AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made and entered into as of this 11th day of February,
1998, by and between X. XXXXXX HOMES, INC., a Delaware corporation ("Seller"),
and XXXXXXXX X. XXXX DEVELOPMENT CORPORATION, a Hawaii corporation
("Purchaser").
R E C I T A L S:
WHEREAS, Seller and Purchaser have entered into that certain Purchase and
Sale Agreement ("Agreement") dated of September 12, 1997;
WHEREAS, pursuant to Section 5(d) of the Agreement, Seller has provided to
Purchaser that certain ALTA boundary survey dated October 6, 1997 prepared by
Xxxxxx X. Xxxxxxx Engineering, Inc. ("ALTA Survey");
WHEREAS, the ALTA Survey reveals a number of encroachments onto the subject
property;
WHEREAS, Seller has annotated the ALTA Survey to identify by tax map key
the various parcels from which the encroachments appear to emanate, a copy of
which has been delivered to Purchaser;
WHEREAS, Seller has prepared the chart describing said tax map key parcels
together with a description of the encroachment relating to said parcels, a copy
of which is attached hereto as Exhibit "C" and incorporated for all purposes
hereof;
WHEREAS, pursuant to Section 5(d) of the Agreement, Purchaser has notified
Seller that it desires to proceed with the transactions contemplated by the
Agreement, provided that the concerns of Seller and Purchaser relating to said
encroachments are accommodated;
WHEREAS, Seller and Purchaser are entering into this Amendment to
accommodate said concerns, pursuant to and in compliance with Section 5(d) of
the Agreement; and
WHEREAS, Seller and Purchaser are entering into this Amendment to
substitute the form of the Warranty Deed by which title will be conveyed from
Seller to Purchaser.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, and for other valuable consideration, receipt whereof is
hereby acknowledged, Seller and Purchaser agree as follows:
1. Section 1 of the Agreement shall be amended to delete on page 1, line 4
"24.642 acres" and to substitute "24.520 acres" and to delete on page 2, line 6
"3. Lot 10 (0.122)".
2. Exhibit "B" attached hereto and incorporated for all purposes hereof
shall substitute for Exhibit "B" referred to in Section 8 of the Agreement.
3. Section 1 of the Agreement is hereby amended to add the following
sentence after the sentence ending with the phrase, "... collectively referred
to in this Agreement as the >Property=":
"Notwithstanding the foregoing, the exact area and dimensions of that
portion of the Property comprised of the Pending Eha Street Extension
Subdivision shall be as described in the Subdivision, as defined in Section
1.A. below."
4. Section 1.A. of the Agreement is hereby amended to add the following
after the phrase, "... incorporated for all purposes herein":
"..., and as may be further revised to exclude from the area to be sold by
Seller and purchased by Purchaser all or a portion of the encroachments
depicted on the ALTA survey map of Xxxxxx X. Xxxxxxx Engineering, Inc.
dated October 6, 1997 ("ALTA Survey"), receipt whereof is hereby
acknowledged by Seller and Purchaser;"
5. Section 2 of the Agreement is hereby amended to add the following after
the phrase "... shall be TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) in
cash":
"... as may be adjusted pursuant to the terms of this Agreement."
6. Section 5(d) is amended in its entirety to read as follows:
"(d) Seller has had the Property staked and has provided, at its expense,
the ALTA Survey of the Property. The ALTA Survey depicts various
encroachments on the Property. Seller will make a good faith effort to
adjust the boundaries of the Subdivision to exclude all of the
encroachments listed in Exhibit "C" (except for those areas relating to
Items 2, 3, 4 and 7 ), including all of the "L"-shaped area depicted in the
southeast corner of the ALTA Survey. If the Subdivision is approved as set
forth above and the parties close the transactions contemplated herein,
then Seller shall continue to own the areas so excluded from the
Subdivision after the closing and may, in its sole discretion and without
the approval of Purchaser, retain such areas or convey or grant easements
in all or a portion of such areas. The Purchase Price shall not be reduced
to reflect any of the excluded areas. Notwithstanding the preceding
sentence, the Purchase Price shall be reduced to reflect Area "A" (1,574
sq. ft.), Area "B" (1,506 sq. ft.), Area "C" (1,463 sq. ft.), Area "D"
(1,139 sq. ft.) and Area "E" (91 sq. ft.), for an aggregate square footage
of 5,773 sq. ft. or .122 acre, as shown on Exhibit "D"
2
attached hereto and incorporated for all purposes hereof. With respect to
such Areas "A" through "E", inclusive, the amount of the reduction in the
Purchase Price shall be calculated as follows: 5,773 sq. DIVIDED by
1,068,091.2 sq. ft. (24.520 acres) MULTIPLIED by $2,000,000.00 OR
$10,809.94 such that the adjusted Purchase Price shall be $1,989,190.06.
If Seller obtains final approval of the Subdivision as described
hereinabove on or before June 1, 1998, then Purchaser shall proceed with
the closing and take title subject to the encroachments not excluded from
the Subdivision. In the event that Purchaser, no later than fifteen (15)
days following the date on which the Subdivision as described hereinabove
is given final approval by the County of Maui, notifies Seller in writing
that Purchaser desires Seller to grant easements in favor of certain
persons with respect to certain encroachments, Purchaser shall also take
title subject any such easements so granted by Seller to such persons
designated by Purchaser. In addition, Purchaser shall indemnify, defend
and hold Seller harmless from and against all claims, demands, costs,
expenses, fees, losses or liabilities arising out of, or relating to, such
encroachments identified on the ALTA Survey and as described in Exhibit
"C", regardless of whether easements have been granted by Seller. The
foregoing indemnification shall survive the closing of the transactions
contemplated by this Agreement."
7. Except as set forth above and notwithstanding the time limitations
contained in Section 5(d) of the Agreement prior to the amendment thereof as set
forth in Section 6 of this Amendment, the Agreement shall remain unchanged and
is in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
Purchaser: Seller:
XXXXXXXX X. XXXX DEVELOPMENT X. XXXXXX HOMES, INC.
CORPORATION
By /s/ Xxxxxxxxx X. Xxxx By /s/ Xxxx X. Xxxxx
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Its President Its President and Chief
Executive Officer
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Its Executive Vice President and
Chief Financial Officer
EXHIBIT "B"
LAND COURT REGULAR SYSTEM
AFTER RECORDATION, RETURN BY: MAIL ( ) PICK-UP ( )
Total No. of Pages:
TMK No(s)_______:
LIMITED WARRANTY DEED
KNOW ALL BY THESE PRESENTS:
That X. XXXXXX HOMES, INC., a Delaware corporation, whose address is
at 000-X X. Xxxxx Xxxx, Xxxxxxx, XX 00000 (the "Grantor"), for and in
consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and
valuable consideration paid to Grantor by XXXXXXXX X. XXXX DEVELOPMENT
CORPORATION, a Hawaii corporation, whose address is at 000 Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxx 00000 (the "Grantee"), receipt whereof is hereby
acknowledged, does by these presents grant, bargain, sell and convey unto said
Grantee, as ITS SOLE PROPERTY, absolutely and in fee simple:
All of that certain real property more
particularly described in Exhibit "A" attached hereto and
incorporated herein by reference (the "Property").
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 said Grantee as aforesaid, absolutely and forever.
And the Grantor does hereby covenant and agree to and with said
Grantee that the Grantor is lawfully seised of the property described in Exhibit
"A" for an estate in fee simple; that Grantor has good right to convey and to
sell the property described herein; and that Grantor has not heretofore done,
committed or willingly suffered to be done or committed, any act or thing
whatsoever whereby the title and estate conveyed hereunder, or any part thereof,
are or shall be charged or encumbered, except as is set forth in Exhibit "A",
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 is herein provided;
TO HAVE AND TO HOLD the same unto Grantee as aforesaid, to Grantee's
use and benefit forever.
SUBJECT, HOWEVER, 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 a nuisance.
EXCEPTING AND RESERVING in favor of Grantor and its successors and
assigns 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 Property 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, odors, 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 risk 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 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.
Grantee acknowledges that the Property is being conveyed in an "AS IS,
WHERE IS" condition "WITH ALL FAULTS". Grantee herein represents to Grantor
that Grantee knows, will have examined and will have investigated, to the full
and complete satisfaction of Grantee, the physical nature and condition of the
Property, or Grantee will have waived such knowledge, examination and
investigation. Grantee further acknowledges that, except as expressly set forth
in that certain Purchase and Sale Agreement by and between the parties dated
September 12, 1997 (the "Purchase and Sale Agreement"), as amended February
__,1998, neither Grantor nor any agent, attorney, employee or representative of
Grantor has made or will make any representation whatsoever regarding the
Property or the subject matter of the sale provided for in said Purchase and
Sale Agreement, or any part thereof, including, without limiting the generality
of the foregoing, representations as to the condition of the Property, the value
or profitability of the Property or the suitability of the Property for
Grantee's intended use or for any use whatsoever, any applicable building,
zoning or fire laws or regulations or compliance therewith or the existence of
or compliance with any required permits or licenses, if any, of any governmental
agencies, the availability or existence of any water, sewer or other utilities,
public or private, any warranty as to the structural, mechanical, electrical,
air-conditioning, and ventilating systems of the Property, the existence or
absence of any hazardous materials, the accuracy or validity of any documents
furnished to Grantee or executed with respect to the Property, surveys, permits,
or soils reports. Grantee agrees that Grantee has relied and will be relying
solely on Grantee's own inspection and review of all aspects of the Property
with respect to all of the foregoing matters; provided, however, that Grantee
may rely upon the representations and warranties of Grantor expressly set forth
in the Purchase and Sale Agreement. Grantee assumes the risk that adverse
physical conditions may not have been revealed by its own investigations and
examinations. Further, Grantee assumes the risk of all changes in zoning, land
use, and other laws, ordinances, rules or regulations and adverse governmental
action of any kind that might affect the Property or Grantee's intended use of
the Property.
IT IS MUTUALLY AGREED that the terms "Grantor" and "Grantee", as and
when used herein, or any pronouns used in place thereof, shall mean and include
the masculine or feminine, the singular or plural number, individuals or
corporations and their and each of their respective successors, successors in
trust, heirs, legal representatives and permitted 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.
-- THE NEXT PAGE IS THE SIGNATURE PAGE --
IN WITNESS WHEREOF, the parties hereto have executed these presents on
the ______ day of February, 1998.
X. XXXXXX HOMES, INC., a Delaware
corporation
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
Grantor
XXXXXXXX X. XXXX DEVELOPMENT
CORPORATION, a Hawaii corporation
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
Grantee
