SYMPHONY HONOLULU CONDOMINIUM PURCHASE AGREEMENT, DEPOSIT RECEIPT & CONTRACT

Transcription

1 SYMPHONY HONOLULU CONDOMINIUM PURCHASE AGREEMENT, DEPOSIT RECEIPT & CONTRACT THIS CONDOMINIUM PURCHASE AGREEMENT, DEPOSIT RECEIPT & CONTRACT (the Agreement ) is made by and between OLIVERMcMILLAN PACIFIC RIM, LLC, a Hawaii limited liability company, whose place of business and post office address in th Avenue, San Diego, California (hereinafter referred to as Seller ), and the Buyer named in Section II below, and shall be effective upon the date of execution by Seller, subject to the terms, provisions, and conditions set forth in this Agreement. I. Description of Property Covered by this Agreement: Unit number and its appurtenant common interest in the common elements, including any driveways, ramps in the parking structure, utility facilities, and recreational amenities (the Unit ), which comprise a portion of the SYMPHONY HONOLULU condominium project (the Project ), located at 888 Kapiolani Boulevard, Honolulu, Hawaii 96814, TMK No: (1) : 001, 032, 047 & 048, as created and established in the Declaration of Condominium Property Regime dated as of March 4, 2013, filed in the Office of the Assistant Registrar of the Land Court of the State of Hawaii as Land Court Document No. T , as the same may be amended from time to time (hereinafter referred to as the Declaration ). The Unit floor plan number, number of bedrooms and bathrooms, net living area, common interest, parking stall(s), and storage closet/locker (if any) for the Unit are set forth opposite the Unit number on Exhibit C to the Declaration, which is incorporated herein by this reference. A description of the Unit floor plan for the Unit is set forth in Exhibit B to the Declaration, which is also incorporated herein by this reference. In connection with Buyer s execution of this Agreement Buyer shall execute and deliver a separate receipt acknowledging and confirming that Buyer has reviewed the sheet in the Condominium Map showing the location of the assigned parking stall(s) and storage room (if any) to the Unit. Standard appliances, fixtures and furnishings: Refrigerator, dishwasher, range hood with microwave, cook top, oven, washer and dryer, disposal, cabinetry, solid surface countertops, decorator plumbing fixtures, and carpeting, and/or wood, synthetic wood, vinyl, or tile flooring. Escrow: Project Broker: TITLE GUARANTY ESCROW SERVICES, INC. HEYER & ASSOCIATES LLC Main Branch 1288 Ala Moana Boulevard, Suite 206 First Floor, 235 Queen Street Honolulu, Hawaii Honolulu, Hawaii Telephone: (808) Escrow Officer: Kathy Miller Fax: (808) Telephone: (808) Fax: (808) II. Information Concerning Buyer (Full name, please; no initials): 1. Name: Addr: City: State/Country: Zip Code: Res. Phone: Bus. Phone: Fax No.: ( ) Single ( ) Married Full name of spouse: Will vesting of title include spouse? ( ) Yes ( ) No

2 2. Name: Addr: City: State/Country: Zip Code: Res. Phone: Bus. Phone: Fax No.: ( ) Single ( ) Married Full name of spouse: Will vesting of title include spouse? ( ) Yes ( ) No 3. If Buyer is a Corporation, Partnership or Limited Liability Company: Full name of corporation, partnership or limited liability company: ( ) Corporation ( ) General Partnership ( ) Limited Partnership ( ) Limited Liability Company State of incorporation/formation: Federal identification no.: Business address: City: State/Country: Zip Code: Print full name(s) of authorized officer(s) or partner(s) signing this Agreement: Name: Position: Mailing Addr: City: State/Country: Zip Code: Res. Phone: Bus. Phone: Fax No. Name: Position: Mailing Addr: City: State/Country: Zip Code: Res. Phone: Bus. Phone: Fax No. The following documents shall be delivered by Buyer to Seller and/or Escrow upon signing this Agreement, not less than thirty (30) calendar days prior to the Date of Pre-Closing (as defined in Paragraph 9(b) of the General Terms and Conditions attached to this Agreement (the General Terms and Conditions ) or the Scheduled Closing Date (as defined in Paragraph 9(a) of the General Terms and Conditions), whichever date shall first occur: (i) if Buyer is a corporation, (a) a good standing certificate issued by the Department of Commerce and Consumer Affairs of the State of Hawaii ( DCCA ) for a Hawaii corporation, or by the state of such corporation s formation if a foreign (non- Hawaii corporation), and (b) a resolution of the board of directors of such corporation authorizing the purchase hereunder and declaring which officer(s) is (are) authorized to execute this Agreement and all documents in connection herewith; (ii) if Buyer is a Hawaii limited liability company or limited liability partnership, (a) a good standing certificate issued by the DCCA for a Hawaii limited liability company or limited liability partnership, or by the state of such limited liability company s or limited liability partnership s formation if a foreign (non-hawaii limited liability company or limited liability partnership), and (b) a resolution of the member(s) of such limited liability company or the partner(s) of such limited liability partnership, authorizing the purchase hereunder and declaring which member(s) or manager(s) or partner(s) is (are) authorized to execute this Agreement and all documents in connection herewith; (iii) if Buyer is a corporation, limited liability company or partnership, evidence that Buyer has

3 registered to do business in the State of Hawaii or is not required to so register; (iv) if Buyer is a partnership or limited partnership, a copy of the Partnership Agreement or Limited Partnership Agreement (as applicable) and a copy of the partnership or limited partnership registration statement filed with DCCA; and (v) if Buyer is a trustee, a copy of the trust instrument or short form thereof, with an appropriate recitation as to the authority of the trustee. BUYER ACKNOWLEDGES AND AGREES THAT IF BUYER IS A CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER ENTITY THAT IS NOT A NATURAL PERSON, SELLER MAY REQUIRE, AS A CONDITION TO ACCEPTANCE OF THIS AGREEMENT, THAT BUYER'S OBLIGATIONS UNDER THIS AGREEMENT BE GUARANTEED BY A FINANCIALLY RESPONSIBLE PERSON WHO IS ACCEPTABLE TO SELLER, IN ITS SOLE DISCRETION. Nature of Tenancy: ( ) Severalty (One Buyer) ( ) Tenants in Common (Two or more persons; no rights of survivorship) ( ) Joint Tenants (Two or more persons with rights of survivorship) ( ) Tenants by the Entirety (Husband & wife or reciprocal beneficiaries with rights of survivorship) ( ) To be determined Title shall vest exactly as follows: In the event that Buyer fails to designate the nature of tenancy prior to the Date of Pre-Closing, Buyer, if a sole owner, will take title as a tenant in severalty; multiple Buyers other than married couples will take title as tenants in common in equal shares; Buyer, if a married couple, will take title as tenants by the entirety. If Buyer consists of at least one married couple, the individuals in a married couple will take title as tenants by the entirety as to each other, and each married couple will be a tenant in common in equal shares with every other couple, individual, corporation, limited liability company or partnership. Whenever a couple, individual, corporation, limited liability company or partnership takes title with another couple, individual, corporation, limited liability company or partnership as tenants in common, each tenant in common will take an equal interest, unless otherwise specified. If after designating Buyer s tenancy, Buyer should elect to change the tenancy so designated, Buyer shall bear all costs (if any) to change such tenancy, including without limitation, any costs to redraft the Unit Deed. Reason for Purchase (for mortgagee's use in processing Buyer's loan application): ( ) Primary Residence ( ) Second Home ( ) Investment III. Purchase Price and Method of Payment: 1. Purchase Price: $ 2. Method of Payment: ( ) All cash ( ) Cash down payment and mortgage loan Payment A: Payment B: Payment C: Payment D: $, being an amount equal to five percent (5.0%) of the Purchase Price, payable upon execution of this Agreement by Buyer. $, being an amount equal to five percent (5.0%) of the Purchase Price, payable not later than thirty (30) days after the date of Seller s delivery to and Buyer s receipt of the Developer s Public Report and the CFPB Property Report, unless Buyer exercises either of Buyer s statutory cancellation rights prior to that date. $, being an amount equal to five percent (5.0%) of the Purchase Price, payable on the later of (a) November 1, 2013, or (B) at the same time as Payment B above. $, being the remaining balance of the Purchase Price, payable by Buyer on the earlier of: (a) the Date of Pre-Closing, or (b) four (4) business days prior to the

4 Scheduled Closing Date; provided that if a portion of the balance of the Purchase Price is being paid from the proceeds of Buyer's Permanent Loan (as defined in Paragraph 1 of the General Terms and Conditions), the mortgage loan proceeds may be paid no later than the date specified in the Seller s Pre-Closing Notice (if applicable), but in no event later than two (2) business days prior to the Scheduled Closing Date. NOTE: Payments A, B, C and D shall each be payable by way of check, cashier s check or wire transfer made payable to TITLE GUARANTY ESCROW SERVICES, INC.; provided that a portion of Payment D may be payable by way of mortgage loan proceeds. If a Buyer makes any payment by check it shall not be deemed paid and received until the check has cleared through the financial institution in which the account against which the check is written is held. If a Buyer makes any payment by wire transfer it shall not be deemed paid and received until the wire transfer has cleared and been deposited into the project escrow account established by Escrow. It is understood that if Payment A does not clear within five (5) business days following its submission for payment by Escrow that Seller shall have the right and option to immediately cancel and terminate this Agreement notwithstanding any provision to the contrary in Paragraph 14(b) of the General Terms and Conditions. 3. Additional Sums to be Paid by Buyer: (a) A Project start-up fee (being a non-refundable, nontransferable start-up fee for the Association of Unit Owners) in an amount fixed by multiplying one month s estimated maintenance fees for the Unit by 3; (b) one (1) month s estimated maintenance fees for the Unit as an advance payment for the initial month s maintenance fees payable by a Unit Owner; and (c) all estimated closing costs and prorations payable by Buyer, as estimated by Escrow, shall be payable by Buyer to Escrow on the earlier of (i) the Date of Pre-Closing as instructed in the Seller s Pre-Closing Notice pursuant to Paragraph 9(b) of the General Terms and Conditions below, or (ii) four (4) business days prior to the Scheduled Closing Date. If Buyer has pre-closed and Escrow shall determine prior to the Date of Closing that additional amounts are due to fully pay all such closing costs and prorations, then, and in such event, Buyer shall pay the additional amounts to Escrow within five (5) calendar days of Buyer s receipt of such notice from Escrow. If any excess amounts are prepaid by Buyer with respect to closing costs and prorations, then such excess amounts shall be refunded to Buyer by Escrow within a reasonable period of time after the Date of Closing. For purposes of this Agreement, the Project start-up fee is not an advance payment of future maintenance fee assessments but rather is intended to and shall be used to fund and pay for all costs and expenses typically associated with the opening of a new residential building, including by way of example and not limitation, office furniture and equipment for the resident manager (including computer(s) and software programs), uniforms for the Association staff, initial maintenance supplies and equipment for the Project, artwork for the Common Elements, luggage and shopping carts, communications equipment for Association staff, secured entry fobs or cards, and the initial premiums for the Project insurance. Seller shall have the right to use the Project start up fees to pay for these costs and expenses and/or to be reimbursed for the cost of the same if previously purchased and paid for by Seller. IV. Agreements: 1. Agreement to Purchase. Seller hereby agrees to sell to Buyer and Buyer hereby agrees to purchase from Seller the Unit, the undivided interest in the common elements, the appurtenant limited common elements, appliances and furnishings described in Section I above (the Property ), for the Purchase Price and according to the Method of Payment described in Section III above, subject to the terms, provisions and conditions set forth in this Agreement and the attached General Terms and Conditions which are incorporated by reference and made a part of this Agreement. By signing this Agreement, Buyer confirms that the General Terms and Conditions attached hereto were attached to this Agreement at the time of Buyer s execution of this Agreement, and that all of the same are incorporated into and made a part of this Agreement. 2. Hawaii Statutory Cancellation Right. Pursuant to Section 514B-86 of the Hawaii Revised Statutes, Buyer may cancel this Agreement at any time up to midnight of the thirtieth (30 th ) day after the later of: (a) the date the Buyer executes this Agreement, or

5 (b) the date on which the items specified in Section 514B-86(a)(1) have been delivered to Buyer, including without limitation, the notice of Buyer s thirty-day cancellation right on the form prescribed by the Commission (the Notice of Right to Cancel ), or (c) the date on which Buyer has been provided with a true copy of the current Property Report covering the Project issued an effective date under the Interstate Land Sales Full Disclosure Act (15 U.S.C. Chapter 42, 1701 et seq.) by the United States Bureau of Consumer Financial Protection (the CFPB Property Report ). 3. Waiver of Hawaii Statutory Cancellation Right. The Buyer may waive the Hawaii statutory right to cancel, or shall be deemed to have waived the right to cancel, by: (a) Checking the waiver box on the Notice of Right to Cancel provided to Buyer and delivering it to the Seller; or (b) Agreement; or Letting the thirty-day cancellation period expire without taking action to cancel this (c) Closing the purchase of the Unit under this Agreement before the Hawaii statutory cancellation period expires. NOTE: No waiver is applicable to the Buyer s cancellation rights under the CFPB Property Report pursuant to the Interstate Land Sales Act and as set forth in Section VII below. 4. Acceptance by Seller. The signature of the Project Sales Agent on this Agreement only acknowledges receipt of the Payment(s) paid with this Agreement and does not constitute acceptance by Seller. Receipt and deposit of Buyer s funds do not constitute Seller s acceptance of this offer. Seller may hold Buyer s deposit check uncashed until Seller accepts this Agreement. This Agreement shall not be deemed accepted and shall not be of any force and effect until it has been executed by Seller and delivered to Escrow. Seller s sales representatives are not authorized to accept this Agreement. Seller reserves the right in its sole and absolute discretion to not accept this Agreement. If Seller does not accept this Agreement, then this Agreement shall be automatically revoked and all funds Buyer has deposited with Seller shall be refunded to Buyer within ten (10) days thereafter. When accepted by Seller, this Agreement constitutes the sole agreement between Buyer and Seller relating to a legally binding purchase contract for the purchase of the Property. There are no collateral understandings, representations or agreements, oral or written, between Seller and Buyer, other than those contained herein. No sales representative, employee or other agent of Seller has the authority to modify the terms of this Agreement or to make any agreements, representations or promises on behalf of Seller. Therefore, although Buyer has had, and in the future may have conversations with sales representatives or other agents of Seller, none of the information contained in such conversations including representations, promises or statements of any kind shall be binding upon Seller unless the same are added by written addenda attached hereto and executed by Buyer and Seller. V. Receipt and Review of Developer s Public Report, CFPB Property Report, and Project Documents: 1. Receipt of Public Reports and Project Documents. Buyer acknowledges that Buyer has received a copy of the Developer s Public Report and the CFPB Property Report for the Project (collectively, the Public Reports ) prior to signing this Agreement. Buyer also acknowledges that Buyer has received a copy of the Declaration, the Bylaws of the Association of Unit Owners of Symphony Honolulu, as amended (the Bylaws ), the House Rules for Symphony Honolulu (the House Rules ), the form of Unit Deed (the Unit Deed ), and the Project Escrow Agreement with Title Guaranty Escrow Services, Inc. (the Escrow Agreement ). Buyer further agrees and acknowledges that Buyer has been informed by Seller that a copy of the recorded condominium map for the Project (the Condominium Map ) is available for examination at the Project sales office or if it is impractical for Buyer to do so that Seller will make available a letter-sized copy of the Condominium Map by or facsimile transmission

6 2. Reasonable Opportunity to Review Public Reports and Project Documents. BUYER ACKNOWLEDGES AND UNDERSTANDS THAT BUYER IS BEING PROVIDED WITH A REASONABLE OPPORTUNITY TO READ THE PUBLIC REPORT(S) FOR THE PROJECT AND THE DECLARATION, BYLAWS, HOUSE RULES, UNIT DEED, AND ESCROW AGREEMENT AND TO EXAMINE THE CONDOMINIUM MAP PRIOR TO THE DATE THAT BUYER S STATUTORY CANCELLATION RIGHTS UNDER SECTION 514B-86 OF THE HAWAII REVISED STATUTES AND THE FEDERAL INTERSTATE LAND SALES ACT BOTH EXPIRE, AND THAT ALL OF SAID DOCUMENTS ARE INCORPORATED IN AND ARE A PART OF THIS AGREEMENT WHEN IT BECOMES FULLY BINDING. 3. Deemed Approval of Project Documents. Buyer further understands and accepts that (a) upon Buyer s waiver or deemed waiver of the statutory 30-day cancellation right under Section 514B-86 of the Hawaii Revised Statutes, and (b) the expiration of the cancellation right under the federal Interstate Land Sales Act, that Buyer shall be deemed to have approved and accepted the terms of all of said Project Documents. 4. Buyer Advised to Consult with Real Estate Consultant or Attorney. Buyer further acknowledges that Buyer has been advised to consult with a real estate consultant or attorney of Buyer s choice with respect to the legal meaning and interpretation of any of the obligations, undertakings, covenants, and agreements contained in any of the Project Documents. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SECTIONS VI, VII AND SIGNATURES APPEAR ON FOLLOWING PAGE

7 VI. Agency Disclosure: BUYER ACKNOWLEDGES AND CONFIRMS THAT IN CONNECTION WITH THE SALE OF THE PROPERTY BY SELLER TO BUYER, PROJECT BROKER AND ALL OF ITS SALES PERSONS AND BROKERS HAVE ACTED AND WILL CONTINUE TO ACT AS AGENT FOR AND SOLELY ON BEHALF OF SELLER, AND DO NOT REPRESENT BUYER. IN THE EVENT THAT BUYER IS REPRESENTED BY A REAL ESTATE BROKER ( BUYER S BROKER ), BUYER ACKNOWLEDGES AND CONFIRMS THAT BUYER S BROKER AND ALL OF ITS SALES PERSONS AND BROKERS HAVE ACTED AND WILL CONTINUE TO ACT AS AGENT FOR AND SOLELY ON BEHALF OF BUYER, AND SUCH REPRESENTATION SHALL BE EVIDENCED BY THE SEPARATE COOPERATING BROKER AGREEMENT ATTACHED HERETO AS ADDENDUM CB AND EXECUTED BY AND BETWEEN PROJECT BROKER AND BUYER'S BROKER. Cooperating Broker Agreement is attached as Addendum CB. ( ) Yes ( ) No Buyer s Initials VII. Cancellation Option Pursuant to Interstate Land Sales Act. YOU HAVE THE OPTION TO CANCEL YOUR CONTRACT OR AGREEMENT OF SALE BY NOTICE TO THE SELLER UNTIL MIDNIGHT OF THE SEVENTH DAY FOLLOWING THE SIGNING OF THE CONTRACT OR AGREEMENT. IF YOU DID NOT RECEIVE A PROPERTY REPORT PREPARED PURSUANT TO THE RULES AND REGULATIONS OF THE BUREAU OF CONSUMER FINANCIAL PROTECTION, IN ADVANCE OF YOUR SIGNING THE CONTRACT OR AGREEMENT, THE CONTRACT OR AGREEMENT OF SALE MAY BE CANCELLED AT YOUR OPTION FOR TWO (2) YEARS FROM THE DATE OF SIGNING. NOTE: The aforementioned right to cancel this Agreement shall be in addition to your cancellation right under Hawaii law set forth in Section IV.2 of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth hereinbelow. BUYER : Date: Date: Date: Date: Date: Date: SELLER : OLIVERMcMILLAN PACIFIC RIM, LLC By Name: Its Authorized Signatory Date:, 201 Receipt of Buyer's $ (Payment A) acknowledged this day of, 201 by: HEYER & ASSOCIATES LLC Sales Agent (Print Name)

8 1. PAYMENT OF PURCHASE PRICE; FINANCING. GENERAL TERMS AND CONDITIONS OF CONDOMINIUM PURCHASE AGREEMENT, DEPOSIT RECEIPT & CONTRACT (a) Application for Qualification Letter Confirming Buyer s Ability to Pay Purchase Price. Within ten (10) calendar days after the date Seller accepts this Agreement, Buyer shall submit to one of the financial institutions designated by Seller from time to time ( Qualification Agent ) an application for a qualification letter, together with such additional information and documents as Qualification Agent shall require or deem necessary or appropriate to confirm (i) Buyer's ability to pay the Purchase Price from Buyer's own funds, or (ii) Buyer s ability to obtain a mortgage loan in an amount at least equal to the portion of the Purchase Price to be paid by mortgage loan proceeds ( Qualification Letter ). It is understood and accepted that only a Qualification Letter issued by a Qualification Agent approved and designated by Seller shall comply with the requirements of this Agreement. Such information and documents may include Buyer's financial statement(s), tax returns, deposit and income verifications, and such other information and documents as Seller may reasonably require. Buyer shall pay any and all processing or other fees or charges associated with the issuance of the Qualification Letter. (b) Qualification Letter. Within thirty (30) calendar days of Seller s acceptance of this Agreement, Buyer must submit to Seller a Qualification Letter, in form and content acceptable to Seller (in Seller s sole discretion), issued by Qualification Agent. (c) Buyer s Failure to Obtain Qualification Letter; Buyer's/Seller's Option to Terminate. If Buyer shall have applied for a Qualification Letter and diligently pursued such application as herein provided, and Buyer does not obtain a Qualification Letter in form and content acceptable to Seller (in Seller s sole discretion) within thirty (30) calendar days of Seller s acceptance of this Agreement, then and in such event, Seller or Buyer shall have the right and option to terminate this Agreement and cause Escrow to refund to Buyer all monies previously paid by Buyer, with interest to the extent provided in Paragraph 2(b) hereinbelow, less Escrow s cancellation fee and any other actual expenses incurred by reason of Buyer having signed this Agreement to the extent provided in Paragraph 2(b) hereinbelow. (d) Mortgage Financing. If, as evidenced by the Qualification Letter, Buyer will be utilizing mortgage financing to pay for a portion of the Purchase Price, then the following provisions shall be applicable: (i) Buyer represents and understands that Buyer is solely responsible for taking all necessary and appropriate steps as requested from time to time by (A) the Qualification Agent or (B) a lender arranged for, by or through the Qualification Agent or (C) selected by Buyer (the applicable one of (A), (B), or (C) being the Buyer's Permanent Lender ) to complete the process of applying for and obtaining the required mortgage loan to pay for the designated portion of the Purchase Price to be paid by mortgage loan proceeds ( Buyer s Permanent Loan ) as set forth in this Agreement from Buyer's Permanent Lender. No guarantee has been given by Seller or their agents or sales representatives that Buyer will either qualify for financing offered by or through the Qualification Agent or Buyer s Permanent Lender or be able to obtain any other loan or financing. All financing and the terms and conditions thereof, including impound payments and interest rate, are a matter of concern solely between Buyer and Buyer s Permanent Lender and shall not affect the rights or obligations of Seller or Buyer. The sale and purchase of the Unit is not contingent upon Buyer s ability to retain the interest rate quoted at the time of approval of the Qualification Letter or Buyer s Permanent Loan, and Buyer will be required to pay the interest charged by Buyer s Permanent Lender at the Close of Escrow. Buyer is solely responsible for any loan fees or other charges payable to Buyer s Permanent Lender in processing, issuing or canceling Buyer s mortgage loan. It is further understood that Escrow may charge an additional escrow fee for the administration, handling, and processing of a Buyer s Permanent Loan with a lender who does not have and/or process the Buyer s Permanent Loan through an office in Hawaii, and that Buyer shall be fully responsible for any such additional escrow fee. The Buyer acknowledges and confirms that it is the sole responsibility of the Buyer to remain qualified for the Buyer s Permanent Loan and Buyer shall not take or fail to take any action for the purpose or intent of being subsequently denied. (ii) Buyer agrees to promptly submit to Buyer s Permanent Lender, as and when required, all verifications, authorizations, certifications, tax returns and other documents necessary or appropriate for Buyer s Permanent Lender to issue and/or reconfirm the written commitment for Buyer s Permanent Loan. If the Qualification Letter is issued more than one hundred twenty (120) calendar days prior to the Scheduled Closing Date, then Buyer s Permanent Lender will likely require that Buyer reconfirm and re-verify certain information approximately ninety (90) calendar days prior to the Scheduled Closing Date. (iii) Buyer covenants and agrees that Buyer will not knowingly make or allow to be made any changes to Buyer s financial creditworthiness following issuance of the Qualification Letter which may adversely

9 affect Buyer s ability to maintain its qualification for the mortgage loan required to close the purchase of the Unit under this Agreement. The Buyer acknowledges and confirms that it is the sole responsibility of the Buyer to remain qualified for the Buyer s Permanent Loan and Buyer shall not take or fail to take any action for the purpose or intent of subsequently obtaining a loan denial from Buyer s Permanent Lender. If Buyer does not act in good faith hereunder or otherwise comply with any of the requirements of Paragraph 1(d) strictly within the time frames set forth herein, Buyer shall be in default under this Agreement, and Seller may then cancel Escrow, terminate this Agreement and proceed in accordance with Paragraph 14 hereinbelow. (e) Reconfirmation of Cash Purchase; Seller's Option to Terminate. If Buyer is paying the entire Purchase Price in cash and Seller so requires, then no later than sixty (60) calendar days and no earlier than ninety (90) calendar days prior to the Scheduled Closing Date, Buyer shall submit to Seller such written evidence as Seller may reasonably require from Buyer's bankers or accountants or other persons to reconfirm that Buyer the cash funds necessary to pay the Purchase Price in cash on the Date of Closing are available. It is understood by Buyer that it is Buyer s obligation to assure that the cash funds which were available at the time of the issuance of the Qualification Letter remain available for purposes of consummating the purchase of the Unit on the Date of Closing. If Seller, in its sole discretion, after reviewing the written evidence submitted by Buyer, is not satisfied as to Buyer's continued ability to make such cash payments and/or Seller determines that Buyer has not acted in good faith hereunder or otherwise complied with the requirements of this Paragraph 1, then, and in such event, Buyer shall be in default under this Agreement, and Seller may cancel Escrow, terminate this Agreement and proceed in accordance with Paragraph 14 hereinbelow. 2. ESCROW ARRANGEMENTS. (a) Deposit All Funds with Escrow. Buyer agrees that all funds to be paid under this Agreement shall be deposited with Escrow under the terms of the Escrow Agreement dated January 15, 2013, between Seller and Escrow (the Escrow Agreement ). Buyer hereby authorizes and instructs Escrow to comply with and to disburse all funds deposited with Escrow in accordance with the terms of the Escrow Agreement. (b) Interest on Funds Received and Held by Escrow. Buyer further agrees that all funds received by Escrow may be held together with other monies received by Escrow. If Buyer so elects, all such funds received by Escrow may be deposited into an interest bearing account or accounts in a federally insured bank or savings and loan institution selected by Seller, in its sole discretion, with its principal place of business in Honolulu, Hawaii. Buyer shall pay all costs and expenses incurred or charged by Escrow for the purpose of setting up, maintaining and closing such interest bearing account(s). In connection with and as a condition to the set up of any interest bearing account(s), Buyer shall provide Escrow with an executed W-9 Form to verify Buyer s social security number, federal tax identification number and/or passport number for purposes of reporting any interest earned on Buyer s deposit account(s). Except as provided in Paragraph 14 below, all interest earned from such account(s) from the date of Seller's acceptance of this Agreement shall be credited to Buyer's account; provided that no interest shall be credited to Buyer (i) for the period prior to Seller's acceptance of this Agreement; or (ii) on funds held by Escrow for less than sixty (60) calendar days after Seller's acceptance of this Agreement; or (iii) on funds held by Escrow during the sixty (60) calendar days immediately preceding the Scheduled Closing Date. Any interest earned on funds in escrow which is not required by the terms of this Agreement to be credited to the account of Buyer shall be paid to Seller. Buyer and Seller hereby jointly instruct Escrow pursuant to the provisions of and , Hawaii Revised Statutes, as amended, to credit the interest earned on all funds received by Escrow in accordance with this paragraph. (c) Disbursement of Escrow Funds to Pay for Construction Costs. Buyer further agrees that after the Real Estate Commission's issuance of an effective date for the Developer s Public Report, and provided that the City and County of Honolulu has (i) issued the Building Permit for the Project, and (ii) Seller has satisfied all other preconditions/requirements of Section 514B-92, Hawaii Revised Statutes, as amended, then, and in such event, Payments A, B and C provided for in Section III, Paragraph 2 of this Agreement may be disbursed by Escrow subject to the terms of the Escrow Agreement prior to the date of completion of the Project as permitted by 514B- 92, Hawaii Revised Statutes, as amended, to pay for the costs of constructing the Project. Seller confirms that no request will be made for Escrow to disburse any such funds unless and until the City and County of Honolulu has issued the Building Permit for the Project and all other preconditions/requirements of Section 514B-92, Hawaii Revised Statutes, as amended, have been satisfied by Seller. 3. THE PROJECT

10 (a) Plans Approval. Seller is constructing a condominium project on the land described in the Declaration, in accordance with plans and specifications prepared by Architect s Hawaii, Ltd. (the Architect ), subject to such changes or modifications as the Architect and/or Seller deem appropriate and necessary. Such plans and specifications are on file at Seller's office, and Buyer acknowledges that Buyer has had an adequate opportunity to examine them, and accepts them with such changes or modifications as the Architect and/or Seller shall deem necessary, and that those plans and specifications, as they may be so changed or modified, are incorporated in and are a part of this Agreement. (b) Seller's Right to Modify Documents. Seller reserves the right to modify the Declaration, Bylaws, House Rules, Condominium Map, the form of Unit Deed and other documents as may be required by law, any title insurance company, any institutional mortgagee or any governmental agency, or as otherwise may be deemed appropriate by Seller, and Buyer authorizes Seller to make and specifically approves all changes to said documents and the Project, provided that no such modification shall: (i) (ii) (iii) Materially increase Buyer's share of common expenses without Buyer's consent; or Reduce the obligations of Seller for common expenses on unsold Units; or Require a substantial physical change of the Unit or of the building in which the Unit is located. Buyer acknowledges that the Architect in its sole discretion may increase or decrease the thickness of any wall within the Unit resulting in the room dimensions becoming smaller or larger than those shown on the Condominium Map, and Buyer hereby authorizes and specifically approves any such changes. Seller further reserves the right to require alterations to the Project (and to modify any of such documents accordingly) to change the configuration of, to alter the number of rooms of, to decrease or increase the size of, or to change the location of any other Unit and/or parking area, and to make other minor changes in the Unit, any of the other Units or the common elements of the Project (the Common Elements ). Seller may increase or decrease the number of parking stalls which may be assigned to the Unit, provided that in no event shall the Unit be assigned less than one (1) parking stall. No taking by eminent domain of an easement or other limited right or of a portion of the Common Elements which does not in any such case substantially interfere with or diminish the practical enjoyment and use of the Common Elements by Buyer shall be deemed grounds for cancellation of this Agreement. (c) Condominium Map. The Condominium Map for the Project, as amended, which has been filed with the Office of the Assistant Registrar of the Land Court of the State of Hawaii and the Real Estate Commission is intended only to show the layout, location, Unit numbers and dimensions of the Units and approximate elevations and parking plans of the Project. Buyer acknowledges that the Condominium Map, consisting of the floor plans and elevations, is not intended to be and does not constitute any representation or warranty by Seller. (d) Conditions Acknowledged by Buyer. Buyer specifically acknowledges that: (i) Seller s Easement for Sales Activities. Under the terms of the Declaration, Seller and its representatives, licensees, and invitees have the right and an easement to conduct extensive sales activities on the Common Elements (including, but not limited to, the Limited Common Elements) and from any Unit owned or leased by Seller. This right includes, but it is not limited to, the right: (a) to permit purchasers and prospective purchasers and their family members and guests, to come onto the Project through the Common Elements intended for access to and from any nearby roads, streets or highways; (b) to permit purchasers and prospective purchasers to park motor vehicles in any unassigned parking stalls; (c) to show the Project (including, but not limited to, model Units) to purchasers and prospective purchasers (who will have a right of ingress and egress for these purposes); (d) to use Units owned or leased by Seller as model Units, sales, management, and/or administrative offices; and (e) to use banners, signs or other extensive sales displays and activities at the Project. This easement applies to activities conducted in connection with the initial sale of any Unit in the Project. Buyer understands, acknowledges and accepts that these easements and the use of them may result in increased traffic, noise, and related inconveniences. Buyer gives up (in legal terms, waives, releases and discharges ) any rights, claims or actions Buyer may have, now or in the future, against Seller and its representatives, licensees, invitees, successors and assigns and arising from or with respect to the exercise of this easement. (ii) Seller s Easement for Noise, Dust, Etc. Seller and its representatives, licensees, and invitees, have an easement over, under and upon the Project and all of its parts, to create and cause noise, dust, soot, smoke, odors, surface water runoff, vibrations, and other nuisances or hazards in connection with (a) the exercise of the easements Seller has reserved under the Declaration, or (b) the exercise of the Seller s reserved rights or any other rights of Seller as described in the Declaration. Buyer (i) understands, acknowledges and accepts that these activities may result in noise, dust, soot, smoke, odors, surface water runoff, vibrations and other

11 nuisances and hazards, (ii) consents to this activity, and (iii) gives up (in legal terms, waives, releases and discharges ) any rights, claims or actions that Buyer may have, now or in the future, against Seller and/or its representatives, licensees, invitees, successors and assigns with respect to such easement. Buyer shall assume the risk of any property damage, personal injury or loss in property value which may arise out of or from these activities. (iii) Seller s Easements for Access. Seller and its representatives, licensees, invitees (including any governmental officials that Seller may invite), successors and assigns, have reserved under the Declaration an easement over, under and upon the Project, including the Common Elements, Limited Common Elements, and any Unit, as may be reasonably necessary or convenient to complete any improvements to the Project, and to correct any defects and other punch list items in the Common Elements, Limited Common Elements, or any Unit or to the exercise of any of the other Seller s Reserved Rights under the Declaration. The easement to complete improvements to the Project or to correct defects or punch list items terminates sixty (60) months after the later to occur of (i) the filing/recording date of the first deed for an Unit in the Project; or (ii) the date of completion (as the term is used in Chapter 507, Part II, Hawaii Revised Statutes) of the improvement(s) constituting a portion of the Project to be completed or corrected. (iv) Seller s Reserved Right to Utilize Common Elements. Seller reserves the right, for itself, its representatives, licensees and invitees, to utilize the Common Elements for ingress and egress, for the exercise of any of Seller s reserved rights under the Declaration, for access to parking spaces and model Units within the Project, and in order to show the Common Elements to prospective purchasers. (v) Seller s Reserved Right to Grant Easements. Seller reserves the right to grant to any public or governmental authority or utility company rights-of-way and other easements which are for the sole benefit of the Project, or which do not materially and adversely interfere with the use, nor materially and adversely impair the value, of the Project or any Unit in it, over, across, under and through the Common Elements for lines and other transmission facilities and appurtenances for electricity, gas, telephone, water, sewer, drainage and other public services and utilities, and rights to enter for the purpose of installing, repairing, altering and removing such lines and facilities and of trimming any trees in the way thereof. (vi) School Information. Seller has made no representations, warranties or assurances to Buyer that the Project will be included within any particular school district. Buyer is responsible for determining the availability of schools and the same are subject to change by the applicable school district. (vii) Changes in Price, Size and Design. Seller has made no promises, representations or assurances to Buyer regarding the pricing, size, design or configuration of any Units in the Project other than the Unit covered by this Agreement, and Buyer acknowledges that as market conditions or other facts change, such matters may be subject to change, including reduction in prices of such other Units in the Project or sales incentives offered in connection therewith, and changes in size, design or product type of such other Units in the Project. (viii) View Impairment. Neither Seller nor any of its authorized agents, representatives or employees has made any representations, warranties or promises concerning any makai, mauka, diamond head or ewa views, present or future, that may be enjoyed from all or any portion of the Unit or the Project. The views from the Unit or Project may change, be affected or obstructed by (i) construction or installation of buildings, improvements, structures, walls and/or landscaping by Seller or owners of other properties outside the Project lands and/or (ii) the growth of trees, landscaping and/or other vegetation within or outside the Project. For example, the land located across Kapiolani Boulevard in a makai direction which is currently occupied by commercial/industrial low and mid-rise improvements could be combined and a large scale project or projects could be constructed in the future and which future development(s) could materially affect the makai and/or ewa views from the Units and/or other portions of the Project. The Declaration does not contain any provisions intended to protect the view from any Unit or any other portion of the Project in any direction. (ix) Tax and Insurance Estimates. Any sum estimated for taxes or insurance affecting the Unit or Project may increase or decrease depending upon fluctuation of real property taxes or insurance rates. (x) Noise; Traffic. Noise, dust, vibrations, and/or traffic in the vicinity of the Project may increase if and when any structures are constructed on lands adjacent to or in the vicinity of the Project. Buyer and every other person who has any interest in the Project or who has the right to use the Project or any part of it gives up (in legal terms, waives, releases and discharges ) any rights, claims or actions that such person may have, now or in the future, against Seller and its representatives, licensees, successors and assigns, and arising directly or indirectly out of or from such obstruction of views, additional noise, dust, vibrations, and/or additional traffic by reason of such further development. (xi) Noise; Traffic; Dust; Odors; Vibrations from Commercial Unit(s). Noise, traffic, dust, odors, vibrations, light, heat, vapors and other nuisances (collectively, Commercial Nuisances ) may occur from time to time as a result of the use of the Commercial Unit(s) and any appurtenant Limited Common Elements by the Owners thereof and their respective representatives, employees, staff, customers, guests, tenants, licensees, contractors, or business invitees, including without limitation, those Commercial Nuisances associated with automobile servicing and repairs, the use of mechanical and hydraulic equipment, restaurant noises and odors, vehicular and pedestrian traffic, and/or other commercial, industrial or office uses to be located therein. Buyer and every other person who has any interest in the Project or who has the right to use the Project or any part of it gives up (in legal terms, waives, releases and discharges ) any rights, claims or actions that such person may have, now or in the future, against the Seller and the Owner(s) of the Commercial Unit(s) and their respective representatives, employees, staff, customers, guest, tenants, licensees, contractors, business invitees, or successors and assigns,

12 and arising directly or indirectly out of or from such additional noise, traffic, dust, odors and/or vibrations arising out of or by reason of the intended use and operation of the Commercial Unit(s). (xii) Security. Seller has the right, but not the duty to take steps designed to make the Project safer than it otherwise might be. Seller and each of its representatives are not in any way to be considered insurers or guarantors of safety or security within the Project, nor shall any of them be held liable for any loss or damage by reason of failure to provide adequate or effective safety or security measures. Seller makes no representation or warranty that any fire protection, burglar alarm, or other safety or security system or measures, including anything intended to limit access to the Project, (i) will be effective in all cases and cannot be compromised or circumvented; (ii) will prevent all losses; (iii) will limit access to the Project; or (iv) will provide the detection or protection which it is designed or intended to provide. Each person using the Project assumes all risks of personal injury, death, or loss or damage to property resulting from the acts of third parties. (xiii) Environmental Issue Mold. Mold and mold spores are present throughout the environment and residential condominium construction cannot practicably be designed to exclude the introduction of mold spores. All mold is not necessarily harmful, but certain strains of mold have been found to have adverse health effects on susceptible persons. Moisture is the primary mold growth factor that can be controlled in a condominium setting. Affirmative steps taken by owners of Units in the Project ( Owners ) to minimize or control moisture in their respective Units can minimize or eliminate mold growth in a residential condominium. Owners will be advised via the Bylaws regarding positive steps that should be taken to reduce or eliminate the occurrence of mold growth in their Units and thereby minimize any possible adverse health effects that may be caused by mold. Seller cannot ensure that mold and mold spores will not be present in the Project. The failure of an Owner to follow the steps set forth in the Bylaws may increase the risk of mold growth and mold spores being present in their Units. Seller shall not be liable for any actual, special, incidental or consequential damages based on any legal theory whatsoever, including, but not limited to, strict liability, breach of express or implied warranty, negligence or any other legal theory, with respect to the presence and/or existence of molds, mildew and/or microscopic spores at the Project unless caused by the sole negligence or willful misconduct of Seller. (xiv) Commercial Unit A to be Operated as Shared Automobile Dealerships. Commercial Unit A located on the Ground Floor, Ground Floor 1A, and the Second Floor of the Platform, initially will be owned by JN Group, Inc., or its nominee and initially may be operated as several shared automobile dealerships, including, without limitation automobile servicing and repair facilities. (xv) Cooling Tower on Rooftop. The design of the Building provides for cooling towers to be located on the rooftop and the existence of the same may cause noise and vibrations even in the course of normal operation which may be evident to the units on the floors immediately below the rooftop, including those located on the 45 th Floor of the Building. (xvi) Cooling Tower for Commercial Unit. The design of the Building also provides for a cooling tower servicing the Commercial Unit to be located within the area designated as Mechanical on the Second Floor Parking Level, as shown on sheet CPR-4 of the Condominium Map, and the existence of the same may cause noise and vibrations even in the course of normal operation which may be evident within the various parking levels within the Project. (xvii) Elevators. The design of the Building provides for four (4) passenger elevators to provide access to the residential floors in the Project. The units located in the immediate vicinity of the elevator lobby on each level of the Building may be prone to greater noise and other nuisances associated with the normal operation of the elevators than units located further away from the elevator lobby. Also the during certain hours of the day there may be delays in the elevator servicing each residential floor as a result of high traffic loads and/or in the event of servicing and/or repairs to one or more of the elevators in the Project. (xviii) Location of Units Immediately Above Certain Recreational Facilities. Certain of the residential units located on the eighth Floor of the Building are located directly above certain Recreational Facilities located on the seventh Floor of the Building, including without limitation, the swimming pool, pool deck, the private cabana areas, a spa, and a dog park which may expose these residential units to greater noise and other nuisances than the residential units located on higher floors in the Project. (xix) Shared Access Drive Shared with Mercedes Dealership Facility. As part of the development of the Project a ground level entrance/exit driveway will be constructed off of Kapiolani Boulevard on the ewa side of the Project which entrance/exit driveway is shared and used by the (a) the customers, guests, and business invitees of the Mercedes Dealership Facility on the adjacent Jones Hawaii Property, (b) the customers, guests, and business invitees of the Commercial Unit, and (c) the owners and residents of Residential Units in the Project. Furthermore service providers to the Mercedes Dealership Facility and the Commercial Unit may also access their respective loading areas by way of this Shared Access Drive off of Kapiolani Boulevard. The shared annual maintenance and repair expenses chargeable to the Project shall be funded by the Association as a part of the monthly assessments for common expenses against the Residential Unit Owners made under the Declaration and Bylaws. (xx) Project in a Flood Zone. The Project is located in a Flood Zone (Zone X) per the City and County of Honolulu) and as such federal flood insurance may be required for the Project and/or the individual Units. Location in a flood zone exposes the Project to a greater risk of flood damage than if the Project were located outside of a designated flood zone. (xxi) Individual Water Heaters in Units. The Project has been designed with an individual water heater in each of the Residential Units which will supply hot water to the individual Units. There will be no central water heating system in the Project serving the Residential Units. The individual water heaters within each Residential Unit are electric and the cost of heating the water in each of the individual water heaters in the Project