EXHIBIT 10.66
PURCHASE AND SALES AGREEMENT AND INSTRUCTIONS TO ESCROW
THIS AGREEMENT dated as of December 15, 1997 (the "Effective Date") is entered
into by and between X. XXXXXX HOMES, INC., a Delaware corporation, whose
address is 000-X Xxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxx 00000, hereinafter referred to
as "Seller" and XXXXX X. XXXXXXX, an individual resident of Hawaii, whose
address is X.X. Xxx 00, Xxxxx, Xxxxxx 00000, hereinafter referred to as "Buyer".
This agreement shall constitute a contract for the purchase and sale between
Seller and Buyer when and if executed by both Seller and Buyer, subject to the
terms and conditions contained herein. This agreement shall also serve as
instructions to Title Guaranty Escrow Services, Inc., whose address is Xxxxx X,
0000 Xxxxx Xx., Xxxxxxx, Xxxxxx 00000, hereinafter referred to as "Escrow
Agent".
W I T N E S S E T H
Whereas the Seller owns the fee simple interest in and to that certain
property identified as Nanea Subdivision (C-7 subdivision) (the "Property") The
land consists of the area within the perimeter boundaries of a proposed 80 lot
subdivision (the "Project"), located in Seller's Kehalani community, more
particularly described in the attached Exhibit "A", which by this reference is
incorporated herein and made a part hereof; and
Whereas Buyer desires to purchase the Property from Seller only if Seller is
able to obtain (a) final subdivision approval from the County of Maui separating
the Property from the larger parcel of which it is a part (the "First
Subdivision"), (b) the approvals from the appropriate agencies of the County of
Maui of construction plans for Project site improvements and infrastructure,
such that Buyer shall be able to immediately apply for and receive a permit to
begin site work for the proposed subdivision upon the closing of this
transaction and (c) certain other conditions are met as provided herein; and
Whereas Seller desires to sell and convey to the Buyer the Property and Buyer
desires to purchase the Property from the Seller pursuant to the terms,
conditions and provisions hereof;
NOW THEREFORE, it is hereby agreed as follows:
1. SALE AND PURCHASE:
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In consideration of the Purchase Price as hereinafter defined below, and
subject to the terms and conditions hereinafter set forth, the Seller agrees to
sell, assign and transfer to the Buyer on the Close of Escrow and all interest
in the Property and the Buyer agrees to purchase from said Property from the
Seller.
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2. PURCHASE PRICE, INITIAL DEPOSIT
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2.1 The purchase price for the Property to be paid by Buyer to the Seller
shall be TWO MILLION TWO HUNDRED THOUSAND DOLLARS ($2,200,000.00), and shall be
paid as follows:
(a) INITIAL DEPOSIT. Within three days after the execution of this
Agreement by both the Seller and the Buyer, the Buyer shall deliver to the
Escrow Agent the sum of FIFTY THOUSAND DOLLARS ($50,000.00) in cash or certified
funds, as the initial deposit. The said initial deposit shall be non-refundable
unless the Buyer shall have notified and advised the Seller in writing prior to
the expiration of the feasibility study period as hereinafter defined, that it
does not intend to proceed with the purchase, and it wishes to terminate this
Agreement. Once the feasibility study period has expired, the initial deposit
shall not be refunded to the Buyer, except as specifically provided herein.
Upon successful completion of the transaction herein contemplated, the initial
deposit and any interest which may have accrued thereon until closing, shall be
applied and fully credited toward the purchase price.
(b) BALANCE OF PURCHASE PRICE. At least two days prior to the Escrow
Closing, as hereinafter defined, the Buyer shall deposit with the Escrow Agent
the balance of the purchase price for the property herein defined, in cash, or
certified or official bank check or irrevocable transfer of immediately
available funds.
2.2 If the transaction herein contemplated shall fail and the Escrow
fails to close due solely to the material breaches of the Seller, for which
Seller is responsible, the initial deposit shall be refunded to the Buyer,
together with any accrued interest, but only if the Seller shall have failed to
cure its material breaches and/or default prior to the close of Escrow after
being notified of material breaches and/or default and having been given a
reasonable opportunity by the Buyer to cure same, and provided further that the
Buyer also shall not have committed any material breaches, or shall not be in
material breach or default of this Agreement. If at any time Buyer is in
material breach and/or default of this Agreement prior to the close of Escrow,
and after being notified of material breaches and/or default, Seller shall give
Buyer a reasonable opportunity to cure same, and if Buyer shall fail to cure
said material breach, Seller may cancel this Agreement.
2.3 Closing shall occur within 30 days after Seller shall notify Buyer
that the conditions of closing shall have been satisfied under Section 6.2
below. The parties will close the transaction on or before March 31, 1998, the
close of Seller's fiscal year. If for any reason the transaction does not close
by March 31, 1998, time being of the essence, either party may cancel this
agreement by written notice to the other, and any right of either party to
extend performance to cure any default under this Agreement shall not apply,
notwithstanding any provision of this Agreement to the contrary.
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3. ESCROW OPENING AND INVESTMENT OF INITIAL DEPOSIT
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3.1 Upon mutual execution of this Agreement, the Seller and the Buyer
shall deliver a copy of the executed Agreement to the Escrow Agent, and upon
acknowledgment of receipt of same by the Escrow Agent, the escrow for the sale
and purchase of the Property shall be deemed open.
3.2 The Escrow Agent shall prepare such other and further documents as
may be reasonably necessary or applicable in order to facilitate the transaction
herein contemplated, and the Seller and the Buyer shall comply with such
reasonable requests as may be made by the Escrow Agent.
3.3 The initial deposit shall be held in an interest bearing account of
the Escrow Agent until the close of escrow, or its release to Buyer or Seller as
required herein. Escrow Agent shall otherwise have no responsibility to invest
any asset held by it pursuant to this paragraph.
3.4 At the Escrow Closing or anytime prior thereto, the Buyer shall be
entitled to any interest earned on the initial deposit and said interest shall
be the sole property of the Buyer. However, if the deposit shall be distributed
to Seller as required herein in the event of Buyer's default, the interest will
be distributed to Seller.
4. SELLER'S PROPERTY INFORMATION
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4.1 Within 15 days after the mutual execution of this Agreement, the
Seller agrees to provide the following information (Seller's Property
Documents), to the Buyer to the extent that they are available to the Seller and
have not already been provided to the Buyer.
(a) all contracts, agreements, and leases affecting the ownership or
use of the Property;
(b) all permits, certificates, licenses, from Federal, State, or
County agencies, now in force, affecting the Property;
(c) any soil, ground water, mechanical, structural, environmental and
other similar reports or documentation in Seller's possession;
(d) any engineering, surveying, site, or other plans and
specifications prepared by or for Seller, for the construction of any
improvements on the Property (but specifically excluding home plans);
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(e) copies of correspondence from any Federal, State, or County
agencies regarding the Property.
Seller does not warrant the accuracy of any reports, information or
communications provided by or obtained from any consultant, government agency or
other third party. All information for which Seller is the source is true (or
was true when stated) to the best knowledge and belief of Seller.
5. BUYER'S FEASIBILITY STUDY AND TITLE MATTERS
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5.1 For a period of Forty Five (45) days (hereinafter the "feasibility
study period"), commencing on the Effective Date, the Buyer shall have a right
to conduct a feasibility study, to conduct such surveys, engineering and
environmental studies, and market studies to satisfy itself of the advisability
of acquiring the Property in its sole judgment and discretion. The Buyer agrees
to bear any and all such costs and expenses associated with such study,
including, but not limited to attorney's fees, appraisals, survey fees,
environmental report fees, and the Buyer agrees to hold the Seller free and
harmless therefrom. Also, during the feasibility study period Buyer shall take
all necessary steps to satisfy Buyer that adequate and acceptable financing
shall be available for the purchase and development of the Property.
5.2 The Seller agrees that the Buyer may enter the Property to conduct
such investigations as the Buyer deems necessary and appropriate during the
feasibility study period. If this Agreement is terminated for any reason,
regardless of the fault or causes of termination, the Buyer shall repair,
restore any damage or destruction to the Property resulting from or arising out
of Buyers' activities on the Property. In addition the Buyer shall return to
the Seller all of the Seller's Property Information which the Seller previously
supplied to the Buyer. Buyer agrees to give Seller at least two days' notice
prior to entering the Property and will conduct its investigations in a manner
so as not to interfere with Seller's existing or ongoing activities and uses of
the Property.
5.3 The Buyer hereby agrees to indemnify and hold harmless the Seller
and the Property harmless from and against all liability, loss damages, expenses
or claims, including reasonable attorney's fees, arising out of the acts or
omissions of the Buyer, its agents, employees, independent contractors or
assignees relating to the permitted access or authorization granted herein,
including without limitation any claim, loss or liability related to personal
injury, property damage and the claims of lien of contractors and/or material
providers. If any claims of liens are asserted against the Property as a result
of the Buyer's exercise of the permitted access and of Buyer's conducting the
feasibility study, the Buyer shall immediately arrange and pay for and cause the
recording of a release of any such claim or lien in accordance with the laws of
the State of Hawaii.
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5.4 At the expiration of the feasibility study period, the Buyer shall
notify the Seller whether or not it intends to proceed with the purchase. If
the Buyer determines, in its sole discretion, that it does not wish to proceed
with the purchase and so notifies the Seller, the Agreement and the Escrow shall
terminate forthwith with no further obligations on either party, except for the
obligations of the Buyer set forth in (P)(P) 5.1 through 5.3 above; and the
initial deposit shall be refunded to the Buyer together with all accrued and
unpaid interest. Failure by the Buyer to notify the Seller in writing before
the end of said feasibility study period of Buyer's election to terminate this
agreement shall be deemed its election to proceed with the purchase. If Buyer
proceeds with the purchase, Buyer agrees and acknowledges that in purchasing the
Property, Buyer has relied and will be relying solely on the results of Buyer's
own investigations as to all aspects of the Property and is acquiring the
Property "as is" in its state and condition as of the closing. Seller is making
no representation or warranty whatsoever to Buyer or Buyer's lender as to the
physical condition of the Property; its suitability for development; its legal
status under applicable laws, rules and regulations; conditions or requirements
which may be imposed by the County of Maui in connection with final subdivision
approval; the availability of water, sewer or other utility services; the
condition or compaction or soils and their suitability for construction and
development; drainage or ground water conditions or environmental matters.
5.5 Title Matters: Seller shall deliver to Buyer a preliminary title
report on the Property within 15 days from the date of this Agreement. Buyer
shall have 10 business days from Buyer's receipt of the report to send written
notice to Seller disapproving of any encumbrances reflected in the report.
Buyer shall have the right in Buyer's discretion to disapprove any encumbrance.
If Buyer fails to send such notice, the encumbrances reflected in the report
shall be deemed to be approved by Buyer. If Buyer disapproves any encumbrance,
then Seller may either (a) terminate this Agreement whereupon Buyer's deposit
will be returned in full to Buyer, with any accrued interest, and both parties
shall be released from further obligations under this Agreement, or (b) agree in
writing to cause such encumbrance to be removed prior to closing. If Seller
elects to cancel under (a) above, Buyer shall have the right in its discretion
to elect to waive its objection to the encumbrance and proceed with the closing,
accepting title subject to said encumbrance, notwithstanding Seller's
termination. All elections under the preceding two sentences shall be made
promptly and in writing. The encumbrances approved (or deemed approved) by
Buyer are herein called the "Permitted Title Exceptions".
In addition, the Permitted Title Exceptions will include (a) any utility
easements, subdivision agreement or other encumbrances imposed by the County of
Maui as a condition of the First Subdivision, provided that such encumbrances
are consistent with normal practice of the County of Maui in subdivision
approvals and such encumbrances will not have any material adverse affect on the
development and sale of the Property by Buyer as an 80-lot residential
subdivision; and (b) the Declaration of Covenants, Conditions and Restrictions
for Kehalani, dated March 17, 1995, recorded in the State of Hawaii Bureau of
Conveyances as Document No. 95-040251, as amended (the "CC&Rs).
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At closing, Seller will convey to Buyer title to the Property by limited
warranty deed (in substantially the form attached hereto as Exhibit B), free and
clear of all encumbrances except the "Permitted Title Exceptions".
6. SELLER'S WARRANTIES AND REPRESENTATIONS;
AND SELLER'S CONDITIONS OF CLOSING;
6.1 Seller hereby makes the following warranties and representations,
effective now and as of the Close of Escrow:
(a) Seller is the sole owner in fee simple of the Property;
(b) Seller is a corporation organized and existing pursuant to the
laws of the State of Delaware and is currently authorized to do business in
Hawaii and is in good standing;
(c) Upon ratification by Seller's Board of Directors as provided in
Section 10.5 below, Seller will have the legal power, right and authority to
execute and deliver this Agreement and instruments necessary to consummate the
transaction contemplated hereby;
(d) The Property is not encumbered by any taxes or other liabilities
in an aggregate amount exceeding the amount to be paid by Buyer for the Property
as of the date of this Agreement and as of the Close of Escrow;
(e) Seller has not incurred any brokerage commission for which the
Buyer is responsible;
(f) The persons executing this Agreement and the instruments referred
to herein on behalf of Seller are duly authorized on behalf of Seller to execute
this Agreement and said instruments;
(g) Seller is not in material breach with respect to any of its
obligations or liabilities to any government agency or third party pertaining
to the Property;
(h) Seller has not within the preceding 12 months received any notice
from any Federal, State, or County authority alleging any fire, health,
building, pollution, environmental, zoning or other violation of law with
respect to the Property, which has not been entirely corrected or will not be
corrected prior to the escrow closing date.
(i) Seller is not aware of any possible condemnation of any part of
the Property or the widening, change of grade or limitation on the use of
streets abutting the
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Property or concerning any special taxes or assessments to be levied against the
Property, or any part thereof, or concerning any changes in zoning
classification of the Property or any part thereof.
(j) Seller has not within the preceding 12 months received any notice
from any insurance company or bonding company of any defects or inadequacies of
the Property or any part thereof, which would adversely affect the insurability
of the same or cause the imposition of extraordinary premiums or charges
therefor or of any termination or threatened termination of any policy of
insurance or bond which has not been corrected or will not be corrected as of
the date of closing.
(k) Seller is not aware of any violations of law with regard to
hazardous materials or hazardous waste on the Property, nor has Seller received
within the last 12 months any notices from any governmental agency for any
violation of laws regarding any hazardous material or hazardous waste on the
Property.
(l) Seller's representations in (h), (i), (j) and (k) speak only as of
the date of this agreement. Seller will promptly notify Buyer if after the date
of this agreement Seller becomes aware of any notice or circumstance which would
invalidate or qualify any such representation as of the closing date.
6.2 The following items are conditions which shall be for the benefit of
Buyer as conditions of closing. If any condition shall not be met, without any
fault of Seller, Buyer may in his discretion (a) elect to waive said condition
and proceed with closing (with no adjustment to the purchase price) or (b)
terminate this agreement and receive a full refund of all deposits, with any
accrued interest and thereupon Buyer and Seller will be released from further
liability on this agreement. Said conditions are as follows:
(a) Seller shall have obtained final subdivision approval for the
First Subdivision;
(b) Seller shall have obtained approval from the County of Maui, and
any other government agencies, of the civil construction drawings for the on
site subdivision improvements for the Project (provided that Buyer shall pay any
fees for grading permits, building permits or other fees associated with plan
review);
(c) Seller shall have obtained County of Maui District Phase III
approval for the Project;
(d) Seller shall have obtained approval of the County of Maui Arborist
Committee of the landscaping plan for the Project; and
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(e) Seller shall not be in breach of any of its obligations under
this agreement.
7. BUYER'S WARRANTIES AND REPRESENTATIONS; AND COVENANTS
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7.1 Buyer hereby represents and warrants to Seller as follows now and as
of the closing date of escrow:
(a) Buyer at Buyer's own cost and expense, will conduct or is
conducting studies of the Property to determine the advisability of acquiring
the same. Buyer is proceeding with this purchase on the basis of Buyer's
satisfaction with investigation and conclusions of Buyer's own investigation;
(b) Buyer has the legal power, right and authority to execute and
deliver this Agreement and instruments necessary to consummate the transaction
contemplated hereby;
(c) Buyer has not incurred any brokerage commission for which the
Seller is responsible;
(d) The persons executing this Agreement and the instruments referred
to herein on behalf of Buyer have the legal power, right and actual authority to
bind Buyer to the terms and conditions hereof;
7.2 Buyer agrees that he shall be solely responsible for the following,
whether or not they shall arise prior to closing:
(a) Sewer hook up fees for the individual lots in the propose
subdivision;
(b) Approvals from the County of Maui beyond those approvals Seller
agrees to obtain contained in paragraph 6 above;
(c) All fees and costs required for water meters and water
transmission and storage charges assessed by the County of Maui;
(d) Any engineering or consulting fees for work beyond that already
prepared by Seller or for work Seller has agreed to perform herein; and
(e) To the extent any such item shall not be paid or completed at
closing, Buyer's obligations hereunder shall survive the closing.
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8. ACTIONS PENDING CLOSE OF ESCROW
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8.1 During the period from the effective date of this Agreement until
the escrow closing date, Seller shall:
(a) maintain the Property in the ordinary course of business, and
perform reasonable maintenance and repairs as necessary. Should a portion of
the Property be substantially and materially damaged or destroyed without the
fault of the Seller, Buyer shall have the following options: (1) accept
conveyance of the Property in a damaged or partially damaged condition, together
with the full amount of any and all insurance proceeds, if any, payable to
Seller as a result of such loss, damage or destruction; or (2) terminate the
Agreement and recover the initial deposit upon notice to Seller. The damage or
destruction shall be deemed "material" and "substantial" if it damages or
destroys more than 25% of the value of the Property. In the event the damages
or destruction are note deemed "substantial" and/or "material", the Buyer shall
have the option outlined in (1) herein. It is expressly agreed by the parties
hereto that the options herein provided shall be the sole and exclusive remedies
available to the Buyer;
(b) keep in force up until the escrow closing date, at its expense,
all policies of insurance relating to the property;
(c) promptly and fully pay all trade accounts and costs and expenses
of operation and maintenance of the Property incurred prior to the escrow
closing date which would normally be for the account of the owner of the
Property; provided, however, that all items of expense relating to the Property
which would normally be for the account of the owner of the Property and which
relate to a period of time beginning before and ending after the escrow closing
date shall be prorated as set forth herein.
(d) Seller shall not enter into any agreements which bind the Property
whose effective terms extend past the escrow closing date, without written
consent of the Buyer, which shall not be unreasonably withheld. Upon consent,
the Buyer shall be deemed to have agreed to assume any such agreements after the
escrow closing date.
8.2 During the period from the effective date of this Agreement to the
escrow closing date, Buyer shall:
(a) conduct the feasibility study and other investigations in relation
with the Property during the feasibility study period;
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(b) submit to the Seller or the Escrow Agent within a reasonable time,
all documents or information required by the Seller or the Escrow Agent to
consummate this transaction.
9. POST-CLOSING COVENANTS.
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9.1 Seller's Post-Closing Covenants: Seller agrees that after the
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closing Seller will perform the following covenants in connection with, and to
assist, the development of the Project:
(a) Off-site Drainage Improvements. If, at the time of closing,
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Seller shall not have completed construction of "off-site drainage improvements"
which are or shall be required by the County of Maui as a condition of final
subdivision approval of the Project into 80 residential lots (the "Project
Subdivision"), Seller will construct said improvements promptly and diligently,
and in a manner which will not delay the County of Maui's final approval of the
Project Subdivision, the Buyer's development of the Project or the Buyer's sale
of homes in the Project. The term "off-site drainage improvements" means
facilities in and around Waiele Road required by the County to be constructed by
Seller as a condition of subdivision and development of the Project.
If all of any portion of the County's off-site drainage improvements
are not completed at the time of the County's final approval of the Project
Subdivision and if the County requires a bond or other financial guarantee with
respect thereto as a condition of said final approval, Seller will provide said
bond or financial guarantee in a timely manner and will perform all obligations
secured by said bond in a timely manner so as not to delay the development and
sale of homes in the Project.
(b) Affordable Housing Credits. The Project is subject to the
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requirement by the County of Maui to develop or provide a minimum number of
homes or lots which are "affordable", consistent with Maui County's regulations
and standards concerning affordability. Seller has existing affordable housing
credits as a result of prior projects which may be made available for the
benefit of the Project. The parties agree that the Buyer shall have full
control over pricing the individual houses and lots in the Project without
regard to the County's affordable housing requirements. If, as a result of said
pricing, the total number of houses and lots (if any) in the Project which shall
meet the County's affordable housing requirements are insufficient to satisfy
the legal obligation of the Project, the Seller will assign affordable housing
credits to the Project in an amount sufficient to meet said requirements. If,
however, the total number of houses and lots in the Project (without requiring
assignments of credits by the Seller) shall exceed the Project's obligation to
the County for affordable housing, Buyer will assign said excess credits to
Seller for use by Seller in future developments at Kehalani.
Buyer agrees to cooperate concerning said credits and will require
that its lot purchasers participate in the required process before appropriate
government agencies to qualify the units as affordable (if and to the extent
that the prices qualify).
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(c) Park Assessments. Seller will have the obligation to satisfy
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the County of Maui's requirements for park dedication (or financial
contribution in lieu of dedication) as required by County rules and
regulations. This obligation will be satisfied in a timely manner so as not
to delay or hinder the County's final approval of the Project Subdivision or
the development and sale of lots and homes in the Project. Seller will have
the option of bonding the park requirements in lieu of actual dedication.
(d) Water Meters. Seller will cooperate with Buyer in Buyer's efforts
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to obtain water meters for each of the proposed 80 lots in the Project, by
communicating to the Board of Water Supply Seller's willingness to use a portion
of its water source credits or allotments under the existing Central Maui Source
Development Agreement among Seller, other venture partners and the Board.
However, Seller shall not be liable if Buyer shall be unable to obtain such
meters due to moratorium or shortage or any failure or refusal by the Board of
Water Supply to cooperate or consent to the allocations of source capacity to
the Project as requested by Buyer and Seller. Seller shall not be required to
incur any cost or financial obligation with respect to said requests or said
meters. Buyer shall be responsible for satisfying the County's requirements
with respect to storage and transmission, as well as the water system
development fees and cost of installing water meters.
(e) Cooperation. Seller will generally cooperate with Buyer to assist
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Buyer in processing Buyer's Project approvals.
9.2 Buyer's Post-Closing Covenants. Buyer agrees to perform the
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following covenants after the closing:
(a) Conform to Plan. Buyer will develop the Project as a single
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family home residential subdivision with 80 residential lots, plus road lots,
landscaping lots, easements and other features, all as shown on the subdivision
plan entitled "Nanea at Kehalani", dated August 14, 1997, by Xxxxxx X. Xxxxxxx
Engineering, Inc., with amendments as may be required by the County as part of
the subdivision process (the "Subdivision Plan"), and the construction drawings
which have been submitted to the County of Maui and which shall have been
approved prior to closing by the County of Maui (the "Construction Drawings").
Buyer will not change or deviate from the Subdivision Plan or the Construction
Drawings in any material respect without Seller's prior written approval, which
approval shall not be unreasonably withheld, it being understood that the
Seller's primary goal will be to assure the visual and functional integration of
the Project with the existing and future subdivisions of Seller at Kehalani and
with the Project infrastructure.
(b) Comply with CC&Rs. The Buyer will comply with the CC&Rs and
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will require all lot buyers in the Project to comply with the CC&Rs, including
but not limited to the requirements for construction design and landscaping
approvals. All signage and landscaping shall also be subject to design
approval under the CC&Rs. Buyer will pay dues
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and common expense charges applicable to all of the lots which shall accrue
prior to the sale of each lot.
Seller agrees that it will review, at no cost to Buyer, up to five
different proposed plans for the grading, home construction and landscaping of
lots. A design review for a standard or typical house and lot development
package shall be considered to be a single plan review even if it will be used
for more than one lot. If the total number of plan reviews in the project
pursuant to the CC&Rs exceed five, Seller shall have the right to charge Buyer
(or any lot purchaser) for each such additional review to compensate Seller
reasonably for its time and expenses of performing said review.
(c) Dedications. The Buyer will complete construction of and will
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dedicate to the County of Maui all roads and cul-de-sacs in the subdivision
and the access road (Xxxxx Xxxxxx) to Waiele Road in a timely manner. Also,
the Buyer will install all landscaping within the subdivision including all
landscaping strips (Lots 90, 91 and 92 as shown on the plan) in accordance
with requirements of the Arborist Committee and the County of Maui and will
dedicate said strips to the Homeowners Association for maintenance and
preservation as a common expense. Buyer will construct and convey to Maui
Electric Company and other utility providers all electrical, water, sewer and
other utility services and easements, and will also establish appropriate
easements for common driveway areas shown on the plan.
(d) Comply with Laws. Buyer will comply with all applicable laws,
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rules, regulations and permits, including but not limited to building codes,
subdivision rules, NPDES permit, zoning and land use rules, H.R.S. Chapter 484
(Uniform Land Sales Practices Act), the Interstate Land Sales Full Disclosure
Act, and the terms and conditions of all governmental approvals relating to
the Project.
(e) Cooperation. Buyer will generally cooperate with Seller in
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Seller's performance of its post-closing covenants.
(f) Assignment. The Buyer will not transfer to any third party the
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Project as a whole or make any bulk sale of all or substantially all of the
lots in the Project prior to obtaining final subdivision approval for the
Project and prior to completing and performing substantially all of Buyer's
post-closing covenants hereunder, without Seller's prior written approval,
which approval will not be unreasonably or arbitrarily withheld or delayed, it
being understood that the Seller needs to be assured that the Project will be
developed as agreed and without adversely affecting other developments of
Seller in Kehalani, and that the developer will be capable, financially
strong, cooperative and reputable.
9.3 Survival of Covenants. Buyer and Seller agree that all of the
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foregoing post-closing covenants of Buyer and Seller shall survive the
closing.
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10. OTHER TERMS AND OBLIGATIONS
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10.1 Should a portion of the Property be taken by eminent domain or
condemnation, Buyer shall have the following options: (1) accept conveyance of
the Property subject to such taking or condemnation, together with the full
amount of any payments or awards payable to Seller as a result of such taking or
condemnation; or (2) terminate the Agreement and recover the initial deposit,
upon notice to the Seller.
10.2 Risk and title in and to the Property shall pass from the Seller to
the Buyer on and not before the Close of Escrow and the Buyer shall be entitled
to possession of the Property on and after Close of Escrow.
10.3 Except as otherwise provided in this agreement, Seller shall be
responsible for, and shall indemnify Buyer against, any and all obligations,
liabilities, claims and losses arising out of the ownership, development, use,
possession or control of the Property prior to the Close of Escrow, and the
Buyer shall be responsible for, and shall indemnify Seller against, all
obligations, liabilities, claims and losses arising out of the ownership,
development, use, possession or control of the Property after the Close of
Escrow, and each shall hold the other free and harmless therefrom and agrees to
defend the other with respect thereto.
10.4 Buyer and Seller will each maintain the confidentiality of all
proprietary or confidential information provided to it by the other party,
except that Buyer may disclose to his lender information necessary to implement
his loan transaction.
10.5 Seller may terminate this agreement by written notice to Buyer if
this agreement shall not have been duly authorized and ratified by the Seller's
Board of Directors within 30 days from the date of this agreement.
11. BREACH OF REPRESENTATIONS
-------------------------
If there is any material breach by either party of any warranties and
representations as set forth in this Agreement and/or respective obligations
herein, which is discovered by the other before the Close of Escrow, each shall
obligated to and have an opportunity to correct such breaches at its own expense
any time prior to the Close of Escrow, after the receipt of notice of breaches
from the non-breaching party. If all such breaches are not corrected within
that time, they constitute default, and non-defaulting party shall have the
option to (1) postpone the Close of Escrow for a reasonable period thereafter to
permit the correction of such matters, or (2) complete this sale and purchase,
notwithstanding
13
failure(s) to correct breaches, in which case any claim for breaches shall be
waived, or (3) to terminate the Agreement with no further obligations to sell or
to purchase the Property, in which case the provisions of this Agreement shall
govern the rights and obligations of the respective parties. Parties failure to
affirmatively elect either option shall be construed as an election of option
(2). The remedies provided for herein shall be applicable only to breaches of
representations and covenants only.
12. SELLER'S DEFAULT AND TERMINATION BY BUYER
-----------------------------------------
12.1 In the event the Seller shall have failed to convey title to Buyer
in breach of its obligations hereunder or to cure prior to the Close of Escrow
any material breaches or default of its obligations set forth in this Agreement
("Seller's Default"), after the Buyer shall have notified the Seller of such
breaches and/or default, and given the Seller a reasonable opportunity to cure
such breaches and/or default, the Buyer, as Buyer's sole remedy, shall have a
right to terminate this Agreement and the Escrow by notifying the Seller of its
intent to do so, provided only if the Buyer himself is not in material breach or
in default of its own warranties and representations, or obligations set forth
in this Agreement.
12.2 In the event that Buyer shall exercise its right to terminate this
Agreement and the Escrow in accordance with the provisions of this paragraph,
the Buyer shall be entitled to the return of the Initial Deposit, with accrued
interest, if any, and the Seller shall be entitled to a return of any
information or documents provide to Buyer. In addition, the Seller shall be
responsible for the payment of any escrow cancellation fees. Each is thereafter
released from any further obligations, except as otherwise provided in this
Agreement. Without limiting the generality of the foregoing, Buyer hereby
releases and waives any right it may have to seek or claim the remedy of
specific performance or any lien on the Property in the event of Seller's breach
of this agreement.
13. BUYER'S DEFAULT AND TERMINATION BY SELLER
-----------------------------------------
13.1 If the Buyer shall have failed to purchase the Property in breach
of its obligations hereunder or to cure prior to the Close of Escrow any
material breaches or default of its obligations set forth in this Agreement
("Buyer's Default"), after the Seller shall have notified the Buyer of such
breaches and/or default, and given the Buyer a reasonable opportunity to cure
such breaches and/or default, the Seller, as Seller's sole and exclusive remedy,
shall have a right to terminate this Agreement and the Escrow by notifying the
Buyer of its intent to do so, provided only if the Seller himself is not in
material breach or in default of its own warranties and representations, or
obligations set forth in this Agreement.
13.2 In the event the Seller shall exercise its right to terminate the
Agreement and the Escrow in accordance with the provision of Section 13, it is
expressly agreed that the
14
remedies available to the Seller shall be limited as set forth in 13.3 below,
and each is thereafter released from any further obligations, except as
otherwise provide in this Agreement. In addition the Buyer shall be responsible
for the payment of any escrow cancellation fees.
13.3 Buyer and Seller hereby acknowledge and agree that , in the event
of Buyer's default, Seller will suffer damages in an amount which will, due to
the special nature of the transaction contemplated by this Agreement, be
impractical or extremely difficult to ascertain. In addition, Buyer wishes to
have a limitation placed upon the potential liability of Buyer to Seller in the
event of Buyer's default and wishes to induce Seller to waive other remedies
which Seller may have in the event of Buyer's default. Buyer and Seller after
due negotiation, hereby acknowledge and agree that the amount of the deposits
plus accrued interest represents a reasonable estimate of the damages Seller
will sustain in the even of Buyer's default.
13.4 Buyer and Seller agree that if Seller terminates this Agreement and
cancels the escrow as a result of Buyer's default, Seller shall be entitled to
retain all deposits and any accrued interest as liquidated damages. Such
retention of the said deposits and any accrued interest by Seller is intended
to constitute a forfeiture or penalty under the applicable laws of the State of
Hawaii. The liquidated damages provided for hereunder shall be Seller's sole and
exclusive remedy whether at law or equity in the event of Buyer's default; all
other claims to damages or other remedies being hereby expressly waived by
Seller. Following termination of this Agreement, and retention of the deposit
as liquidated damages by the Seller, pursuant to this section, all of the rights
and obligations of Buyer and Seller under this Agreement shall be terminated.
13.5 Buyer and Seller acknowledge that they have read and understand the
provisions of this section and agree to be bound by its terms.
14. ESCROW CLOSING AND FEES
-----------------------
14.1 The Escrow Closing shall consist of the transfer by the Seller of
the Property to the Buyer, and the payment by the Buyer for the Property, and
execution of such other documents as are reasonably necessary, and shall be held
at the office of the Escrow Agent at the time specified in Section 2.3 or such
other date, time and place as may be mutually agreed upon in writing by the
Seller and the Buyer.
14.2 The Escrow Closing shall occur only when each of the following
obligations have been satisfied or waived by the party for whose benefit such
condition has been imposed.
15
(a) The Buyer shall have failed to give notice to the Seller on or
before the expiration of the Feasibility Study Period that it intends to
terminate this agreement;
(b) Neither Seller nor the Buyer shall have given notice to the other
terminating the Agreement, pursuant to Articles 12 and 13 herein;
(c) The full Purchase Price set forth herein and all costs and
expenses chargeable to the Buyer have been delivered to the Escrow Agent;
(d) The Seller and the Buyer have each rendered substantial
performance of all covenants, agreements, conditions and obligations required by
this Agreement to be performed prior to the specific date specified in the
Agreement or if no date is specified, before the Closing Date;
(e) Each document required to be delivered by either party as set
forth in the Agreement has been timely delivered to and deposited with the
Escrow Agent;
14.3 If any of the foregoing conditions are neither satisfied nor waived
within the time specified therefor, the party who has the obligations to fulfill
such conditions shall be deemed in default, to the extent that satisfaction of
such is within the reasonable control of that party, and the party for whose
benefits the conditions is imposed, may, provided that it is not then in
material breach of default of any obligations hereunder or that it has caused
nor been responsible for such conditions to remain unsatisfied, terminate and
rescind this Agreement by written notice delivered to the other party and the
Escrow Agent. The making of such demand shall be optional and not mandatory.
The non-defaulting party shall then be entitled to avail itself of remedies
specified in this Agreement.
14.4 At the Close of Escrow, the Seller and the Buyer, through Escrow
Agent shall exchange with each other such documents as specified in this
Agreement, and tender and receive the purchase price, and the amounts of pro-
rated fees and costs, pursuant to Paragraph 17 below.
14.5 The Seller and the Buyer shall each bear one half of the escrow
fees charged by the Escrow Agent.
15. BUYER'S DELIVERY TO ESCROW AGENT
--------------------------------
15.1 The Buyer shall deliver to the Escrow Agent at least two days prior
to the scheduled Escrow Closing Date the following:
(a) the balance of the purchase price;
16
(b) the amounts, if any, required by the Buyer under Paragraph
17, entitled "Proration, Fees and Costs";
(c) one half of the Escrow Agent's fees;
(d) amount of conveyance or transfer taxes, or other taxes which
may be due upon the transfer of the Property.
16. SELLER'S DELIVERY TO ESCROW AGENT
---------------------------------
16.1 Seller shall deliver to the Escrow Agent at least two days prior to
the scheduled Escrow Closing Date the following:
(a) any and all documents necessary to convey complete title, free
and clear of all liens and encumbrances (except the Permitted Title Exceptions)
to the Property from Seller to Buyer;
(b) a resolution executed by the Seller's Board of Directors
evidencing approval of and authorization to execute this Agreement and all other
documents relating to the transactions contemplated herein and indicating the
Seller's representative who is authorized to execute documents on behalf of the
Seller;
(c) the amounts, if any, required by the Seller under Paragraph
17, entitled "Proration, Fees and Costs";
(d) one half of the Escrow Agent's fees;
17. PRORATION, FEES AND COSTS
-------------------------
17.1 The following items shall be prorated as of the Escrow Closing Date
on the basis of a thirty (30) day month and as of midnight before the closing
date.
(a) all county, city and special district taxes, if any, based on
the latest information available, including but not limited to real and personal
property taxes;
(b) utilities, including but not limited to water, sewage fees,
and electricity;
17
(c) any and all other charges attributable to the ownership
possession of the Property.
In the event any of these charges are not net determined as of the Close
of Escrow, the Seller and the Buyer agree to prorate the same thereafter when
the information becomes available.
17.2 At the Escrow Closing, Seller shall pay the costs of preparing
documents transferring title to the Buyer and such other documents to be
delivered by Seller. Seller shall bear all costs necessary to convey title to
the Buyer.
17.3 Buyer shall pay and be responsible for the costs of recording the
deed or such other documents which the Buyer requires recording and for any and
all taxes, including conveyance taxes, which may be imposed as a result of the
purchase of the property.
17.4 Seller will pay the cost of the preliminary title search. Buyer
will pay the cost of Buyer's title insurance.
17.5 Any expenses not allocated by the foregoing shall be apportioned
and allocated in the manner customary in the State of Hawaii.
18. NOTICES
-------
Unless otherwise specifically provided herein, all notices, demands or
other communications given hereunder shall be in writing and shall be deemed to
have been duly delivered when delivered personally or by facsimile, telegram, or
as of the second business day after mailing by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Seller, to: X. Xxxxxx Homes, Inc.
Attn: Xxxx Xxxxx
000-X Xxxxx Xxxx
Xxxxxxx, Xxxxxx 00000
Tel. 000-0000
Fax. 000-0000
18
If to Buyer to: Xxxxx X. Xxxxxxx
c/o Xxxxxxx X. Xxxxxxx, Esq.
X.X. Xxx 000
Xxxxx, XX 00000
Tel. 000-000-0000
Fax. 000-000-0000
If to Escrow Agent to: Title Guaranty Escrow Services
Attn: Xxxxxx Xxxxxxxx
Xxxxx X, 0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Tel. 000-000-0000
Fax. 000-000-0000
19. ASSIGNMENT BY BUYER
-------------------
This Agreement and any rights hereunder may not be assigned to any other
party without the written consent of the Seller, however, said written consent
shall not be unreasonably withheld.
20. BROKERAGE COMMISSIONS
---------------------
Buyer and Seller each represent and warrants to the other it has not
incurred any liability for brokerage fees, commissions or finder's fees in
connection with the transaction contemplated by this Agreement. Each party
agrees to indemnify and hold harmless the other from and against any claims or
liabilities arising from a breach of the representation and warranty by such
party contained in this paragraph.
21. MERGER OF SELLER
----------------
The Buyer has been informed that Seller may be participating in a
corporate merger. As part of preparing for the merger, Seller may request
consents, acknowledgements or estoppel certificates from Buyer. Buyer agrees
that it will (a) maintain the confidentiality of Buyer's information about the
merger, and (b) cooperate with Seller and execute such documents as Seller may
reasonably request, provided, however, that each such document shall not result
in any financial outlay by Buyer or assumption of any risk, liability or
obligation, and will not alter Buyer's substantive rights and liabilities under
this agreement.
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22. GENERAL PROVISIONS
------------------
22.1 The representations, warranties, covenants, agreements and
indemnities set forth in or made pursuant to this Agreement shall remain
operative, shall be deemed made upon the execution of this Agreement, but shall
not survive the Close of Escrow, unless it shall specifically be designed to
survive the Close of Escrow by specific references.
22.2 The use herein of (i) the neuter gender includes the masculine and
the feminine, and (ii) the singular number includes the plural, whenever the
context so requires.
22.3 Captions in this Agreement are inserted for convenience of
reference only and do not define, describe, amplify or limit the scope of the
intent of this Agreement or any of the terms hereof.
22.4 This Agreement contains the entire agreement between the parties
relating to the transactions contemplated hereby. All prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are
merged herein.
22.5 No modification, waiver, amendment, discharge or change of this
Agreement will be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment, discharge
or change is or may be sought. Waiver of any one breach will not be deemed to
be waiver of any other breach of the same, or any other provision hereof. No
termination of this Agreement and no waiver of any condition or right of
termination of this Agreement expressly provided for in this Agreement shall
limit either party's liability for any default under this Agreement.
22.6 Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration in accordance with
the commercial arbitration rules of the American Arbitration Association, Maui
County, State of Hawaii as the sole and exclusive recourse therefore and
judgment upon any award rendered by such arbitrator may be entered in any court
having jurisdiction thereof. In the event of such dispute, the prevailing party
shall be entitled to receive reasonable attorney's fees and costs, in addition
to any such other relief and remedies which may be ordered by the arbitrator.
22.7 All terms of this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective legal
representatives, successors and permissible assigns, if any.
22.8 In the event any term, covenant, condition, provision or agreement
herein contained is held to be invalid or void by any court of competent
jurisdiction, the invalidity of any such terms, covenant, condition, provision
or agreement shall in no way affect any other term, covenant, condition,
provision or agreement herein contained.
20
22.9 Buyer and Seller shall fully cooperate with one another in
connection with the requirements imposed by this Agreement, and each agrees to
take such further action and to execute and deliver such further documents, with
acknowledgment or affidavit if required, as may be reasonably necessary to carry
out the purposes of this Agreement and to facilitate the satisfaction of any
conditions set forth herein. This Agreement, and documents required in
furtherance hereof, shall be deemed fully executed when either (1) a single
original document bears the signatures of all parties or (2) all parties have
signed individual copies of an original document and transmitted copies so
executed to all other parties, such that a copy of each signature required by
such document is in the possession of each party to the document.
22.10 This Agreement shall be construed and enforced in accordance with
the laws of the State of Hawaii.
22.11 Time is of the essence hereof.
22.12 Buyer and Seller agree that for all purposes hereunder, the term
"the date" of execution of this Agreement or the Effective Date shall be the
date set forth at the beginning of this Agreement.
22.13 This Agreement has been negotiated at arms length by and between
the Seller and the Buyer, and has been jointly drafted by attorneys for both the
Seller and the Buyer, and should there be any ambiguities within the Agreement,
they shall be given common sense interpretation, and shall not be interpreted
against one party or the other.
22.14 The parties shall meet their own legal and other costs and
expenses in connection with or as a consequence of the negotiation, preparation,
execution and the Closing of Escrow and any documentation referred to herein.
22.15 Wherever in this Agreement the consent of either party is
required, it is agreed that such consent shall not be unreasonably withheld or
delayed.
21
In Witness whereof the parties have executed this Agreement on the date
last written.
X. XXXXXX HOMES, INC.
Date: December 15, 1997
XXXXX X. XXXXXXX
By: /s/ XXXXX XXXXXXXX Date:
---------------------
XXXXX XXXXXXXX
Its: Vice President By /s/ XXXXX X. XXXXXXX
-----------------------
/s/ XXXX X. XXXXX
--------------------
Its: President & CEO
By: XXXX X. XXXXX
22
EXHIBIT B
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LAND COURT | REGULAR SYSTEM
-------------------------------------------------------------------------------
AFTER RECORDATION, RETURN BY: MAIL( ) PICK-UP( )
-------------------------------------------------------------------------------
LotKEYBOARD(insert Lot#)
Grantor: X. Xxxxxx Homes, Inc., a Delaware corporation
Grantee: KEYBOARD(Grantee's names)
KEYBOARD(Grantor's address)
SPECIAL WARRANTY DEED
AND
SUPPLEMENTAL DECLARATION
KNOW ALL MEN BY THESE PRESENTS:
I. SUPPLEMENTAL DECLARATION. That X. XXXXXX HOMES, INC., a Delaware
corporation, whose principal place of business and post office address is at
000-X Xxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxx, 00000, as the Declarant under that
certain Declaration of Covenants, Conditions and Restrictions of Kehalani dated
March 17, 1995, recorded in the Bureau of Conveyances of the State of Hawaii as
Document No. 95-040251 (the "Declarant"), pursuant to Article VII of the
Declaration, does hereby subject to the provisions of said Declaration all of
that certain real property more particularly described in Exhibit "A" attached
hereto and incorporated herein by reference (the "Property"), which Property is
hereby annexed to the property subject to the Declaration. This instrument
shall constitute a Supplemental Declaration, as such term is defined in the
Declaration, and the Property shall be a part of the Neighborhood, as such term
is defined in the Declaration, designated "Nanea at Kehalani" (the "Project").
II. SPECIAL WARRANTY DEED AND COVENANTS. That X. XXXXXX HOMES, INC. a
Delaware corporation, whose principle place of business and post office address
is 000-X Xxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxx 00000 ("Grantor"), in consideration of
the sum of TEN DOLLARS ($10.00) and other good and valuable consideration to it
paid by KEYBOARD (GRANTEE IN CAPS & status), whose residence and post office
address is KEYBOARD (Grantee's address) ("Grantee"), the receipt of which is
hereby acknowledged, does by these presents hereby grant, bargain, sell and
convey unto Grantee, as KEYBOARD (TENANCY IN CAPS), absolutely and in fee
simple, all of the Property (as defined in Section I above).
AND, the reversions, remainders, rents, issues and profits thereof and all
of the estate, right, title and interest of Grantor, both at law and in equity,
therein and thereto.
TO HAVE AND TO HOLD the same, together with all buildings, improvements,
tenements, hereditaments, rights, easements, privileges and appurtenances
thereunto belonging or appertaining or held and enjoyed therewith unto Grantee
as aforesaid, absolutely and forever;
TOGETHER with those certain easements, if any, described in said Exhibit
"A", and with the rights of access described in said Exhibit "A".
SUBJECT, HOWEVER, to the encumbrances, easements, conditions and
restrictions contained herein and in said Exhibit "A" attached hereto and
incorporated herein by reference;
SUBJECT, FURTHER, to the Hawaii Right to Farm Act, Hawaii Revised Statutes
Chapter 165, as amended, which limits the circumstances under which pre-existing
farming activities may be deemed as a nuisance.
EXCEPTING AND RESERVING in favor of Grantor and its successors and assigns
the following:
(A) The right to grant utility easements over, upon and across any of the
easement areas described in Exhibit "A" or to grant or modify utility easements
to reflect "as built" conditions in order to facilitate any future adjustments
or modifications of the utility easements affecting said Property; provided,
however, that such right shall expire (1) year from the date hereof.
(B) All water and water rights within or appurtenant to the Property;
provided, however, that in the exercise of said rights, Grantor and its
successors and assigns shall not have the right to drill for water or otherwise
disturb the surface of the land or any improvements thereon.
SUBJECT TO, AND EXCEPTING AND RESERVING, as appurtenant to the lands which
are located adjacent to or in the vicinity of the Project in agricultural
operation (the "Agricultural Properties"), the unrestricted right to engage in
any type of farming operation, including, but not limited to, open burning,
percolating, evaporating, fertilizing, milling, generating power, water
diversion, plowing, grading, storing, hauling, spraying pesticides or
herbicides,
irrigating, crop dusting, and all other activities incidental to the planting
farming, harvesting and processing of agricultural products and by-products
which operations may from time to time cause the transmission, discharge, or
emission of surface water runoff, noise, smoke, dust, light, heat, vapors,
chemicals, vibrations or other nuisances over or upon the Property. Grantee
hereby accepts the foregoing conditions and any inconvenience, irritation or
annoyance which Grantee may experience as a result of the presence and operation
of the Agricultural Properties in the vicinity of the Project, and Grantee does
hereby assume, on Grantee's own behalf and on behalf of Grantee's tenants,
lessees, families, servants, guests, invitees, licensees, employees, or other
persons who may occupy or otherwise use the Property, any and all risks of
impairment of the use and enjoyment of the Property, loss of market value of the
Property, or any damage to property or personal injury or illness arising from
the presence and operation of the Agricultural Properties. Grantee hereby
further understands and acknowledges that neither Grantor, the Kehalani
Community Association, the owners of the Agricultural Properties, nor any of
their related entities, affiliates, successors-in-title or assigns, may be held
liable for any impairment of the use and enjoyment of the Property, loss of
market value of the Property, or any damage to property or personal injury or
illness arising from the presence and operation of the Agricultural Properties.
AND Grantor does hereby covenant with Grantee that Grantor has good right
to convey the Property, that the interest of Grantor is free and clear from all
encumbrances made by, through or under Grantor, except as herein mentioned and
as set forth in said Exhibit "A", and except for current real property taxes, if
any, which are to be prorated as of the date of recording of this instrument,
and that Grantor will warrant and defend the same unto Grantee, against the
lawful claims and demands of all persons claiming by, through or under Grantor,
except as aforesaid.
AND Grantee acknowledges and agrees that the Property is being conveyed to
Grantee in "AS IS" condition at the time of recording of this instrument, that
Grantor is expressly disclaiming any expressed or implied warranties of any kind
with respect to the condition of the Property, including, with limitation, any
warranties relating to the absence of hazardous materials in, on and under the
Property, the nature and quality of the soils and of all materials in, on, under
and above the Property and/or warranties relating to any view easements or
rights.
AND Grantee acknowledges the annexation provided for in Section I of this
instrument and further acknowledges and agrees that the Property is being sold
to Grantee subject to all of the obligations, disclosures, reservations and
easements described in the Declaration, as more particularly described in
Section I above.
AND Grantee hereby covenants and agrees with Grantor that (a) the Property
shall be used subject to the restrictions set forth in the Declaration as
supplemented by any rules of the Kehalani Community Association adopted pursuant
to the Declaration; (b) Grantee will pay all assessments and impositions of the
Kehalani Community Association and observe, perform, comply with and abide by
all other provisions of the Declaration and the Articles of Incorporation and
By-Laws of the Kehalani Community Association, as described in the Declaration,
as such documents
may be amended from time to time; and (c) Grantee will utilize the Property in
full compliance with all applicable codes, laws, ordinances, rules and
regulations.
AND Grantee hereby further covenants and agrees that Grantee shall irrigate
and maintain all landscaping contained within the portion of the County of Maui
Right-of-Way abutting KEYBOARD (Street Name), and located immediately adjacent
to the Property.
All covenants herein are covenants running with the land hereby conveyed
and shall be binding upon and shall inure to the benefit of the respective
heirs, personal and legal representatives, successors, successors in trust and
assigns of the parties hereto, according to the context thereof. The terms
"Grantor" and "Grantee", as and when used herein, or any pronouns used in place
thereof, shall mean and include the masculine and feminine, the singular or
plural number, individuals or corporations and each of their respective heirs,
personal and legal representatives, successors, successors in trust and assigns,
according to the context thereof, and that if these presents shall be signed by
two (2) or more Grantors or Grantees, all covenants of such parties shall be and
for all purposes deemed to be joint and several.
This instrument may be executed in several 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 that
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.
