”); (ii) T. G. EXCHANGE, INC., a Hawaii corporation (“TGX”); (iii) _______________________ (“__________”); and (iv) _______________________ (“__________”), and _______________________ (“__________”) (together, “Transferor”).
THE PARTIES ENTER INTO THIS ASSIGNMENT AGREEMENT on the basis of the following facts, understandings and intentions:
A.    ABP and Transferor entered into that certain Purchase and Sale Agreement with reference date ____________________ (as amended, and including addenda, the “Acquisition Agreement”), whereby, subject to certain terms and conditions, Transferor agreed to convey to ABP or its permitted assigns the real property located at _________________________ (the “Property”), as more particularly described in the Acquisition Agreement. Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Acquisition Agreement.
B.    TGX is acting as qualified intermediary for ABP.
C.    ____________________ is disregarded as separate from ABP for income tax purposes.
D.    As of the Effective Date, ABP desires to assign all of its right, title and interest in, to and under the Acquisition Agreement to TGX.
E.    On the Closing Date, TGX desires Transferor to convey the Property to ____________________; and ____________________ desires to accept such conveyance.
NOW THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties hereto’ the parties agree as follows:
1.Assignment by Assignor. As of the Effective Date, ABP shall and hereby does assign and transfer all of its right, title and interest in, to and under the Acquisition Agreement to TGX (as qualified intermediary for ABP). TGX shall and hereby does accept such assignment and assume and agree to perform all of ABP’s duties, obligations and responsibilities arising under the Acquisition Agreement. The foregoing assignments shall not release ABP from any liability under the Acquisition Agreement.

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2.Conveyance of Property. TGX shall and hereby does direct Transferor, on the Closing Date, to convey the Property to ____________________. Such conveyance shall not release ABP from any liability under the Acquisition Agreement.
3.    Consent by Transferor. As of the Effective Date, Transferor shall and hereby does consent to the foregoing assignment and assumption of the Acquisition Agreement and instructions regarding the conveyance of the Property.
4.    Benefit. This Assignment Agreement and all of the terms, covenants, and conditions hereof shall extend to the benefit of and be binding upon the respective successors and permitted assigns of the parties hereto.
5.    Modifications. This Assignment Agreement may not be amended modified or otherwise changed in any manner except in writing and executed by the parties to be charged.
6.    Miscellaneous. This Assignment Agreement shall be governed and construed in accordance with the laws of the State in which the Property is located. Any liability which may arise as a consequence of the execution of this Assignment by any entity that is party hereto shall be a liability of such entity and not the personal liability any officer, director, shareholder or employee of such entity or any affiliate thereof. This Assignment Agreement may be executed in counterparts and delivered by fax machine, as a PDF attached to an email, or by other electronic transmission, and each counterpart so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and the counterparts together shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement as of the day and year first above written.

 
ABP:
 
A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company

By: __________________________________
Name:
Title:

By: __________________________________
Name:
Title:
 
____________________:
 
____________________,
a ____________________
    
     By: _______________________________
     Name:
     Title:
     
     By: _______________________________
     Name:
     Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGES]

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TGX:
 
T. G. EXCHANGE, INC.,
a Hawaii corporation

By: __________________________________
Name:
Title:

By: __________________________________
Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

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Transferor:
 
____________________,
a ____________________

By: __________________________________
Name:
Title:
 
____________________,
a ____________________

By: __________________________________
Name:
Title:



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EXHIBIT U

1031 ASSIGNMENT & RELEASE AGREEMENT

ASSIGNMENT AND RELEASE AGREEMENT
THIS ASSIGNMENT AND RELEASE AGREEMENT (this “Release Agreement”) is entered into as of this ____ day of ________, 2017 (the “Effective Date,” which is one day after the Closing Date) by and among (i) T. G. EXCHANGE, INC., a Hawaii corporation (“TGX”); (ii) A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company (“ABP”), and _______________________ (“__________”) (together, the “ABP Entities”); and (iii) _______________________, and _______________________ (together, “Transferor”).
THE PARTIES ENTER INTO THIS ASSIGNMENT AND RELEASE AGREEMENT on the basis of the following facts, understandings and intentions:
A.    ABP and Transferor entered into that certain Purchase and Sale Agreement with reference date ______________ (as amended, and including addenda, the “Acquisition Agreement”), whereby, subject to certain terms and conditions, Transferor agreed to convey to ABP or its permitted assigns the real property located at __________________________ (the “Property”), as more particularly described in the Acquisition Agreement. Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Acquisition Agreement.
B.    Pursuant to that certain Assignment and Assumption Agreement dated as of ________ ____, 2017 (the “Assignment Agreement”), ABP assigned all of its right, title and interest in, to and under the Acquisition Agreement to TGX. TGX assumed and accepted ABP’s obligations arising under the Acquisition Agreement, but directed that the Property be conveyed to __________________. Transferor consented to the assignment and instructions regarding the conveyance of the Property.
C.    The Property was transferred to ___________________ pursuant to the Acquisition Agreement (as assigned).
D.    TGX now desires to reassign to the ABP Entities any remaining representations, warranties, indemnities, covenants, liabilities and obligations which survive the date of closing of escrow and transfer of the Real Property (the “Closing”).
NOW THEREFORE, IN CONSIDERATION of the mutual covenants and promises of the parties hereto, the parties agree as follows:
1.    Assignment by TGX. As of the Effective Date, TGX shall and hereby does reassign and transfer to the ABP Entities all of its right, title and interest in, to and under each of the representations, warranties, indemnities, covenants, liabilities and obligations in the Acquisition Agreement which by their terms survive the Closing; and the ABP Entities hereby assume the same.

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2.    Consent and Release of Assignor. As of the Effective Date, Transferor shall and hereby does (a) consent to the foregoing assignment and (b) release TGX of and from any and all obligations TGX may now have or may in the past have had or in the future may have towards Transferor arising under or in connection with the Acquisition Agreement. This Release Agreement does not release the ABP Entities from any liability under the Acquisition Agreement.
3.    Benefit. This Release Agreement and all of the terms, covenants, and conditions hereof shall extend to the benefit of and be binding upon the respective successors and permitted assigns of the parties hereto.
4.    Modifications. This Release Agreement may not be amended, modified or otherwise changed in any manner except in writing and executed by the parties to be charged.
5.    Miscellaneous. This Release Agreement shall be governed and construed in accordance with the laws of the State in which the Real Property is located. Any liability which may arise as a consequence of the execution of this Assignment by any entity that is party hereto shall be a liability of such entity and not the personal liability of any officer, director, shareholder or employee of such entity or any affiliate thereof. This Release Agreement may be executed in counterparts and delivered by fax machine, as a PDF attached to an email, or by other electronic transmission, and each counterpart so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and the counterparts together shall constitute one and the same instrument.
[SIGNATURES PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto have executed this Release Agreement as of the day and year first above written.
 
TGX:

 
T. G. EXCHANGE, INC.,
a Hawaii corporation


By: __________________________________
Name:
Title:


By: __________________________________
Name:
Title:



[SIGNATURES CONTINUE ON FOLLOWING PAGES]

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ABP:

 
A & B PROPERTIES HAWAII, LLC, SERIES R
a series of a Delaware limited liability company


By: __________________________________
Name:
Title:


By: __________________________________
Name:
Title:


 
____________________:

 
____________________,
a ____________________


    
     By: _______________________________
     Name:
     Title:

     
     By: _______________________________
     Name:
     Title:


[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

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Transferor:

 
____________________,
a ____________________


By: __________________________________
Name:
Title:

 
____________________,
a ____________________


By: __________________________________
Name:
Title:

 



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EXHIBIT V
FORM OF ASSIGNMENT OF DECLARANT RIGHTS

   


Return by Mail ( ) Pickup ( x ) To:
 
   This document contains _____ pages
Tax Map Key Nos.             

 
ASSIGNMENT AND ASSUMPTION OF [DECLARANT, DEVELOPER] RIGHTS
THIS ASSIGNMENT AND ASSUMPTION OF [DECLARANT, DEVELOPER] RIGHTS (“Assignment”) is made effective as of             , 20 (“Effective Date”), by and between [TRC SPE], a [Delaware limited liability company] whose address is ____________________________________ (“Assignor”), and [A & B PROPERTIES HAWAII, LLC, a Delaware limited liability company], whose address is 822 Bishop Street, Honolulu, Hawaii 96813 (“Assignee”).
RECITALS.
A.    Assignor and Assignee have heretofore entered into that certain Purchase and Sale Agreement dated as of (the “Purchase Agreement”), pursuant to which Assignor has agreed to sell to Assignee, and Assignee has agreed to purchase from Assignor, that certain real property commonly known as [__________________] located at [__________________________] (the “Property”).
B.    Assignor is the [“Declarant,” “Developer,” etc.] under that certain [Declaration, REA, etc.] dated as of         , and [filed / recorded] in the [Office of the Assistant Registrar of the Land Court of the State of Hawaii / Bureau of Conveyances of the State of Hawaii] as Document No.          [(the “Declaration”) (the “REA”) etc.]
C.    By this Assignment, Assignor, as the [Declarant, Developer, etc.] under the [Declaration, REA, etc.], desires to assign and transfer to Assignee, and Assignee agrees to assume, all of the rights, privileges, powers, interests and obligations of the [Declarant, Developer, etc.] under the [Declaration, REA, etc.].
NOW THEREFORE, for and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the following:
1.Assignor hereby assigns and transfers to Assignee all of the rights, privileges, powers, interests and obligations of the [Declarant, Developer, etc.] under the [Declaration, REA, etc.].
2.Assignee hereby assumes all of the rights, privileges, powers, interests and obligations of the [Declarant, Developer, etc.] under the [Declaration, REA, etc.] and covenants to and with Assignor that Assignee shall observe and perform the rights, privileges, powers, interests and obligations of the [Declarant, Developer, etc.] in accordance with the terms thereof.
3.Assignee hereby agrees to indemnify and hold Assignor harmless from and against any claims, costs or liabilities in connection with Assignee’s breach of any of the [Declaration, REA, etc.] arising or accruing on or after the date hereof. Assignor agrees to indemnify and hold Assignee harmless from and against any claims, costs or liabilities in connection with Assignor’s breach of any of the [Declaration, REA, etc.] arising or accruing prior to and until (but not including) the date hereof.

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4.The recourse of Assignee against Assignor, and its members, managers, officers, employees, agents and representatives, with respect to any alleged breach by or on the part of Assignor of any representation, warranty, covenant, undertaking, indemnity or agreement contained in this Assignment is subject to, and shall be limited as set forth in, the Purchase Agreement (including without limitation Section 9.2, Section 9.6 and Section 10 thereof).
5.This Assignment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
6.The parties hereto agree that this instrument may executed in counterparts, each of which shall be deemed an original and said counterparts shall together constitute one and the same agreement binding all of the parties hereto notwithstanding all of the parties are not signatory to the original or the same counterparts. For all purposes, including without limitation, recordation, filing and delivery of this instrument, duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document.
[Signatures on the following page]

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IN WITNESS WHEREOF, the undersigned have executed this instrument effective as of the Effective Date.
ASSIGNOR:
[TRC SPE]
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By:         
Name:      
Title:         

ASSIGNEE:
[A & B PROPERTIES HAWAII, LLC,
a Delaware limited liability company]


By:      
Name:       
Title:       

By:      
Name:      
Title:      


“Assignee”

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[CALIFORNIA NOTARY FORM]
 
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
 
 
 
STATE OF
____________________
)SS
COUNTY OF
____________________
)
 
On _____________ _____, 20__ before me, ______________________________, Notary Public, personally appeared ___________________as___________________ of [______________], who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
 
 
WITNESS my hand and official seal.
 
 
 
Signature
 
__________________________________
 
 
 
 
     This area for official notarial seal



 
 
 

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STATE OF HAWAII

CITY AND COUNTY OF HONOLULU
)
)
)
ss.
On ______________ before me personally appeared ____________________________, to me personally known, who, being by me duly sworn or affirmed, did say that such person executed the foregoing instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity.
        
Type or print name:
Notary Public, State of Hawaii
My commission expires:
(Official Stamp or Seal)

NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Assignment and Assumption of
[Declarant, Developer] Rights

¨ Doc. Date: ___________________ or ¨ Undated at time of notarization
No. of Pages: ___ Jurisdiction: First Circuit
   (in which notarial act is performed)
      
Signature of Notary Date of Notarization and
         Certification Statement

           (Official Stamp or Seal)
Printed Name of Notary



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STATE OF HAWAII

CITY AND COUNTY OF HONOLULU
)
)
)
ss.
On ______________ before me personally appeared ____________________________, to me personally known, who, being by me duly sworn or affirmed, did say that such person executed the foregoing instrument as the free act and deed of such person, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity.
        
Type or print name:
Notary Public, State of Hawaii
My commission expires:
(Official Stamp or Seal)

NOTARY CERTIFICATION STATEMENT
Document Identification or Description: Assignment and Assumption of
[Declarant, Developer] Rights

¨ Doc. Date: ___________________ or ¨ Undated at time of notarization
No. of Pages: ___ Jurisdiction: First Circuit
   (in which notarial act is performed)
      
Signature of Notary Date of Notarization and
         Certification Statement

           (Official Stamp or Seal)
Printed Name of Notary






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EXHIBIT W
FORM OF GUARANTY
This Guaranty (“Guaranty”) is entered into as of _________________________ by TERRAMAR RETAIL CENTERS, LLC, a Delaware limited liability company (“Guarantor”) in favor of A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company, and [insert names of Purchaser Designees] (individually and collectively, “Purchaser”) with reference to the following:
WHEREAS, A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company and Guarantor’s subsidiaries, HOKULEI VILLAGE, LLC, a Delaware limited liability company, TRC LAULANI VILLAGE, LLC, a Delaware limited liability company, LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company and PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company (individually and collectively, “Seller”) entered into that certain Purchase and Sale Agreement dated November ______, 2017 (the “Agreement”), regarding Purchaser’s acquisition of three shopping centers owned by Seller located in the State of Hawaii (the “Properties”); and
WHEREAS, Guarantor will directly or indirectly benefit from Purchaser’s purchase of the Properties pursuant to the Agreement; and
WHEREAS, pursuant to Section 10.2 of the Agreement, Seller agreed to at closing under the Agreement (“Closing”) deliver Guarantor’s guaranty of Seller’s payment of Seller’s debts, obligations or liabilities to Purchaser that arise after Closing pursuant to or in connection with the representations, warranties, indemnifications, covenants or other obligations of Seller under the Agreement or any document of conveyance executed by Seller or delivered to Purchaser by Seller in connection with Closing (the “Post-Closing Obligations”).
NOW THEREFORE, in consideration of the foregoing premises and as an inducement for Purchaser’s execution, delivery and performance of the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor hereby agrees as follows:
1.Guarantor unconditionally guarantees to Purchaser Seller’s full and punctual payment of all of the Post-Closing Obligations, provided that Guarantor’s total liability under this Guaranty shall not exceed Ten Million Dollars ($10,000,000.00) (the “Liability Limitation”). The Liability Limitation under this Guaranty shall be reduced by the amount of any payments Purchaser receives from Seller or the Holdback Account established under Section 10.1 of the Agreement.
2.    Purchaser’s right to enforce this Guaranty shall survive for only twelve (12) months from and after the Closing (the “Survival Period”). No claim by Purchaser against Guarantor under this Guaranty shall be actionable or payable unless written notice containing a description of the specific nature of such claim shall have been given to Guarantor prior to the expiration of the Survival Period and an action shall have been commenced in a court having

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jurisdiction within forty-five (45) days after the expiration of the Survival Period, in which case Guarantor’s obligations hereunder with respect to such action shall survive until such action is fully and finally resolved.
3.    Until the expiration of the Survival Period, Guarantor shall maintain net assets, determined in accordance with generally accepted accounting principles, of no less than TWO HUNDRED MILLION DOLLARS ($200,000,000.00) (the “Net Assets Requirement”). If at any time during the Survival Period Guarantor does not meet the Net Assets Requirement, Guarantor shall immediately deposit in the Holdback Account established under Section 10.1 of the Agreement Nine Million Dollars ($9,000,000), which amount shall become part of the Holdback Amount and shall be held and disbursed in accordance with Section 10.1 of the Agreement. For purposes of verifying compliance with the Net Assets Requirement, Guarantor shall, throughout the Survival Period, provide Purchaser with Guarantor’s unaudited quarterly financial statements within sixty (60) days after the end of each calendar quarter.
4.    The liability of Guarantor hereunder shall be primary and joint and several with Seller. Guarantor waives notice of any breach or default by Seller. If, at any time, default shall be made by Seller in the payment of any Post-Closing Obligations, Guarantor shall promptly on demand pay to Purchaser the Post-Closing Obligations then-due. If any right of action shall accrue to Purchaser under the Agreement with respect to the Post-Closing Obligations, Purchaser may, at Purchaser’s option, proceed against Guarantor without having commenced any action or having obtained any judgment against Seller.
5.    Any act of Purchaser, or the successors or assigns of Purchaser, consisting of a waiver of any of the terms, covenants, conditions or agreements of the Agreement, or the granting of any indulgences or extensions of time to Seller, may be done without notice to Guarantor and without releasing or otherwise affecting the obligations of Guarantor hereunder.
6.    Intentionally Omitted.
7.    The liability of Guarantor hereunder shall in no way be affected by (a) the release or discharge of Seller in any creditors’, receivership, bankruptcy or other proceedings, (b) the impairment, limitation or modification of the liability of Seller or the estate of Seller in bankruptcy, or any remedy for the enforcement of Seller’s said liability under the Agreement resulting from the operation of any present or future provision of the U.S. Bankruptcy Code or other statutes or from the decisions of any court, (c) the rejection or disaffirmance of the Agreement in any such proceedings; (d) the assignment or transfer of the Agreement by Seller, (e) any disability or other defense of Seller, or (f) the cessation from any cause whatsoever of the liability of Seller except satisfaction of the Post-Closing Obligations.
8.    Until all of the Post-Closing Obligations are fully discharged, Guarantor (a) shall have no right of subrogation against Seller by reason of any payments or acts or performance by Guarantor in compliance with the obligations of Guarantor hereunder, (b) waives any right to enforce any remedy which Guarantor now or hereafter shall have against Seller by reason of any one or more payments or acts of performance in compliance with the obligations of Guarantor hereunder, and (c) subordinates any liability or indebtedness of Seller now or hereafter held by

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Guarantor to the obligations of Seller to the Purchaser under the Agreement; provided, however, that nothing contained herein shall prohibit Seller from making capital distributions to Guarantor.
9.    Guarantor hereby (a) consents to any amendments, modifications, extensions or renewals of the Agreement and (b) waives notice of any such amendments, modifications, extensions or renewals.
10.    The Guarantor shall pay all costs and expenses, including reasonable attorneys’ fees, incurred by Purchaser in enforcing the obligations of Seller hereby guaranteed or the obligations of Guarantor hereunder.
11.    This instrument shall be governed by the laws of the State of Hawaii.
12.    Guarantor hereby irrevocably submits to the jurisdiction of the Circuit Court of the First Circuit of the State of Hawaii and the Federal District Court for the District of Hawaii.
13.    Guarantor and Purchaser by accepting this Guaranty hereby waive their right to trial by jury in any action proceeding or counterclaim brought in connection with this Guaranty or the Agreement.
14.    Guarantor shall not take any action the sole purpose of which is to avoid liability under this Guaranty.
15.    All notices, requests, demands or other communications required or permitted under this Guaranty shall be in writing and delivered personally or by certified mail, return receipt requested, postage prepaid, or by overnight courier (such as Federal Express), addressed as follows below. All notices given in accordance with the terms hereof shall be deemed given when received or upon refusal of delivery. Either party hereto may change the address for receiving notices, requests, demands or other communication by notice sent in accordance with the terms of this Section.

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If to Guarantor:
Terramar Retail Centers, LLC 
4695 MacArthur Court, Suite 700
Newport Beach, CA 92660
Attention: Tom Kuehl
Telephone: (949) 662-2122


With a copy to:
Barack Ferrazzano Kirschbaum & Nagelberg LLP
200 West Madison Street, Suite 3900
Chicago, Illinois 60606
 
Attention: Chuck Picton, Esq. 
Telephone: (312) 629-5133
If to Purchaser:
c/o A&B Properties Hawaii, LLC Series R  
822 Bishop Street 
Honolulu, Hawaii 96813
Attention: Jeff Pauker
Telephone: (808) 525-6611

With a copy to:
A&B Properties Hawaii, LLC Series R  
822 Bishop Street 
Honolulu, Hawaii 96813
Attention: General Counsel
Telephone: (808) 525-6611

With a copy to:
Cades Schutte LLP
1000 Bishop Street, 12
th Floor
Honolulu, Hawaii 96813
Attention: Richard Kiefer, Esq.
Telephone: (808) 521-9200
    
16.    This instrument may not be changed, modified, discharged or terminated orally or in any other manner other than by an agreement in writing signed by Guarantor and Purchaser.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first written above.
TERRAMAR RETAIL CENTERS, LLC
By         
Name:

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Title:

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SCHEDULE 1.4
TANGIBLE PERSONAL PROPERTY


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SCHEDULE 1.7
OTHER AGREEMENTS
1.
Those two (2) certain AIA Document A102 – 2007 Standard Form of Agreements Between Owner and Contractor by and between Puunene Seller, as owner, and Maryl Group Construction, Inc., as contractor, including all amendments thereto, concerning the development of the Puunene Shopping Center.
2.
That certain AIA Document A102 – 2007 Standard Form of Agreement Between Owner and Contractor by and between Puunene Seller, as owner, and Maryl Group Construction, Inc., as contractor, including all amendments thereto, regarding the Ulta space build-out at Puunene.
3.
All contracts between Puunene Seller and any architects, engineers or other design professionals or contractors in connection with the work covered by the contracts listed above to be identified by Seller within seven (7) days of the Effective Date.




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SCHEDULE 2.1
PURCHASE PRICE ALLOCATION

Seller and Purchaser agree that the Purchase Price is allocated as follows for purposes of this Agreement:

1.    $124,000,000.00 is allocated to the Laulani Land and the Pad G Land, collectively, the Improvements thereon, and all related assets.

2. $70,000,000.00 is allocated to the Hokulei Land, the Improvements thereon, and all related assets.

3.    $68,500,000.00 is allocated to the Puunene Land, the Improvements thereon, and all related assets.

For purposes of calculations of State of Hawaii conveyance tax the parties agree to further allocate each such amounts among the separate Tax Map Key parcels that comprise each of the shopping centers.


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SCHEDULE 2.2
LEASING & CONSTRUCTION CREDITS



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SCHEDULE 4.1(n)
DECLARATIONS AND R.E.A.s
No.
Property
Document/Agreement
Counterparty
1.
Puunene Shopping Center
Operation and Easement Agreement
Dated: November 8, 2013
Document No.: A-50600305
Parties: Target Corporation, Property Development Centers LLC, and PDC I, Inc.
“Party” – Target Corporation, a Minnesota corporation
Operator” -            (if any)
2.
Laulani
Amended and Restated Declaration of Easements with Covenants and Restrictions Affecting Land
Dated: June 6, 2013
Document No.: A-49050284
Parties: Property Development Centers LLC, a Delaware limited liability company and Safeway Inc., a Delaware corporation
“Owner” - (1) American Savings Bank, F.S.B., a federal savings bank , and (2) City Mill Company, Limited, a Hawaii corporation
“Maintenance Director” – Property Development Centers LLC, a Delaware limited liability company is the initial Maintenance Director under the original Declaration
Safeway Inc., a Delaware corporation
3.
Laulani
Amended and Restated Infrastructure Plan dated and effective October 19, 2011, by and between Gentry Homes, Ltd., a Hawaii corporation and Property Development Centers, LLC, a Delaware limited liability company
 
(1) Gentry Homes, Ltd., a Hawaii corporation 
4.
Hokulei Village
Exhibit “D” (Reciprocal Easement Agreement) to Declaration of Condominium Property Regime of Hokulei Village


(1) Grove Farm Properties, Inc., a Hawaii corporation
(2) American Savings Bank, F.S.B., a federal savings Bank

5.
Hokulei Village
Exhibit “E” (Restrictive Agreement Affecting Revised Phase 2 Land) to Declaration of Condominium Property Regime of Hokulei Village
(1) Grove Farm Properties, Inc., a Hawaii corporation
(2) Safeway, Inc., a Delaware corporation


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6.
Puunene Shopping Center
Declaration of Condominium Property Regime
(1) Target Corporation
(2) Association of Unit Owners
7.
Puunene Shopping Center
Site Development Agreement dated November 8, 2013
(8)    Target Corporation



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SCHEDULE 8.1
DUE DILIGENCE DOCUMENTS
Those documents, reports and agreements related to the Property delivered, or otherwise made available, to Purchaser on or before the Effective Date.



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SCHEDULE 9.3.1
APPROVED NEW LEASES

PUUNENE LAND
JERSEY MIKE’S
HAWAII STATE FEDERAL CREDIT UNION
STARBUCKS
FORK & SALAD
LAULANI LAND & PAD G LAND
NONE
LAULANI LAND & PAD G LAND
NONE
HOKULEI LAND
TWO MOTHERS MONTESSORI




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SCHEDULE 9.3.6
PERMITTED ACTIONS
Amendment of the Safeway Inc. lease at the Hokulei Land to increase the “monthly rent” payable thereunder to $155,437.00 per month, effective no later than the Closing Date.

 


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FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
Hokulei Village, Lihue, HI
Laulani Village, Ewa Beach, HI
Pad G, Ewa Beach, HI
Puunene Shopping Center, Kahului, HI

This First Amendment to Purchase and Sale Agreement (this “Agreement”) is made and entered into as of the ___18th__ day of ______December____, 2017, by and between HOKULEI VILLAGE, LLC, a Delaware limited liability company (with respect to the Hokulei Land and other Property directly related thereto, “Hokulei Seller”), TRC LAULANI VILLAGE, LLC, a Delaware limited liability company (with respect to the Laulani Land and other Property directly related thereto, “Laulani Seller”), LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company (with respect to the Pad G Land and other Property directly related thereto, “Pad G Seller”) and PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company (with respect to the Puunene Land and other Property directly related thereto, “Puunene Seller”; together with Hokulei Seller, Laulani Seller and Pad G Seller, “Seller”), and A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company (“Purchaser”).
Recitals
WHEREAS, Seller and Purchaser entered into that certain Commercial Real Property Purchase and Sale Agreement dated November 22, 2017 (“PSA”), for the sale and purchase of the above-referenced properties (collectively, the “Property”); and
WHEREAS, the parties hereto desire to amend the PSA as provided herein.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser hereby agree as follows:
1.Due Diligence Period.  Under Section 8.1 of the PSA, the end of the Due Diligence Period shall be changed from 5:00 p.m., Hawaii-Aleutian Standard Time, on December 18, 2017, to 5:00 p.m., Hawaii-Aleutian Standard Time, on December 19, 2017.
2.Counterparts; Signatures.  This Agreement may be executed in any number of counterparts and by each of the undersigned on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts put together shall constitute but one and the same Agreement. Signatures to this Agreement transmitted by .pdf, electronic mail or other electronic means shall be treated as originals in all respects for purposes of this Agreement.
[Signature Page to Follow]
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of the day and year first above written.

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SELLER:
HOKULEI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member

By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO

TRC LAULANI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO
LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company

By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO

PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO



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PURCHASER:
A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company
By: /s/ Charles W. Loomis
Name: Charles W. Loomis
Title: Assistant Secretary
company

By: /s/ Jeff Pauker
Name: Jeffrey Pauker
Title: Vice President
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
Hokulei Village, Lihue, HI
Laulani Village, Ewa Beach, HI
Pad G, Ewa Beach, HI
Puunene Shopping Center, Kahului, HI

This Second Amendment to Purchase and Sale Agreement (this “Agreement”) is made and entered into as of the __19__ day of __December____, 2017, by and between HOKULEI VILLAGE, LLC, a Delaware limited liability company (with respect to the Hokulei Land and other Property directly related thereto, “Hokulei Seller”), TRC LAULANI VILLAGE, LLC, a Delaware limited liability company (with respect to the Laulani Land and other Property directly related thereto, “Laulani Seller”), LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company (with respect to the Pad G Land and other Property directly related thereto, “Pad G Seller”) and PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company (with respect to the Puunene Land and other Property directly related thereto, “Puunene Seller”; together with Hokulei Seller, Laulani Seller and Pad G Seller, “Seller”), and A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company (“Purchaser”).
Recitals
WHEREAS, Seller and Purchaser entered into that certain Commercial Real Property Purchase and Sale Agreement dated November 22, 2017, which was amended by First Amendment to Purchase and Sale Agreement dated December 18, 2017 (collectively “PSA”), for the sale and purchase of the above-referenced properties (collectively, the “Property”); and
WHEREAS, the parties hereto desire to amend the PSA as provided herein.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser hereby agree as follows:

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3.Due Diligence Period.  Under Section 8.1 of the PSA, the end of the Due Diligence Period shall be changed from 5:00 p.m., Hawaii-Aleutian Standard Time, on December 19, 2017, to 5:00 p.m., Hawaii-Aleutian Standard Time, on December 20, 2017.
4.Counterparts; Signatures.  This Agreement may be executed in any number of counterparts and by each of the undersigned on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts put together shall constitute but one and the same Agreement. Signatures to this Agreement transmitted by .pdf, electronic mail or other electronic means shall be treated as originals in all respects for purposes of this Agreement.
[Signature Page to Follow]
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of the day and year first above written.

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SELLER:
HOKULEI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member

By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO

TRC LAULANI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO
LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company

By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO

PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO



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PURCHASER:
A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company
By: /s/ Charles W. Loomis
Name: Charles W. Loomis
Title: Assistant Secretary
company

By: /s/ Jeff Pauker
Name: Jeffrey Pauker
Title: Vice President


THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
Hokulei Village, Lihue, HI
Laulani Village, Ewa Beach, HI
Pad G, Ewa Beach, HI
Puunene Shopping Center, Kahului, HI

This Third Amendment to Purchase and Sale Agreement (this “Agreement”) is made and entered into as of the __20___ day of ___December____, 2017, by and between HOKULEI VILLAGE, LLC, a Delaware limited liability company (with respect to the Hokulei Land and other Property directly related thereto, “Hokulei Seller”), TRC LAULANI VILLAGE, LLC, a Delaware limited liability company (with respect to the Laulani Land and other Property directly related thereto, “Laulani Seller”), LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company (with respect to the Pad G Land and other Property directly related thereto, “Pad G Seller”) and PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company (with respect to the Puunene Land and other Property directly related thereto, “Puunene Seller”; together with Hokulei Seller, Laulani Seller and Pad G Seller, “Seller”), and A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company (“Purchaser”).
Recitals
WHEREAS, Seller and Purchaser entered into that certain Commercial Real Property Purchase and Sale Agreement dated November 22, 2017, which was amended by First Amendment to Purchase and Sale Agreement dated December 18, 2017 and Second Amendment to Purchase and Sale Agreement dated December 19, 2017 (as amended, the “PSA”), for the sale and purchase of the above-referenced properties (collectively, the “Property”); and
WHEREAS, the parties hereto desire to amend the PSA as provided herein.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser hereby agree as follows:

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5.Due Diligence Period.  Under Section 8.1 of the PSA, the end of the Due Diligence Period shall be changed from 5:00 p.m., Hawaii-Aleutian Standard Time, on December 20, 2017, to 5:00 p.m., Hawaii-Aleutian Standard Time, on December 22, 2017.
6.Ratifications.  This Agreement, and all terms, provisions, conditions and exhibits contained in the PSA, are hereby ratified, and shall be deemed in full force and effect, except as specifically herein amended.
7.Counterparts; Signatures.  This Agreement may be executed in any number of counterparts and by each of the undersigned on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts put together shall constitute but one and the same Agreement. Signatures to this Agreement transmitted by .pdf, electronic mail or other electronic means shall be treated as originals in all respects for purposes of this Agreement.
[Signature Page to Follow]
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of the day and year first above written.

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SELLER:
HOKULEI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member

By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO

TRC LAULANI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO
LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company

By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO

PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO



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PURCHASER:
A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company
By: /s/ Jeff Pauker
Name: Jeff Pauker
Title:Vice President
company

By: /s/ Charlie Loomis
Name: Charlie Loomis
Title: Asst. Secretary

FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT

This Fifth Amendment to Purchase and Sale Agreement (this “Amendment”) is made and entered into as of December __28___, 2017, by and between HOKULEI VILLAGE, LLC, a Delaware limited liability company (with respect to the Hokulei Land and other Property directly related thereto, “Hokulei Seller”), TRC LAULANI VILLAGE, LLC, a Delaware limited liability company (with respect to the Laulani Land and other Property directly related thereto, “Laulani Seller”), LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company (with respect to the Pad G Land and other Property directly related thereto, “Pad G Seller”) and PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company (with respect to the Puunene Land and other Property directly related thereto, “Puunene Seller”; together with Hokulei Seller, Laulani Seller and Pad G Seller, “Seller”), and A & B PROPERTIES HAWAII, LLC, SERIES R, a series of a Delaware limited liability company (“Purchaser”).
Recitals
WHEREAS, Seller and Purchaser entered into that certain Commercial Real Property Purchase and Sale Agreement dated November 22, 2017, as amended by First Amendment to Purchase and Sale Agreement dated December 18, 2017, Second Amendment to Purchase and Sale Agreement dated December 19, 2017, Third Amendment to Purchase and Sale Agreement dated December 20, 2017, and Fourth Amendment to Purchase and Sale Agreement dated December 21, 2017 (as amended, the “Agreement”), for the sale and purchase of the above-referenced properties (collectively, the “Property”); and
WHEREAS, the parties hereto desire to amend the Agreement as provided herein to (a) address issues identified during the Due Diligence Period and (b) document certain commitments by Seller made to induce Purchaser to issue the partial Notice of Acceptance set forth below.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser hereby agree as follows:

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8.Defined Terms.  All capitalized terms used in this Amendment but not otherwise defined shall have their same meanings as set forth in the Agreement and Section references refer to Sections of the Agreement except as otherwise expressly provided.
9.Addition of Units H and K to the Hokulei Land. The description of the Hokulei Land set forth in Exhibit A-1 to the Agreement is deleted and replaced with the new Exhibit A-1 attached hereto.
10.Service Contracts. The agreed schedule of Service Contracts pursuant to Section 1.5 is attached hereto as Schedule 1.5. Purchaser has elected to assume all of the Service Contracts at Closing.
11.Schedule of Intangibles. For avoidance of doubt, the Intangibles as defined in Section 1.6 shall include, without limitation, the warranties listed on Schedule 1.6 attached hereto, which shall be assigned to Purchaser at Closing by the General Assignment.
12.Other Agreements. The agreed schedule of Other Agreements pursuant to Section 1.7 is attached hereto as Schedule 1.7.
13.Excluded Property. Purchaser and Seller agree that the Excluded Property as defined in Section 1 shall also include the contracts listed on Schedule 1.8 attached hereto and all of Seller’s obligations thereunder (“Excluded Contracts”). Seller hereby indemnifies, protects, defends and holds Purchaser and the Purchaser Indemnified Parties harmless from and against any and all Losses that any or all of Purchaser or the Purchaser Indemnified Parties actually suffers and incurs as a result of claims asserted against them with respect to the Excluded Contracts. The Floor Amount shall not apply to Seller’s indemnification obligation under this paragraph.
14.Disapproved Title and Survey Exceptions For the Laulani, Pad G and Puunene Land. Prior to Closing Seller shall perform all of its commitments in Seller’s December 13, 2017, responses to Purchaser’s Notices of Disapproved Title and Survey Exceptions regarding the Laulani and Pad G Land and the Puunene Land, respectively; provided, however, Seller’s failure to do so shall not be a default hereunder or under the Agreement. Without limiting the effectiveness of the Notice of Acceptance provided by Purchaser hereunder with respect to the Laulani Land, the Pad G Land and the Puunene Land, and all of the other Property associated with each of the foregoing, solely with respect to such Property, the deadline for Purchaser to exercise its right to terminate the Agreement pursuant to Section 3.2 shall be January 5, 2018 and Section 3.2 shall otherwise remain unmodified.
15.Additional Credits to Purchaser. As an inducement to Purchaser to issue the partial Notice of Acceptance set forth below, Seller has agreed to provide Purchaser a credit against the Purchase Price in the amount of Five Hundred Three Thousand and No/100 Dollars ($503,000.00), which amount is net of an offsetting credit in the amount of $313,826.00 in favor of Seller for landlord work at Hokulei. The reduction in the Purchase Price at Closing under Section 2 shall include such credit. For the avoidance of doubt, after reducing the Purchase Price as contemplated in Section 8 of this Amendment and Section 2, the credits accounting for such reductions shall no longer be applicable.
16.Partial Notice of Acceptance. Pursuant to Section 8.1, and in consideration of and reliance on the commitments by Seller set forth in this Amendment, Purchaser hereby gives Notice of Acceptance with respect to the Laulani Land, the Pad G Land and the Puunene Land, and all of the other Property associated with each of the foregoing. Without limiting the generality of the foregoing, Seller shall indemnify Purchaser for the actual, documented Entitlement Costs (as hereinafter defined), up to a maximum amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) (the “Entitlement Costs Cap”), incurred by Purchaser during the eighteen (18) month

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period commencing on the Closing Date solely with respect to the following matters and matters related thereto (collectively, “Entitlement Compliance”):
(a)submission to the Hawaii Land Use Commission (“LUC”) of the status report required under the LUC’s order approving the land use District Boundary Amendment for the Laulani Land, and receipt of confirmation from the LUC or its executive director that the Laulani Land is in compliance with all conditions on the LUC’s approval; and
(b)submission to the City & County of Honolulu Department of Planning & Permitting (“DPP”) of the status report required under the conditional zoning for the Laulani Land, and receipt of confirmation from DPP that the Laulani Land is in compliance with the conditions on its zoning (excluding only Condition No. 6’s requirement that a 12’ road widening easement along Fort Weaver Road be dedicated).
(c)written confirmation from appropriate governmental authorities that all off-site improvements required to be dedicated under the Amended & Restated Infrastructure Plan on title to the Laulani Land are acceptable for dedication.
(d)with respect to the Hokulei Land, dedication of Lots 1546-H and 1546-K by dedication deed to the County of Kauai, Hawaii as contemplated by the subdivision map approved by the Land Court of the State of Hawaii with respect to Land Court Application 1087 (amended).
(e)dedication of Lot 1516 Kolopa Street Extension as shown on Map 122 of Land Court Application 1087 (amended), by dedication deed to the County of Kauai, Hawaii.
Purchaser shall provide Seller with a reasonable estimate of the Entitlement Costs within the twelve (12) month period commencing on the Closing Date (the “Estimated Entitlement Costs”). Notwithstanding anything to the contrary contained in the Agreement, Seller and Purchaser agree that the Estimated Entitlement Costs, up to the Entitlement Costs Cap, not indemnified by Seller pursuant to and in accordance with Section 9 of this Amendment on or before expiration of the Survival Period, if any (“Entitlement Holdback Amount”), shall remain in the Holdback Account for the six (6) month period commencing on the expiration of the Survival Period (“Entitlement Holdback Period”). The foregoing shall not limit the release of the portion of the Holdback Amount in excess of the Entitlement Holdback Amount in accordance with the Agreement at expiration of the Survival Period. The Entitlement Holdback Amount shall be held and released in accordance with Section 10.1 of the Agreement, except that the deadline for release of the Entitlement Holdback Amount shall be the expiration of the Entitlement Holdback Period, not expiration of the Survival Period.
As a condition precedent to Seller’s obligation to indemnify Purchaser under Section 9 of this Amendment, within forty-five (45) days of incurring Entitlement Compliance Entitlement Costs, Purchaser shall deliver to Seller the following related thereto: invoices, W-9, documentation reasonably satisfactory to Seller demonstrating that such costs are required by a governmental authority related to the applicable Entitlement Compliance matter, and any other evidence reasonably required by Seller with respect to evidencing the Entitlement Costs incurred by Purchaser for which Purchaser seeks indemnification from Seller pursuant to Section 9 of this Amendment (the “Supporting Information”). If Purchaser fails to timely deliver the Supporting Information, it shall be deemed to have waived its right to indemnification related to such Entitlement Costs and any other rights or remedies it may have under this Amendment and the Agreement related thereto. Purchaser acknowledges and agrees that, notwithstanding anything to the contrary contained herein or in the Agreement, Seller’s indemnification obligation under and in accordance with Section 9 of

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this Amendment shall be Seller’s sole obligation to Purchaser with respect to Entitlement Compliance, and Purchaser hereby waives any other Losses Purchaser or Purchaser Indemnified Parties suffers and incurs as a result of Entitlement Compliance. For purposes of Section 9 of this Amendment, “Entitlement Costs” shall mean solely the aggregate sums, up to the Entitlement Costs Cap, of physical improvements to the Property performed by any contractor, subcontractors and other material suppliers for labor and materials in connection with Entitlement Compliance provided that in all instances such costs are required by governmental authorities with respect to Entitlement Compliance, including but not limited to, contractor costs, and site work, and, solely to the extent directly related to the physical improvements required by governmental authorities with respect to Entitlement Compliance, “soft costs,” such as inspections, architecture and engineering fees and permit costs. In no event shall Entitlement Costs (including, without limitation, any “soft costs” related thereto) include marketing costs, entitlement/permit consulting or expediter fees, or legal, court and/or attorney fees. Purchaser’s Notice of Acceptance specifically excludes the Hokulei Land and the other Property associated therewith, which shall be subject to Section 10 of this Amendment.
17.Limited Extension of Due Diligence Period. The Due Diligence Period is extended, with respect to the Hokulei Land and the other Property associated with it until 5:00 p.m., Hawaii-Aleutian Standard Time, on January 5, 2018. As soon as reasonably possible Seller shall deliver to Purchaser (a) an updated Preliminary Title Commitment and Survey for the Hokulei Land, including the lots added thereto by this Amendment, (b) final drafts of all additional documents affecting the Hokulei Land that Seller proposes to record prior to or in connection with Closing, and (c) any other new agreements regarding the Hokulei Land, if any, that would be binding on Purchaser after Closing. Prior to the end of the extended Due Diligence Period Seller and Purchaser shall endeavor to enter into an amendment of the Agreement that shall (i) identify other agreements, if any, that Purchaser shall assume or be bound by at Closing with respect to the Hokulei Land, (ii) amend Schedule 4.1(n) to identify any additional declarations, easements or other agreements pertaining to the Hokulei Land to be assigned to Purchaser at Closing, (iii) identify the Counterparty Estoppel Certificates relating to the Hokulei Land, delivery of which will be conditions precedent to Closing to the extent required under Section 8.3, (iv) define the terms and conditions of any “gap closing” or “bulk closing” required to accommodate Seller’s proposed recordings at Closing, and (v) such other terms pertaining to the Hokulei Land as Purchaser may require. The failure of Seller and Purchaser to enter into such an amendment prior to the end of the extended Due Diligence Period shall not be a default by Seller hereunder or under the Agreement. If a “bulk closing” is required and, as a result, Purchaser is required to deposit the balance of the Purchase Price more than two business days before Closing, Purchaser shall be entitled to a credit at Closing in an amount equal to $26,250 for each additional calendar day the full Purchase Price is held in escrow, provided that such credit shall not exceed a total of $262,500. If during the extended Due Diligence Period the parties reach agreement on such an amendment (or Purchaser waives such requirement) and Purchaser determines (in its sole and absolute discretion) that it is otherwise satisfied with Hokulei Land’s title, then prior to the end of the extended Due Diligence Period Purchaser may give Seller Notice of Acceptance with respect to the Hokulei Land, whereupon the parties shall proceed to close this transaction, on and subject to the terms and conditions of

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the Agreement, as amended hereby. If Purchaser does not give Seller Notice of Acceptance regarding the Hokulei Land prior to the end of the extended Due Diligence Period, Purchaser shall be deemed to have terminated this Agreement, whereupon Escrow Agent shall promptly refund the Earnest Money to Purchaser, and neither party shall have any further rights or obligations under this Agreement or the ROE except those which expressly survive termination of this Agreement or the ROE. Notwithstanding the extension of Due Diligence as described in Section 10 of this Amendment, Purchaser shall deliver the Additional Earnest Money under Section 2.1 to Escrow Holder no later than January 2, 2018. For avoidance of doubt, this limited extension of the Due Diligence Period shall not be deemed to extend the now-expired deadlines for Seller to enter into New Leases, Service Contracts or Property Agreements without Purchaser’s consent under Sections 9.3.1, 9.3.2 and 9.3.5, respectively. Subject to Purchaser’s right to review and approve agreements related thereto in accordance with the Agreement, Purchaser confirms that it approves the plan related to Section 8.8 of the Agreement (as amended by this Amendment), as outlined on Schedule 8.8, and Seller and Purchaser shall use commercially reasonable efforts to finalize the agreements described on Schedule 8.8 prior to 5:00 p.m., Hawaii-Aleutian Standard Time, on January 5, 2018.
18.Termination of Hokulei CPR. Section 8.8 of the Agreement is hereby amended and restated as follows: “Purchaser’s obligation to close is contingent on recording by Closing of the documents necessary to (i) terminate the existing condominium affecting the Hokulei Land, and (ii) vest fee simple title in Lots 1546-A through 1546-F, and Lot 1546-H and Lot 1546-K, as shown on Map 201, filed with Land Court Application 1087 in the Hokulei Seller.”
19.Additional Conditions Precedent to Closing. The following new subsections are added to Section 8:
8.12.     Puunene Punch List Completion. Seller shall have prior to Closing completed or caused to be completed the work listed on Schedule 8.12 attached hereto, or delivered to Purchaser a revised punch list including such work acknowledged by Contractor as to be completed under the existing scope of its contracts or otherwise at no cost in excess of the amounts of its contracts.
8.13.    Puunene Petco Lease Amendment. Seller shall have delivered a fully-executed amendment to Petco’s lease that attaches missing Exhibits D & E, defines the “commencement date” for purposes of the lease, and confirms there is no rent reset based on measured size of the building.

8.14    Safeway Hokulei Lease Amendment and Waiver. (a) Seller and Safeway Inc. shall have (a) executed a lease amendment acceptable to Purchaser amending the “monthly rent” payable under Safeway Inc.’s lease effective prior to Closing, and (b) Seller shall have received acknowledgement from Safeway waiving any lease violation arising from Seller’s lease to Domino’s Pizza. If the monthly rent under such amendment is less than $155,437.00 per month, a credit shall be added to Schedule 2.2 in an amount equal to a 5% cap rate on the negative variance; provided, however, if no such amendment is entered into prior to Closing, Purchaser shall not receive a credit related thereto.


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8.15    Laulani McDonalds Estoppel Certificate. Seller shall have received an estoppel certificate from McDonalds at the Laulani Land certifying without exception Seller’s compliance with its obligations under McDonalds’ lease.
20.Additional Seller Covenants. The following new subsections are added to Section 9.3:
9.3.7    Warranty Assignments. Seller shall use commercially reasonably efforts to secure any consents or approvals required for the assignment to Purchaser of the warranties listed on Schedule 1.6, at Seller’s expense. This commitment shall survive Closing.
9.3.8    Deide Hokulei Completion. Seller shall cause the lien-free completion of the ongoing landlord’s work at Hokulei Suites 40-409, 509-510 & 523. This commitment shall survive Closing.

21.Intentionally Omitted.
22.Approval of Construction Counterparty Estoppel Certificates. Seller confirms that it has approved Purchaser’s proposed Counterparty Estoppel Certificates submitted pursuant to Section 8.3 with respect to the Laulani Land and the Puunene Land, and Purchaser’s proposed Construction Counterparty Estoppel Certificates submitted pursuant to Section 8.4 with Maryl Construction and MGA. Purchaser waives the requirement under Section 8.4 that Seller deliver Construction Counterparty Estoppel Certificates under Section 8.4 from the counterparties listed on Schedule 1.7 other than Maryl Construction and MGA.
23.Loan Assumption. Purchaser and Seller agree that if the fees and costs owing to the Lender by Purchaser in connection with the Loan Assumption pursuant to Section 11.20 exceed $100,000.00, Purchaser may, except as set forth herein, elect to terminate the Agreement, whereupon the Earnest Money shall be returned to Purchaser and neither party shall have any further obligations under this Agreement except for obligations that expressly survive termination; provided, however, (i) such right to terminate shall not apply if Purchaser attempts to renegotiate the terms and conditions of the Loan Documents or otherwise attempts to assume the Loan Documents on anything other than an “as-is” basis; and (ii) in the event Purchaser elects to exercise such option to terminate the Agreement in accordance with Section 16 of this Amendment, Seller shall have the right, but not the obligation, to override such election by electing to pay such amounts in excess of $100,000 at Closing in which event Purchaser’s election to terminate the Agreement shall be of no force and effect and the Earnest Money shall continue to be held by Escrow Agent in accordance with the Agreement. Purchaser and Seller shall use commercially reasonable efforts in negotiating with Lender to minimize applicable fees and costs.
24.Further Assurances. Upon Purchaser’s request after Closing, Seller agrees to, at no material cost or liability to Seller, take such actions as are reasonably necessary or convenient to implement or complete the assignment or transfer of the Property to Purchaser, to transfer to Purchaser any other permits, rights, agreements or other property incidental to the ownership or operation of the Property that are identified after Closing, and/or to effectuate the purpose and intent of the Agreement.
25.Attachments. The following schedules and exhibits attached to this Amendment are incorporated herein and in the Agreement by this reference:
Amended Exhibit A-1 - Description of the Hokulei Land

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Schedule 1.5 - Service Contracts
Schedule 1.6 - Warranties
Schedule 1.7 - Other Agreements
Schedule 1.8 - Excluded Contracts
Schedule 8.8 - Termination of Hokulei CPR
Schedule 8.12 - Puunene Punch List

26.Ratifications.  The Agreement, and all terms, provisions, conditions and exhibits contained in the Agreement, are hereby ratified, and shall be deemed in full force and effect, except as specifically herein amended.
27.Counterparts; Signatures.  This Agreement may be executed in any number of counterparts and by each of the undersigned on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts put together shall constitute but one and the same Agreement. Signatures to this Agreement transmitted by .pdf, electronic mail or other electronic means shall be treated as originals in all respects for purposes of this Agreement.
[Signature Page to Follow]
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement as of the day and year first above written.

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SELLER:
HOKULEI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member

By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO

TRC LAULANI VILLAGE, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO
LAULANI VILLAGE PAD G, LLC, a Delaware limited liability company

By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO

PUUNENE SHOPPING CENTER, LLC, a Delaware limited liability company
By: Terramar Retail Centers, LLC, a Delaware limited liability company, its Sole Member
By: /s/ Tim Pettit
Name: Tim Pettit
Title: CFO



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PURCHASER:
A & B PROPERTIES HAWAII, LLC, SERIES R, a Delaware limited liability company
By: /s/ Jeff Pauker
Name: Jeff Pauker
Title:Vice President, Investments
company

By: /s/ Rick Stack
Name: Rick Stack
Title: Senior Vice President

Amended Exhibit A-1-3
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Amended Exhibit A-1-1
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Amended Exhibit A-1
Description of the Hokulei Land

FIRST:-
UNITS A, B, C, D, E, F, H and K listed in Exhibit "B-1" of the Condominium Project known as "HOKULEI VILLAGE" as established by Declaration of Condominium Property Regime dated December 11, 2014 filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Land Court Document No. T-9111280 and as shown on Condominium Map No. 2267, filed in said Office, and any amendments thereto.
Together with those easements appurtenant to said Unit as established by and described in the Declaration, which may including the following:
(A)
Exclusive easement(s) to use the limited common elements of the Project which are described in said Declaration as being appurtenant to the Unit, if any.
(B)
Non-exclusive easements in the common elements, including the limited common elements, if any, and in the Project, designed for such purposes as ingress to , egress from, utility services for and support, and as necessary, for the maintenance and repair of the Unit; in the other common elements for use according to their respective purposes, subject always to the exclusive use of the limited common elements as provided in the Declaration; subject to the provision of Section 514B-38 of the Act.
(C)
In the case of encroachments by the Unit upon the common elements or upon any other unit, a valid easement for such encroachment and the maintenance thereof, so long as it continues, shall exist. In the event that a unit shall be partially or totally destroyed and the rebuilt, or in the event of any shifting, settlement or movement of any part of the Project, encroachments of any part of the common elements, units

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or limited common elements due to such construction, shifting, settlement or movement shall be permitted, and valid easements for such encroachments and the maintenance there of shall exist for so long as such encroachment continues.
Excepting and reserving and subject to all easements as provided in the Declaration, including, but not limited to, (i) easements for encroachments appurtenant to other units or the common elements as they arise in the manner set forth above, now or hereafter existing thereon, (ii) easements for access to the Unit or any limited common appurtenant thereto from time to time during reasonable hours as may be appropriate for the operation or maintenance of the Project or, without notice, at any time for (a) making emergency repairs therein necessary to prevents damage to any unit or common element, (b) abating any nuisance or any dangerous, unauthorized, prohibited or unlawful activity, (c) protecting the property rights of any owner, or (d) preventing death or serious bodily injury to any owner or other occupant therein, and (iii) easements necessary to complete the Project, for noise and dust, to conduct sales activities upon the Project, and to subdivide or consolidate units of the Project, all as provided in the Declaration.
-SECOND:-
Undivided 61.95% fee simple interests in all common elements of the Project as established by the Declaration, including the land described in said Declaration, or such other interest as hereafter established for the Unit by any amendment of the Declaration, as tenant in common with the holders of other undivided interests in and to said common elements.
The land upon which said Condominium Project "HOKULEI VILLAGE" is located is described as follows:
All of that certain parcel of land situate at Lihue, District of Puna, Island and County of Kauai, State of Hawaii, described as follows:
LOT 1546, area 22.818 acres, more or less, as shown on Map 141, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii with Land Court Application 1087 (amended) of Grove Farm Company, Limited;
Together with access over Lot 1542 to Kaumualii Highway, a public road, as set forth by Land Court Order No. 131986, filed July 8, 1998.
Together also with vehicle access rights over and across Boundary 27 as granted by EXCHANGE OF VEHICLE ACCESS RIGHTS dated September 23, 2010, filed as Document No. 4010164; being more particularly described therein and subject to the terms and provisions contained therein.
Together also with a non-exclusive easement for access and underground utility purposes, as granted by GRANT OF EASEMENT KOLOPA STREET EXTENSION (Vehicular Access and Utilities) dated April 26, 2013, filed as Land Court Document No. T-8527332;

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subject to the terms and provisions contained therein.
Being land(s) described in Transfer Certificate of Title No. 1,090,432 issued to HOKULEI VILLAGE LLC, a Delaware limited liability company.
BEING THE PREMISES ACQUIRED BY LIMITED WARRANTY DEED AND TRANSFER OF DEVELOPER RIGHTS
GRANTOR :    PROPERTY DEVELOPMENT CENTERS LLC, a Delaware limited liability company

GRANTEE :    HOKULEI VILLAGE LLC, a Delaware limited liability company

DATED :    December 23, 2014

FILED :    Land Court Document No. T-9132040

Schedule 1.5-2
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Schedule 1.5-1
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Schedule 1.5
Service Contracts

Puunene Land:
1.
Service Contract, dated 11/2/2016 by and between Terramar Retail Centers, LLC and Simplex Grinell
2.
Service Contract, dated 5/31/2017 by and between Terramar Retail Centers, LLC and The Terminix International Company
3.
Service Contract, dated 10/25/2016 by and between Puunene Seller and Delta Executive Security Hawaii, LLC
4.
Service Contract, dated 8/23/2017 by and between Terramar Retail Centers, LLC and Landscape Hawaii Inc.
5.
Service Contract, dated 9/5/2017 by and between Terramar Retail Centers, LLC and Maui Disposal Company Inc.
6.
Service Contract, dated 8/27/2015 by and between Terramar Retail Centers, LLC and PWC Hawaii Corporation
7.
Service Contract, dated 10/25/2016 by and between Puunene Seller and PWC Hawaii Corporation
8.
Service Contract, dated 8/30/2017 by and between Terramar Retail Centers, LLC and Pural Water Specialty Co Inc.
9.
Service Contract, dated November 8, 2017 by and between Terramar Retail Centers, LLC and P.W.C. Hawaii Corporation.

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Laulani Land:
1.
Service Contract, dated 4/21/2017 by and between Laulani Seller and Affordable Locksmith and Son LLC
2.
Service Contract, dated 3/13/2017 by and between Laulani Seller and ALCAL Specialty Contracting Inc.
3.
Service Contract, dated 8/26/2016 by and between Laulani Seller and Commercial Plumbing Inc.
4.
Service Contract, dated 6/21/2016, as amended by Amendment No. 1 to Service Contract 154347, dated 7/25/2017 and as amended by Amendment No. 2 to Service Contract 15347, dated 9/7/2017 by and between Laulani Seller and Conservice LLC
5.
Service Contract, dated 1/30/2015 by and between Laulani Seller and DC Asphalt Services Inc.
6.
Service Contract, dated 5/15/2017 by and between Laulani Seller and HBM Acquisitions LLC
7.
Service Contract, dated 5/10/2017 by and between Laulani Seller and Honolulu Fire Protection, LLC
8.
Service Contract, dated 10/4/2016, as amended by Amendment No. 1 to Service Contract 167739, dated 8/15/2017 by and between Laulani Seller and Horizon Media LLC
9.
Service Contract, dated 3/16/2017 by and between Laulani Seller and Island Signal and Sound Inc
10.
Service Contract, dated 4/10/2014 by and between Laulani Seller and Landscape Hawaii Inc.
11.
Service Contract, dated 12/26/2014 by and between Laulani Seller and Pacific Biodiesel Logistics, LLC
12.
Service Contract, dated 4/12/2017 by and between Laulani Seller and Securitas Security Services USA Inc.
13.
Request for Services, dated 2/8/2013 by and between Property Development Centers, LLC, and its successors and assigns, and Sentinel Silent Alarm Company Inc, and its assignees
14.
Service Contract, dated 4/10/2014 by and between Laulani Seller and Solid Towing LLC
15.
Service Contract, dated 5/30/2014, as amended by Amendment No. 1 to Service Contract 63618, dated 11/30/2015 by and between Laulani Seller and Thyssenkrupp Elevator Inc.
16.
Service Contract, dated 11/15/2016 by and between Laulani Seller and TSM Enterprises Inc.
17.
Service Contract, dated 9/30/2013 by and between Property Development Centers LLC, and its assignees, and Orkin Exterminating Company Inc.
18.
Service Contract, dated 7/9/2013, as amended by Amendment No. 1 to Service Contract 25239, dated 7/18/2013 by and between by and between Property Development Centers, LLC, and its assignees, and Honolulu Disposal Services Inc.
19.
Service Contract, dated 8/17/2017 by and between Laulani Seller and Alii Glass and Metal Inc.
20.
Service Contract, effective 1/1/2018 by and between Terramar Retail Centers, LLC and Alert Alarm Installation Monitoring Agreement.


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Hokulei Land:
1.
Service Contract, dated 6/7/2017 by and between Terramar Retail Centers, LLC and Mokihana Pest Control Inc.
2.
Service Contract, dated 6/7/2017 by and between Terramar Retail Centers, LLC and In Control Inc.
3.
Service Contract, dated September 1, 2017 by and between Terramar Retail Centers, LLC and Kauai Grease Trap, Inc.
Pad G Land:
None.
Schedule 1.6-7    
1408640.v8
Schedule 1.6-1
1408640.v8
Schedule 1.6
Warranties


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Hokulei Warranties
Box Folder
Assignment
Roof - Safeway
Sika Corporation - 8.13.15 for 20 years ( also a letter reinstating the warranty as of 10.12.16)
03 Ops/ Building/ Warranties
This warranty may be transferred to a subsequent Owner of the Building if approved in advance and in writing by Sika Corporation and the cost to process the transfer and to inspect and repair the Sika Corporation Roofing System, if necessary, such as but not limited to, removal and replacement of overburden, shall be the Owner's responsibility.
Bldg. 4,5 - A/C
Trane, Greenheck, & HVAC Guard Coil, - (P. 62) June16, 2015 Project Acceptance
03 Ops/ Building/ Warranties
Warranty cannot be transferred in name or location without explicit written consent
Trane
Kauai Air Conditioning & Refrigeration
 
Bldg. 4,5,6 Metal Roofing
Custom-Bilt Metals (P.9) June 6, 2015
03 Ops/Building/ Warranties/Shell Closeouts folder
Condition No. 2 states Warranty not assignable. Seller shall make reasonable efforts to cause the warrantor to delete or waive that Condition.
Beachside Roofing
 
Bldg. 4,5,6 Thermoplastic Roof Membrane
Carlisle Golden Seal Total Roofing System April 24, 2015
Same as above
Transferrable with inspection and transfer fee (Condition No. 11)
Beachside Roofing
 
Aluminum Storefront
Trulite Glass & Aluminum Solutions (estimating June-August 2015)
Same as above
Not transferable. Seller shall make reasonable efforts to cause the warrantor to delete or waive that restriction.
Glass Bldg. 4,5,6
 
Mailboxes
AF Florence Manufacturing (estimating June-August 2015)
Same as above
No restriction on transfers
Emergency Fixtures & Lighting
Acuity Brands Lighting, Inc. d/b/a Lithonia Lighting (P.458) June 23, 2015
Same as above
Not transferable. Seller shall make reasonable efforts to cause the warrantor to delete or waive that restriction.
Electricians, Inc.
 


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Puunene Warranties
Box Folder
Assignment
Bldg. 4,5,12
Firestone Building Products October 3, 2016
03 Ops/Building/
Transferrable with payment of transfer fee
PVDF Coating Bldg, 4,5,12
B & C Industries / B&C Awnings, Inc. October 12, 2016
Same as above
Not transferrable. Seller shall make reasonable efforts to cause the warrantor to delete or waive that restriction.
Soil Treatment Termite Control
Bowman Termite & Pest Management October 12, 2016
Same as above/ Puunene Closeout Binder
No restriction on transfers


 
Laulani Warranties
Box Folder
Assignment
LV Roof
Carlisle Golden Seal Total Roofing System October 11, 2012
03 Ops/Building/
Application may be made by a new building owner for reissuance of the warranty during the original warranty period. Certain procedures including, but not limited to, an inspection of the Roofing System by a Carlisle representative and fees will apply to any reissuance.
(All Roofs)
Warranties
 
Metal Roof Bldg. E,M,N
Hawaii Metal Roofing November 20, 2012
Same as above
No restriction on transfers
Finish Hardware Bldg. B,C,D,E,F Shell
Island Pacific Distributors November 20, 2012
Same as above
No restriction on transfers
Ross, Petco & City Mill
Bobrick May 11, 2012
Same as above
No restriction on transfers
Toilet Accessories
 
Petco
InPro Corporation May 11, 2012
Same as above
No restriction on transfers
Door & Wall Protection
 
Petco
Armstrong August 2011
Same as above
No restriction on transfers
Ceiling
 
Panels
 
Petco
Armstrong June 2011
Same as above
No restriction on transfers
Commercial Suspension System
 
Ross Ceiling Grid & Panels
Armstrong August 2011
Same as above
No restriction on transfers


Schedule 9.3.6-24
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Amended Schedule 1.7-1
1408640.v8
Amended Schedule 1.7
Other Agreements

Construction Related

1.
That certain AIA Document A102 - 2007 Standard Form of Agreement Between Owner and Contractor, as modified by the parties, by and between Puunene Seller, as owner, and Maryl Group Construction, Inc., as contractor, dated January 11, 2017, including all attachments, exhibits and amendments thereto, concerning the development of the Puunene Shopping Center.
2.
That certain AIA Document A102 - 2007 Standard Form of Agreement Between Owner and Contractor, as modified by the parties, by and between Puunene Seller, as owner, and Maryl Group Construction, Inc., as contractor, dated November 14, 2017, including all attachments, exhibits and amendments thereto, concerning tenant improvement work for Ulta Salon Cosmetics & Fragrance, Inc.
3.
That certain AIA Document A102 - 2007 Standard Form of Agreement Between Owner and Contractor, as modified by the parties, by and between Puunene Seller, as owner, and Maryl Group Construction, Inc., as contractor, dated March 16, 2016, including all attachments, exhibits and amendments thereto, concerning the development of the Puunene Shopping Center.
4.
That certain AIA Document B101 - 2007 Standard Form of Agreement Between Owner and Architect, as modified by the parties, by and between Puunene Seller, as owner, and MGA Architecture, as architect, dated March 18, 2016, including all attachments, exhibits and amendments thereto, concerning the design of the Puunene Shopping Center.
5.
TRC Contract between Geolabs and Puunene Seller dated April 26, 2016.
6.
TRC Contract between American Water and Puunene Seller dated June 15, 2016.
7.
Purchase Order Contract between Forms + Surfaces and Puunene Shopping Seller dated May 11, 2017.

Others:

1.
The rights of Hokulei Seller under Section 15.24 of that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated December 9, 2014 with American Savings Bank, F.S.B., as referenced in Section 3 of that certain Memorandum of Agreements dated January 26, 2015 (Document No. T-9156038)


Schedule 1.8-1
1408640.v8
Schedule 1.8
Excluded Contracts

Schedule 9.3.6-25
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1.
Listing Agreement dated September 10, 2013, with Jones Lang LaSalle Americas, Inc., as amended.

2.
Amended & Restated Purchase and Sale Agreement dated April 19, 2013, with Grove Farm Properties, Inc., as amended

3.
That certain AIA Document A102 - 2007 Standard Form of Agreement Between Owner and Contractor, by and between Puunene Seller, as owner, and Diede Construction, Inc., as contractor, dated August 24, 2017, including all attachments, exhibits and amendments thereto, concerning Hokulei Suites 408-409, 411, 412 & 414, 509-510 & 523.
Amended Schedule 8.8-9    
1408640.v8
Schedule 8.8
1408640.v8
Schedule 8.8
Termination of Hokulei CPR

Hokulei Village - Checklist
Withdrawal from CPR and Phase 2 Reconveyance
As of December 26, 2017
HV - Hokulei Village LLC
GF - Grove Farm Properties, Inc.
ASB - American Savings Bank, F.S.B.
SD - Saturn Development LLC (formerly Property Development Centers LLC)
BFKN - Barack Ferrazzano Kirschbaum & Nagelberg (Chuck Picton, Justin Podjasek)
SML- Sullivan Meheula Lee (Terry Lee, Lynn Petry, Jennifer Baricaua [paralegal])
CLP - Case Lombardi Pettit (Dennis Lombardi, Dave Brittin)
CS - Cades Schutte (Rick Kiefer, Lisa Ayabe)
TG - Title Guaranty of Hawaii (Philip Gartland)
WSUE - Warren S. Unemori Engineering, Inc. (Clifford Mukai, Darren Okimoto)
CP - Chuck Picton
JP - Justin Podjasek
TL - Terry Lee
LP - Lynn Petry
JB - Jennifer Baricaua
DL - Dennis Lombardi
DB - Dave Brittin
GN - Galen Nakamura
RK - Rick Kiefer
LA - Lisa Ayabe
CM - Clifford Mukai
DO - Darren Okimoto
PG - Philip Gartland


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Instrument
Responsible Party
Comments
 
RECONVEYANCE CLOSING 12/22/2017
 
Unit J and Unit L Deed to Grove Farm.

Conveyance Tax Form
SML
Recorded 12/22/17; Doc. No. T-10217503; Issuance of CT 1,149,177
 
Allocation of Housing Agreement obligations
 
Recorded 12/22/17; Doc. No. T-10217504
**Parties to amend legal descriptions after removal of units from CPR (see item 20)
 
Grant of Easement for Roundabout
SML
HV original received

Form attached to ARPSA. TL submitted draft to DB, DL, RK and LA on 12/9. Minor edits by DB on 12/13. Revised draft sent to RK 12/15; RK comments received 12/16. Revised draft approved by RK 12/19; sent to DB 12/19 and approved 12/20.
TG indicates recordation must wait until condo amended unless all unit owners join. GFP concurs.
**GFP to provide Insurance Certificate for $2M CGL
 
TG Form D (tenant leases; parties in possession)
 
Hokulei original delivered to DB, copy to TG
 
TG Form B (construction, covenants, subdivision matters)
 
Hokulei original delivered to DB, copy to TG
 
FIRPTA
 
Terramar original delivered to DB; copy to TG
 
HARPTA
 
Terramar original delivered to DB; copy to TG
**
CANCELLATION OF PHASE 2 MOA AND ASSIGNMENT OF RIGHTS
 
Petition re PDC name change
SML
Petition drafted by TL. Certified copy of name change from Delaware Secretary of State received and Petition submitted to Land Court 12/12. In process but unlikely to be approved by the Land Court in time for the 12/18 Reconveyance Closing. We believe Items 2 & 3 can be recorded at any time after the Petition is approved by the Land Court.

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Assignment and Assumption of Amended and Restated Phase 2 MOA (SD to HV)
SML
HV original received
SD originals received (3)

TL revising per RK comments. Revised draft resubmitted to RK on 12/7. RK approved on 12/10 and requested PG approval.

DB believe this needs to be an assignment of rights under the PSA so that HV may also deliver the Assignment of Rights.

TL disagrees since PDC assigned to HV on 12/23/2014 the rights to be quitclaim assigned to GF (copy provided to GF on 12/11).
Revised draft sent to RK 12/15.
 
Cancellation of Phase 2 MOA
SML
HV original received

See comments to 2. Draft sent to RK on 12/5. Revised draft sent to RK 12/15.
 
Assignment of Rights re Class IV permit rights, etc. as to Phase 2 (HV to GF) (unrecorded)
CLP
GF original received
HV original delivered to DB

Draft sent to TL on 12/11/17 and TL approved on 12/11. TL sent draft to RK on 12/11, revised by DB to correct legal description 12.13, revision sent to RK 12/14. Required per Amended Phase 2 MOA Section 5.2.4(g). DB requests delivery at Reconveyance Closing.
 
Phase 2 Reconveyance Agreement (unrecorded)
 
GF original received
HK copy delivered to DB

Revised draft w/exhibits sent to RK 12/20; final draft circulated to all parties 12/22; okay to record 12/22 per LA
 
HV-A&B CLOSING (scheduled for January 18, 2018)
 
Release of BoA Mortgage
 
HV to handle

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Amendment of CPR Declaration removing Units A-G, H and K  
CLP
DB drafting. Hope to have draft by 12/14.
 
Amended Condo Map
WSUE
WSUE draft received 12/7 and TL requested that WSUE delete Easement 164, which was done and received by TL on 12/8. TL circulated draft to DB, DL, RK and LA on 12/9.
 
Assignment of Declarant Rights under CPR Declaration (HV to GF)
CLP/SML
DB drafted, TL revised and resubmitted to DB on 12/7. DB revised draft submitted to TL on 12/12, revised by LP on 12/13; revised by DB 12/14. Sent to RK 12/20 with Reconveyance Agreement
 
Amendment of CPR By-Laws
CLP
DB drafting.

CLP-We suggest holding off on the amendment to Bylaws for now, as GF may amend and restate the Dec and Bylaws shortly after removal of Phase 1
 
REA
 
DB, TL and ASB approved. RK reviewing. RK: CPR Should be subordinated to this.

CLP-in lieu of a subordination (which has not been approved by GF at this time), we suggest adding a sentence to the REA and RA to the effect that if the CPR is terminated, then the covenants will burden the fee simple interest in Phase 2.
 
Subordination Agreement (REA & ECR) - Petco
CS/SML
LA drafted and submitted to TL/LP for review on 12/14.
 
Subordination Agreement (REA & ECR) - Walgreen
CS/SML
LA drafted and submitted to TL/LP for review on 12/14.
 
RA
 
DB, TL and ASB approved. RK reviewing. RK: CPR Should be subordinated to this. CLP has same position as for REA.
 
Assignment of Declarant Rights under Declaration of Easements (Phase 1) (SD to HV)
SML
TL revised per RK comments and resubmitted to RK on 12/7. RK approved on 12/10 and requested PG approval.
 
Termination and Release of Declaration of Easements (Phase 1) (SD and ASB)
SML
TL revised per RK comments and resubmitted to RK on 12/7. RK approved on 12/10 and requested PG approval.
 
Termination and Release of Reservation of Rights in ASB Unit Deed
SML
TL drafted and submitted to RK on 12/9. RK commented on 12/10 and TL revised draft and resubmitted to RK on 12/10. RK and PG believes release must be as to all Lots except 1546-G. LP to circulate revised draft 12/27.

CLP-please provide us a copy to review.

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Termination and Release of Reservation of Rights in GF Unit Deed
SML
TL/LP to draft and submit to RK, if needed. DB prefers to address in Assignment of Declarant Rights under CPR Declaration (HV to GF).

Update 12/14: TG believes release of all Lots except 1546-J and L may be needed; LP to circulate revised draft by 12/27.

CLP-please provide us a copy to review.
 
Amendment of MOA (ASB) to reflect conversion of Units to Lots
SML
TL/LP drafting. TL/LP will complete draft and submit to RK by 12/27.
 
Amendment of Allocation of Housing Agreement obligations to reflect conversion of Units to Lots
SML
TL/LP drafting
 
Quitclaim deed from HV to ASB re Lot 1546-G
 
TL, DB and ASB approved. RK reviewing.
 
Quitclaim deed from ASB to HV re Lots 1546 A-F, H and K
 
TL, DB and ASB approved. RK reviewing.
 
Quitclaim deed from GF to HV re Lots 1546 A-F, H and K
SML
TL/LP drafting based on form of 21 and 22 and will submit to RK and DB/DL w/i two days of RK approval (assuming RK approves 21 and 22).
 
Quitclaim deed from HV to GF re Lots 1546-J & -L
SML
TL/LP drafting based on form of 21 and 22 and will submit to RK and DB/DL w/i two days of RK approval (assuming RK approves 21 and 22).
 
Quitclaim from ASB to GF re Lots 1546-J & -L
SML
TL/LP drafting based on form of 21 and 22 and will submit to RK, DB/DL and ASB w/i two days of RK approval (assuming RK approves 21 and 22).
 
Quitclaim Deed from GF to ASB re Lot 1546-G
SML
TL/LP drafting based on form of 21 and 22 and will submit to RK, DB/DL and ASB w/i two days of RK approval (assuming RK approves 21 and 22).
 
Declaration of ECR (form drafted but needs to be updated) 
SML
TL/LP to update and submit draft to RK by 12/27. RK: If this involves Phase 2 the CPR should be subordinated to this. TL: not necessary as this only encumbers Phase 1.
 
Amendment to Safeway Memo of Lease re “conversion” of Unit A to Lot 1546-A
SML
TL/LP to draft and submit draft to RK by 12/27
 
Limited Warranty Deed from HV to A&B designee of Lots 1546-A to F
CS/BKFN
RK and BKFN handling