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HomeMy WebLinkAboutCOM 0917.003 1998-2000 Stephen K. Yamashiro _ Richard Wurdentan ` Mayor Corporate n Counsel (fauntV Ql'PaivaTt OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hilo, Hawaii 967204262 ' (808) 961.8251 ' Fax (808) 961-8622 September 27, 2000 TO Councilman J. Curtis Tyler, III FROM: Gerald Takase, a : r Deputy Corporation Counsel RE Dedication--Kaloko Business Park. Phase II Resolution 321-00 COPIES/ITEMS DATE DESCRIPTION Copy 03/04/91 Master Declaration of Restrictive Covenants, recorded as Document No. 91-041779. Copy 07/30/93 Amendment to Master Declaration of Restrictive Covenants, recorded as Document No. 93-128138. Copy 08/06/93 Declaration of Restrictive Covenants, recorded as Document No. 93-128141. Copy 08/06/93 Indemnity Agreement between TSA International, Limited and Costco Wholesale Corporation, recorded as Document No. 93-128148. TRANSMITTED FOR: [ ] Information and Files [ ] Approval [ ] Signature and Return [ ] Review and Comments [ ] Signature and Forwarding As Noted Below [x] See Remarks Below [x] Pursuant to Your Request [ ] Filing and Return (Envelope Enclosed) REMARKS: We also requested copy of the Declaration of Restrictive Covenants Kaloko Light Industrial Park Unit II, dated 10/27/99, recorded as Document No. 99-191917. As soon as we receive this, we will forward it to you. /de Comm. No..JL ,003 Encs. File No.- Ref. Tot~C6ANC / Ref. nAt-A 'SEP 2 8 2000 91-041'779 2 26 ' Return by Mail ( ) Pickup ( To: CARISMITH BALL WICHMAN MURRAY CASE MUKAI b ICH110 1001 Bishop Street • Podk Tower, Suite 7200 Honolulu, Hawaii 96813 KK In accordance with the provisions of Section 502-31, Hawaii r Revised Statutes, as amended, this page is attached to that certain instrument entitled, "Master Declaration of Restrictive Covenants," dated`Mat oill{t 1991, by TSA INTERNATIONAL, LIMITED, a Hawaii corporation, "Declarant". %9029099 MASTER DECLARATION OF RESTRICTIVE COVENANTS TABLE OF CONTENTS Paqe 1 ARTICLE I . . . . . . . . . . 1 Definitions . . . . . . . . . . 1 Section 1. "Area of Common Responsibility*"' 1 Section 2. "Association" . . . . . . . . . . . . 1 Section 3. "Common Area" . . . . . . . . . . . 2 Section 4. "Common Expenses" . . . . . . . . . 2 Section 5. "Declarant" . . . . . . . . . . . . 2 Section 6. "General Assessment" . . . . . . . . 2 Section 7. "Local Association" . . . . . . . . 2 Section B. "Long-term Lease" . . . . . . . . . 2 Section 9. "Lot" . . . . . . . . . . . . 2 Section 10. "Lot Unit" . . . . . . . . . . . . . 2 Section 11. "Member" . . . . . . . . . . . . . . 3 Section 12. "Mortgage" . . . . . . . . . . . . . 3 Section 13. "Mortgagee" . . . . . . . . . . . 3 Section 14. "Mortgagor" . . . . . . . . . . . . 3 Section 15. "Owner" . . . . . . . . . . . . . . 3 Section 16. "Person" . . . . . . . . . . . . . . 3 Section 17. "Property" . . . . . . . . . . . 3 Section 18. "Special Assessment" . . . . . . . . 3 Section 19. "Subsequent Amendment" . . . . . . . 3 Section 20. "Voting Unit" . . . . . . . . . . . 3 ARTICLE II . . . . . . . . . . . . . . . . . . 4 Association, Membership, Voting Rights and Property Rights . . . . . . . . . . . . . . 4 Section 1. Formation of the Association. . . . 4 Section 2. Dues and Assessments. . . . . . . . 4 Section 3. Community Association Membership. 4 Section 4. Voting Rights. . . . . . . . . . . . 5 Section 5. Property Rights . . . . . . . . . . 5 ARTICLE III . . . . . . . . . . . . . . . . . . 5 Maintenance, Insurance and Indemnification . . . . 5 Section 1. Association's Responsibility. . . . 5 Section 2. Owner's Responsibility. . . . . . . 5 Section 3. Insurance . . . . . . . . . . . . . 6 Section 4. Indemnification . . . . . . . . . . 7 ARTICLE IV . . . . . . . . . . . . . . . . . . . . . 8 Subsequent Amendment and Acquisition of Additional Common Area . . . . . . . . . 8 Section 1. Subsequent Amendment. . . . . . . 8 Section 2. Acquisition of Additional Common Area . . . . . . . . . . . . . . . . 8 %9029099 Section 3. Amendment . . . . . . . . . . . . . . 8 ARTICLE V . . . . . . . . . . . . . . . . . . . . . 8 Rights and Obligations of the Association . . . . . . 8 Section 1. Area of Common Responsibility . . . . 8 Section 2. Personal Property and Real Property for Common Use , . . , , . . 8 t Section 3. Rules and Regulations. . . . . . . , 9 Section 4. Implied Rights. . . . . . . . . . . 9 ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . 9 Assessments . . . . . . . . . . . . . . . . . . . 9 Section 1. Creation of Assessments. . . . . . , 9 Section 2. Com utaCion of Assessment . . . . . 11 Section 3. Special Assessments. . . . . . . . , 11 Section 4. Lien for Assessments. . . . . . . , 12 Section 5. Date of Commencement of Annual Assessments . , , , , , 12 Section 6. Subordination of the Lento First Deeds of Trust and First Mortgages. 12 Section 7. Exempt Property . . . . . . . . . . 13 Section B. Failure to Assess. . . . . . . . . 13 ARTICLE VII . . . . . . . . . . . . . . . . . . . . 13 Local Associations . . . . . . . . . . . . . . . . . 13 ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . 14 Drainage Improvements . . . . . . . . . . . . . . . . 14 ARTICLE IX . . . . . . . . . . . . . . . . . . . 15 General Provisions . . . . . . . . . . , . . . . . 15 Section 1. Term . . . . . . . . . . . . . . . . 15 Section 2. Amendment . . . . . . . . . . . . . . 15 Section 3. Indemnification. . . , . . . . . 16 Section 4. Easements for Utilities, Etc. . . . 16 Section 5. Reservation for Expansion. . . . . . 17 Section 6. Severability. . . . . . . . . . . . 17 Section 7. Right of Entry. . . . . . . . . . . 17 Section B. Perpetuities. . . . . . . . . 17 Section 9. Cumulative Effect; Conflict. . . . . 17 ARTICLE X . . . . . . . . . . . . . . . . . . . . . . 18 Declarants Rights . . . . . . . . . . . . . . . . . 18 %9029099 11 . MASTER DECLARATION OF RESTRICTIVE COVENANTS This Declaration of Restrictive Covenants is made this day of Mar-oh 1991, by TSA INTERNATIONAL, LIMITED, a Hawaii corporation (hereinafter referred to as "Declarant"); Declarant is the owner of certain real property located at Kaloko, North Kona, County and Island of Hawaii and more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. Declarant intends by this Declaration to impose upon the Property (as defined herein) mutually beneficial restrictions under a general plan of improvement for the benefit of all owners of real property within the Property made subject to this Declaration and amendments thereto by the recording of this Declaration. Declarant desires to provide a flexible and reasonable procedure for the overall development of the Property and to establish a method for the administration, maintenance, preservation, use, regulation, and enjoyment of the Property. Declarant hereby declares that all of the Property described in Exhibit "A" and any additional property as may by Subsequent Amendment (as defined herein) be added to and subjected to this Declaration shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions. All such provisions are•for the purpose of protecting the value and desirability of and shall run with the real property subject to this Declaration. This Declaration shall be binding on all parties having any right, title, or interest in the Property or any part thereof, their heirs, successors, successors-in-title, and assigns, and shall inure to the benefit of each owner thereof. ARTICLE I Definitions Section 1. "Area of Common Responsibility" shall mean and refer to the Common Area, together with those areas which the Association is responsible for maintaining and insuring hereunder and those areas, if any, which by contract with any third party or the County of Hawaii becomes the responsibility of the Association. The Area of Common Responsibility as described in this Declaration may not be reduced by amendment hereto or by any other means except with the prior written approval of Declarant. Section 2. "Association" shall mean and refer to the Kaloko Community Association, a Hawaii non-profit corporation, X9029099 and its successors and assigns. The "Board of Directors" or "Board" shall be the elected body of the Association. Section 3. "Common Area" shall mean all real property which the Association now or hereafter owns or otherwise holds for the common benefit of the Owners, including, without limitation, the real property described in Exhibit "B" attached hereto and incorporated herein by reference. Section 4. "Common Expenses" shall mean and include the actual and estimated expenses of operating the Association, including a reasonable reserve. Section 5. "Declarant" shall refer to TSA International, Limited ("TSA"), a Hawaii corporation, its successors and assigns, and such person to whom TSA may assign its rights as "Declarant" in an instrument executed by TSA and recorded in the Bureau of Conveyances of the State of Hawaii. (For purposes of this definition of "Declarant," TSA's "suc- cessors and assigns" shall not include any person to whom TSA conveys or leases a Lot, unless the rights of Declarant have been expressly assigned to such person and an instrument executed by TSA has been recorded in the Bureau of Conveyances to evidence such assignment.) Section 6. "General Assessment" shall mean and refer to assessments levied to fund expenses applicable to all Members of the Association. Section 7. "Local Association" shall mean and refer to other community associations which may be established, at the option and sole discretion of Declarant, its successors and assign, or an owner of Lot 7A, 7B, 7C or 7D as created by Subdivision Number 5482 of the County of Hawaii, for the purpose of facilitating the development of such property or any portion thereof. Section 8. "Long-term Lease" shall mean a recorded lease for a term of thirty (30) years or more. Section 9. "Lot" shall mean each lot in the Property created pursuant to final subdivision (or resubdivision) approval of the County of Hawaii under the Hawaii County Code, except the Roadway Lot created by Subdivision Number 5482 of the County of Hawaii. Section 10. "Lot Unit" shall mean every 10,000 square feet (or fraction thereof) of land area comprising a Lot. X9029099 2 . Section 11. "Member" shall mean and refer to a person or entity entitled to membership in the Association, as provided herein. i Section 12. "Mortgage" shall mean and refer to any interest in property given as security for repayment of a loan. Section 13. "Mortgagee" shall mean and refer to a beneficiary or holder of a mortgage. Section 14. "Mortgagor" shall mean and refer to the obligee under a mortgage. Section 15. "Owner" shall mean and refer to one or more persons or entities who hold the record title to any one of the Lots which comprise the Property but excluding in all cases any party holding an interest merely as security for the performance of an obligation. If any one of the Lots is sold under a recorded agreement of sale, or is leased under a Long- term Lease, the purchaser or lessee, respectively, (rather than the fee owner) will be considered the Owner. Section 16. "Person" means a natural person, a corporation, a partnership, trustee, or other legal entity. Section 17. "Property" shall mean and refer to all of the land and improvements described in Exhibit "A" attached hereto. "Property" shall also refer to the property described in Exhibit "B," such additional land and improvements as may hereafter be annexed by Subsequent Amendment to this Declaration, or property which is owned by the Association. Section 18. "Special Assessment" shall mean and refer to assessments levied in accordance with Article VI, Section 3 of this Declaration. Section 19. "Subsequent Amendment" shall mean an amendment to this Declaration which adds additional property to that covered by this Declaration. Such Subsequent Amendment may, but is not required to, impose, expressly or by reference, additional restrictions and obligations on the land submitted by that Amendment to the provisions of this Declaration. Section 20. "Voting Unit" shall mean and refer to the votes held and exercised by the owner of a Lot. %9029099 3. ARTICLE II Association, Membership, Voting Rights and Property Rights Section 1. Formation of the Association. The Owners of the Property agree to the formation of the Association, a non-profit corporation, which shall have the rights to enforce the provisions of this Declaration, and shall have such other rights as herein provided and such rights as provided in said Association's Articles of Incorporation and By-Laws. Section 2. Dues and Assessments. All costs and expenses of the Association shall be paid by its Members according to the provisions of Article VI of this Declaration and its Articles or By-Laws, as they may from time to time be amended, from dues and assessments of such members. Section 3. Community Association Membership. Except as otherwise provided hereinbelow, membership in the Association shall consist of and be limited.to the owners of the Lots, provided, that parties who subsequent to the recordation of this Declaration become Owners of any of the Lots will be required to accept membership in the Association. Any owner who is required to submit his Lot to coverage by this Declaration shall become a Member of the Association and shall remain a Member thereof until such time as his or her ownership of such property ceases for any reason, at which time, his or her membership in the Association shall automatically cease and be assumed by the succeeding Owner. The Association shall have two classes of Members: (a) Class A Members shall consist of all owners other than Declarant (except that Class A Members shall include Declarant upon the conversion of Declarant's Class B membership into Class A membership). (b) Class B Members shall consist exclusively of Declarant, so long as Declarant qualifies as an Owner of a Lot. Unless Class A Members and Class B Members are referred to expressly, the term "Owners" or "Members" in the Declaration shall refer to both Class A and Class B Members. Declarant's Class B membership shall be converted into Class A membership upon the date that Declarant no longer holds twenty- five percent (25%) or more of the total votes of all Members of the Association, or upon such earlier date as Declarant may specify in a written notice to the Association. X9029099 4. Section 4. Voting Rights. Each Class A Member shall have one (1) Voting Unit per Lot Unit and shall be entitled to vote on all matters as specified in this Declaration and the Association's Articles and Bylaws. Each Class B Member shall have one Voting Unit per Lot Unit and shall be entitled to vote on all matters as specified in this Declaration and the Association's Articles and Bylaws and shall also have the right to approve of or consent to certain actions taken under this Declaration and the Association's Articles and Bylaws. For example, a Member who owns a 25,000 square foot lot shall be entitled to two and one-half (2.5) voting Units. Whenever this Declaration refers to a stated percentage of the total votes of all Owners or Members, such percentage shall refer to the percentage of the total Voting Units of all members of the Association whose voting rights are not suspended at the time the vote is being conducted. The number of Voting Units held by each Owner shall be subject to annual adjustment by the Board of Directors and the Board shall establish an annual cut- off date for computing votes and notifying Owners of their total vote. Section 5. Property Rights. Every Owner shall have a right and easement of use and enjoyment in and to the Common 1 Area only for the purposes for which it is intended subject to this Declaration and to any restrictions or limitations contained in any deed or amendment to this Declaration conveying to the Association or subjecting to this Declaration such property. Any Owner may delegate his or her right of enjoyment to the members of his or her family, business and social invitees subject to reasonable regulation by the Board and in accordance with procedures it may adopt. ARTICLE III Maintenance, Insurance and Indemnification Section 1. Association's Responsibility. The Association shall maintain and keep in good repair the Area of Common Responsibility, such maintenance to be funded as herein- after provided. This maintenance shall include, but not be limited to, maintenance, repair and replacement, subject to any insurance then in effect, of all landscaping and other flora, structures and improvements situated upon the Area of Common Responsibility. The Area of Common Responsibility, and the Association's obligation to maintain and repair the Area of Common Responsibility, shall not be reduced by amendment of this Declaration or any other means except with the express written consent of Declarant. Section 2. Owner's Responsibility. In accordance with this Declaration and any additional declaration and any X9029099 5 . Subsequent Amendments to this Declaration which may be filed on portions of the Property, the performance and cost of all maintenance of all property located within the Property but outside of the Area of Common Responsibility shall be the sole responsibility of the Owner of such property or the Local 7 Association established pursuant to the provisions herein. If this maintenance work is not properly performed by the Owner or the Local Association, the Association may, but shall not be required to, perform it and assess the Owner or Local Association pursuant to Article VI hereof; provided, however, except when entry is required due to an emergency situation, the Association shall afford the Owner or the Local Association reasonable notice and an opportunity to cure the problem prior to entry. Section 3. Insurance. The Association's Board of Directors shall have the authority to and shall obtain blanket all-risk insurance, if reasonably available, for all insurable improvements on the Area of Common Responsibility. The Association shall have the authority to and interest in insuring any privately or publicly owned property for which the Association has a maintenance or repair responsibility. If blanket all-risk coverage is not reasonably available, then at a minimum an insurance policy providing fire and extended coverage shall be obtained. This insurance shall be in an amount sufficient to cover one hundred (100%) percent of the replacement cost of any repair or reconstruction in the event of damage or destruction from any insured hazard. The Board shall also obtain a public liability policy covering the Area of Common Responsibility, any public property for which the Association has maintenance responsibility, the Association and its members for all damage or injury caused by the negligence of the Association or any of its Members or agents. The public liability policy shall have at least One Million ($1,000,000.00) Dollar single person limit as respects bodily injury and death, a Ten Million ($10,000,000.00) Dollar limit per occurrence, if reasonably available, and a Five Hundred Thousand ($500,000.00) Dollar minimum property damage limit. Should additional coverages and higher limits become available which a reasonably prudent person would obtain, the Board of Directors shall obtain such coverages or limits if reasonably available. Premiums for all insurance on the Area of Common Responsibility shall be common expenses of the Association. The policy may contain a reasonable deductible, and the amount thereof shall be added to the face amount of the policy in determining whether the insurance at least equals the full %9029099 6 . replacement cost. The deductible shall be paid by the party who would be responsible for the repair in the absence of insurance and in the event of multiple parties shall be allocated in relation to the amount each party's loss bears to the total loss. y Cost of insurance coverage obtained by the Association for the Area of Common Responsibility shall be included in the General Assessment, as defined in Article I, Section 6, and as more particularly described in Article VI, Section 1. In addition to the other insurance required by law or by this Section, the Board shall obtain, as a Common Expense, worker's compensation insurance, if and to the extent necessary, and a fidelity bond or bonds on directors, officers, employees, and other persons handling or responsible for the Association's funds, if reasonably available, and such other insurance as the Board determines to be necessary or desirable. The amount of fidelity coverage, if available, shall be determined in the directors' best business judgment but may not be less than three (3) months' assessments plus reserves on hand. Bonds shall contain a waiver of all defenses based upon the exclusion of persons serving without compensation and may not be cancelled or substantially modified without at least thirty (30) days' prior written notice to the Association. Section 4. Indemnification. -Each Owner shall indemnify the Declarant and the Association from any and all claims and demands, including claims for property damage, personal injury, or wrongful death having to do with the (a) use or occupancy of the Owners' portion of the Properties, (b) any accident or fire thereon, (c) any nuisance thereon, (d) any failure of the Owner to maintain the Owner's portion of the Properties in a safe condition or otherwise as required herein, or (e) any failure by Owner to observe and comply with all laws, ordinances, rules and regulations now in effect or hereafter made by any governmental authority during such time as they are in effect. This indemnity shall include all costs and expenses, including reasonable attorney's fees, which would be paid or incurred by the Declarant and the Association in connection with any such claims, including, but not limited to, all costs of defense, research regarding settlement, or other preventive measures which the Declarant and the Association may take prior to the filing of such action or to attempt to prevent the filing of such action. The Association may, in appropriate cases, assume the responsibility of this indemnification. X9029099 7 . ARTICLE IV Subsequent Amendment and Acquisition of Additional Common Area Section 1. Subsequent Amendment. Additional i property may be added to the Property covered by the Declaration by Subsequent Amendment upon the approval of both (a) the Class B Members, and (b) seventy-five percent (75%) of the total votes of all members of the Association; provided, however, that the approval of the Class B Members shall not be required when the Class B membership has been converted into Class A membership in accordance with the provisions of this Declaration and the Association's Articles. Section 2. Acquisition of Additional Common Area. Declarant may convey to the Association, or the Board of Directors of the Association may acquire, additional real estate, improved or unimproved, or any interest in real estate, which real estate may be added to the Area of Common Responsibility. Upon conveyance or dedication to the Association, the Association shall accept and thereafter shall maintain such real estate at its expense for the benefit of all its Members. Section 3. Amendment. This Article shall not be amended without the written consent of Declarant, so long as the Declarant owns any property described in Exhibit "A." ARTICLE V Rights and Obligations of the Association Section 1. Area of Common Responsibility. The Association, subject to the rights of the owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Area of Common Responsibility and all improvements thereon (including, without limitation, fur- nishings and equipment related thereto and common landscaped areas), and shall keep such Area in good, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions hereof. Section 2. Personal Property and Real Property for Common Use. The Association, through action of its Board of Directors, may acquire, hold, and dispose of tangible and intangible personal property and real property. The Board, acting on behalf of the Association, will accept any real or personal property, leasehold, or other property interests within the Property which the Declarant may convey to it. X9029099 8 . Section 3. Rules and Regulations. The Association, through its Board of Directors, may make and enforce reasonable rules and regulations governing the use of the Property which rules and regulations shall be consistent with the rights and duties established by this Declaration and shall have full and i complete power to enforce this Declaration. Sanctions may include reasonable monetary fines and suspension of the right to vote and the right to use the Common Area. The Board shall, in addition, have the power to seek relief in any court for violations or to abate nuisances. Imposition of sanctions shall be as provided in said rules and regulations and the By- Laws of the Association. Section 4. Implied Rights. The Association may exercise any other right or privilege given to it expressly by this Declaration, the Articles or the By-Laws, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effectuate any such right or privilege. ARTICLE VI Assessments Section 1. Creation of Assessments. There are hereby created assessments for Common Expenses as may be from time to time specifically authorized by the Board of Directors to be commenced at the time and in the manner set forth in this Article VI, Section 5. The amount of each Owner's assessments (General and Special Assessments) shall'be equal to the total amount of the assessments to be collected from all Owners, multiplied by each Owner's Proportional Share. An Owner's "Proportionate Share" shall be equal to the following fraction: (a) The numerator shall be equal to the total Voting Units assigned to the Owner pursuant to Article II, Section 4. (b) The denominator shall be equal to the total voting Units assigned to all Owners pursuant to Article II, Section 4. The Board of Directors shall determine each Owner's Proportionate Share and notify Owners of the same at least thirty days prior to the commencement of each fiscal year. Anything herein to the contrary notwithstanding, Declarant may annually elect in writing to the Association at least sixty (60) days prior to the end of the fiscal year either of the following alternatives as a method of paying its assessments during the upcoming year: %9029099 9 . (a) pay its share of the assessments as computed pursuant to this Section, or (b) pay to the Association in the form of a subsidy i the difference between the amount received in assessments from all owners other than Declarant and the amount of the actual expenditures required to operate the Association for the year. In the absence of any written election by Declarant, Declarant shall pay assessments on the basis set forth in subparagraph (b) above. Payment under either of the foregoing options shall constitute full payment of all assessments owed under this Declaration. The method of calculating the Owner's Proportionate Share as set forth above shall not be amended unless the express written approval of the Class B Member is obtained. Assessments may be levied by any Local Association established pursuant to the provisions of this Declaration against Owners of Lots and for whose benefit expenses are incurred which benefit less than the Association as a whole. Assessments levied by any Local Association shall be allocated to the Owners as provided in the declaration establishing the Local Association. Each Owner, by acceptance of,.its, his or her deed or recorded contract of sale, is deemed to covenant and agree to pay these assessments. All such assessments, together with interest at the rate equal to two (2) percentage points above the prime interest rate charged by the First Hawaiian Bank (but not to exceed the highest rate allowed by law) as computed for the date the delinquency first occurs, costs, and reasonable attorneys' fees, shall be a charge on the land and shall be a continuing lien upon the Lot against which each assessment is made. Each such assessment, together with interest, costs, late charges in the amount of Ten ($10.00) Dollars or ten percent (108) of the amount past due, whichever is greater, and reasonable attorneys' fees, shall also be the personal obligation of the person who was the Owner of such Lot at the time the assessment arose, and his or her grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance to the extent expressly assumed, except no first mortgagee who obtains title to a Lot pursuant to the remedies provided in the mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title. %9029099 10. Section 2. Computation of Assessment. It shall be the duty of the Board, at least sixty (60) days before the beginning of the fiscal year and thirty (30) days prior to the meeting at which the budget shall be presented to the Members, t to prepare a budget covering the estimated costs of operating the Association during the coming year. The budget may include a capital contribution establishing a reserve fund. The Board shall cause a copy of the budget, and the amount of the assessments to be levied against each Lot for the following year to be delivered to the Owner of the Lot at least fifteen (15) days prior to the meeting. The budget and the assessments shall become effective unless disapproved at the meeting by a vote of Members or their alternates representing at least a majority of the total Class "A" vote in the Association, and the Class "B" Member. Notwithstanding the foregoing, however, in the event the proposed budget is disapproved or the Board fails for any reason so to determine the budget for the succeeding year, then and until such time as a budget shall have been determined as provided herein, the budget in effect for the then current year shall continue for the succeeding year. Section 3. Special Assessments. In addition to the assessments authorized in Section 1 of this Article, the Association may levy a Special Assessment or Special Assessments in any year applicable to the year the assessment is imposed; provided, however, such assessment shall have the vote or written consent of Members or their alternates representing fifty-one percent (51%) of the Class "A" vote in the Association and of the Class "B" Member, if such exists. Provided, further, after the conversion of the Class "B" membership, any such assessment shall have the vote or written consent of Members or their alternates representing fifty-one percent (51%) of the total votes of the Association. The Association may also levy a Special Assessment against any Member to reimburse the Association for costs incurred in bringing a Member and his Lot into compliance with the provisions of the Declaration, any amendments thereto, the Articles, the By-Laws, and the Association Rules and Regula- tions, which Special Assessment may be levied upon the vote of the Board after written notice to the Member specifying the nature of the Member's noncompliance and giving the Member a reasonable period of time, not less than ten (10) days, in which to comply. If the Member fails to comply within the time period provided, the Board shall serve written notice of the amount of the proposed Special Assessment and the right to a X9029099 1 1 hearing upon request. The decision of the Board after the hearing, if requested, shall be final. Section 4. Lien for Assessments. Upon filing of a notice of lien with the Bureau of Conveyances of the State of 1 Hawaii, there shall exist a perfected lien for unpaid assess- ments on the respective Lot prior and superior to all other liens, except (1) all taxes, bonds, assessments, and other levies which by law would be superior thereto, and (2) the lien or charge of any first mortgage of record (meaning any recorded mortgage with first priority over other mortgages) held by a mortgagee made in good faith and for value. Such lien, when delinquent, may be enforced by suit, judgment, and foreclosure. The Association, acting on behalf of the Owners, shall have the power to bid for the Lot at foreclosure sale and to acquire and hold, lease, mortgage, and convey the same. During the period in which a Lot is owned by the Association following foreclosure: (a) no right to vote shall be exercised on its behalf; (b) no assessment shall be assessed or levied on it; and (c) each other Lot shall be charged, in addition to its usual assessment, its equal pro rata share of the assessment that would have been charged such Lot had it not been acquired by the Association as a result of foreclosure. Suit to recover a money judgment for unpaid common expenses and attorneys' fees shall be maintainable without foreclosing or waiving the lien securing the same. After notice and hearing, the Board may temporarily suspend the vote attributable to the Lot of any Member who is in default in payment of any assessment. Section 5. Date of Commencement of Annual Assessments. The annual assessments provided for herein shall commence as to each Lot as determined by the Board of Directors. The first annual assessment shall be adjusted according to the number of months then remaining in that fiscal year. Section 6. Subordination of the Lien to First Deeds of Trust and First Mortgages. The lien of assessments, including interest, late charges (subject to the limitations of Hawaii law), and costs (including attorney's fees) provided for herein, shall be subordinate to the lien of any first Mortgage upon any Lot. The sale or transfer of any Lot shall not affect the assessment lien. However, the sale or transfer of any Lot pursuant to judicial or nonjudicial foreclosure of a first Mortgage shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer, including transfer to a receiver or trustee X9029099 12 . in bankruptcy, shall relieve such Lot from lien rights for any assessments thereafter becoming due. Where the Mortgagee of a first Mortgage of record obtains title, neither it nor its successors and assigns shall r be liable for the share of the common expenses or assessments by the Association chargeable to such Lot which became due prior to the acquisition of title to such Lot by such acquirer. Such unpaid share of common expenses or assessments shall be deemed to be common expenses collectible from all of the Lots, including such acquirer, his successors and assigns. Section 7. Exempt Property. Notwithstanding anything to the contrary herein, the following property shall be exempt from payment of General Assessments and Special Assessments: (a) all Common Area; and (b) all property dedicated to and accepted by any governmental authority or public utility, including, without limitation, public schools, public streets, and public parks. Section 8. Failure to Assess. The omission or failure of the Board to fix the assessment amounts or rates or to deliver or mail to each Owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay assessments. .In such event, each Owner shall continue to pay annual assessments on the same basis as for the last year for which an assessment was made until a new assessment is made, at which time any shortfalls in collections may be assessed retroactively by the Association. ARTICLE VII Local Associations Declarant, its successors and assigns, or an Owner of Lots 7A, 7B, 7C or 7D as created by Subdivision Number 5482 of the County of Hawaii shall have the right to establish a Local Association to provide for a flexible and reasonable procedure for the overall development of such property and to provide for a method for the administration, maintenance, preservation, use, regulation, and enjoyment of such property. The Local Association may be established by the execution of a declaration of restrictive covenants by such Owner and the recording of such declaration in the Bureau of Conveyances of the State of Hawaii. Such declaration may provide for the following matters: (1) organization and administration of the Local Association; (2) authority of the x9029099 13. Local Association to levy general and special assessments on its members; (3) establishment and administration of archi- tectural standards and use restrictions; and (4) any other matter which may be required for the overall development of such property, provided that the provisions of such declaration i or any other governing instruments of the Local Association shall not be inconsistent with this Declaration and the Articles and By-Laws of the Association. The declaration and governing instruments for any Local Association established pursuant hereto shall be approved by a vote or written consent of Members or their alternates representing fifty-one percent (518) of the Class "A" vote in the Association and the Class "B" Member, if such exists. Provided, further, after the conversion of Class "B" membership, any such approval shall have the vote or written consent of Members or their alternates representing fifty-one percent (518) of the total votes of the Association. ARTICLE VIII Drainage Improvements Ordinance No. 86-92 of the County of Hawaii requires as a condition of rezoning of certain portions of the Property, the installation of a drainage system in accordance with the requirements of the County of Hawaii. In connection with obtaining its final subdivision approval for the Property, the County of Hawaii advised Declarant that it may require the establishment of a drainage easement and construction of drainage improvements on said easement by the Owner or Owners of the Property. Said proposed drainage easement is depicted on the final subdivision map approved by the Planning Director of the County of Hawaii on December 16, 1986, as Subdivision Number 5482. The ownership of the Property is hereby made subject to the proposed drainage easement and the proposed construction of drainage improvements and the expenses associated therewith. If the County of Hawaii determines that a drainage easement and/or drainage improvements are not required, the Declarant may, but shall not be required to, record in the Bureau of Conveyances a declaration executed by the Declarant or appropriate officials of the County of Hawaii stating that (i) said drainage easement and/or drainage improvements are not required, (ii) the restrictive covenants established by this Article VIII are terminated, and (iii) Declarant, its successors or assigns, are released from all obligations under this Article VIII. If a drainage easement is granted and/or the drainage improvements are constructed, the Declarant may, but shall not X9029099 14. be required to, record in the Bureau of Conveyances a declara- tion executed by appropriate officials of the County of Hawaii stating that, (i) said drainage easement has been provided and/or said drainage improvements have been constructed, (ii) the requirements imposed upon Declarant, its successors or t assigns by this Article VIII have been satisfied, (iii) the restrictive covenants established by this Article VIII are terminated, and (iv) Declarant, and its successors or assigns are released from all obligations under this Article VIII. In the event that the drainage easement and/or drainage improvements are required by the County of Hawaii but are not accepted for dedication by the County of Hawaii, the Declarant may convey and the Association shall accept said drainage easement and/or drainage improvements as part of the Common Area and Area of Common Responsibility. ARTICLE IX General Provisions Section 1. Term. The covenants and restrictions of this Declaration shall run with and bind the Property, and shall inure to the benefit of and shall be enforceable by the Association or the Owner of any Property subject to this Declaration, their respective legal representatives, heirs, successors, and assigns, for a term of thirty (30) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years, unless an instrument in writing, signed by a majority of the then owners, has been recorded within the year preceding the beginning of each successive period of ten (10) years, agreeing to change said covenants and restrictions, in whole or in part, or to terminate them. Section 2. Amendment. Prior to the final approval by the County of Hawaii for the further subdivision of any of the Lots created by Subdivision Number 5482 of the County of Hawaii, Declarant may amend this Declaration. After such final subdivision approval by the County of Hawaii, the Declarant may amend this Declaration so long as it still owns property described in Exhibit "A" and so long as the amendment has no material adverse effect upon any right of any Owner; thereafter and otherwise, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Members representing seventy-five percent (75%) of the total votes of the Association, including seventy-five percent (75%) of the vote held by Owners other than the Declarant. However, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken X9029099 15. under that clause. Any amendment must be filed with the Bureau of Conveyances of the State of Hawaii. No amendment may remove, revoke, or modify any right or privilege of Declarant without the written consent of t Declarant or the assignee of such right or privilege. Section 3. Indemnification. The Association shall have the powers and duties of indemnification set forth in H.R.S. § 415B-6, as it may be amended from time to time. Section 4. Easements for Utilities, Etc. Declarant hereby reserves for itself and its designees (which may include without limitation, the County of Hawaii and any utility), blanket easements upon, across, over, and under all of the Common Area, and to the extent shown on any plat-over the Lots, for ingress, egress, installation, replacing, repairing, and maintaining cable television systems, master television antenna systems, security, and similar systems, walkways, altering drainage and water flow and for all utilities, including, but not limited to, water, sewers, meter boxes, telephones, gas, and electricity. This reserved easement may be assigned by Declarant by written instrument to the Association, and the Association shall accept the assignment upon such terms and conditions as are acceptable to Declarant. If this reserved easement is assigned to the Association, the Board shall, upon written request, grant such easements as may be reasonably necessary for the development of any Property described in Exhibit "A" or that may be annexed in accordance with Article IV of this Declaration. Any utility company using this general easement shall use its best efforts to install and maintain the utilities provided for without disturbing the uses of the Owners, the Association, and the Declarant, shall proceed with its installation and maintenance activities as promptly and expeditiously as reasonably possible, and shall restore the surface to its original condition as soon as possible after completion of its work. Without limiting the generality of the foregoing, there are hereby reserved for the Board of Water Supply easements across all Lots on the Property for ingress, egress, installation, reading, replacing, repairing, and maintaining water meter boxes. Notwithstanding anything to the contrary contained in this Section, no sewers, electrical lines, water lines, or other utilities may be installed or relocated on said Property, except as may be approved by the Board of Directors or as provided in the development and sale by Declarant. Should any entity furnishing a service covered by the general easement x9029099 16 . herein provided request a specific easement by separate recordable document, the Declarant or the Board of Directors shall have the right to grant such easement on said Property without conflicting with the terms hereof. The easements provided for in this Article shall in no way adversely affect i any other recorded easement on the Property. Section 5. Reservation for Expansion. Declarant hereby reserves to itself and for Owners in all future phases, a perpetual easement and right-of-way for access over, upon, and across the Property for construction, utilities, drainage, ingress and egress, and for use of the Common Area. The location of these easements and right-of-way must be approved and documented by Declarant or the Association by recorded instrument. Section 6. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 7. Right of Entry. The Association shall have the right, but shall not be obligated, to enter into any portion of the Property for maintenance, emergency, security, and safety, which right may be exercised by the Association's Board of Directors, officers, agents, employees, managers, and all policemen, firemen, ambulance personnel, and similar emergency personnel in the performance of their respective duties. Except in an emergency situation, entry shall only be during reasonable hours and after notice to the Owner or Local Association, as appropriate. This right of entry shall include the right of the Association to cure any condition which may increase the possibility of a fire or other hazard in the event an Owner or Local Association fails or refuses to cure the condition upon request by the Board. Section 8. Perpetuities. If any of the covenants, conditions, restrictions, or other provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty-one (21) years after the death of the last survivor of the now living descendants of Elizabeth II, Queen of England. Section 9. Cumulative Effect; Conflict. The covenants, restrictions, and provisions of this Declaration shall be cumulative with those of any Local Association and the Association may, but shall not be required to, enforce the latter; provided, however, in the event of conflict between or among such covenants, restrictions, and provisions or any X9029099 17 . Articles of Incorporation, By-Laws, rules and regulations, policies, or practices adopted or carried out pursuant thereto, those of any Local Association shall be subject and subordinate to this Declaration. The foregoing priorities shall apply to, but not be limited to, the liens for assessments created in t favor of the Association. ARTICLE X Declarant's Rights Any or all of the special rights and obligations of the Declarant may be transferred to other persons or entities, provided that the transfer shall not reduce an obligation nor enlarge a right beyond that contained herein, and provided further, no such transfer shall be effective unless it is in a written instrument signed by the Declarant and duly filed in the Bureau of Conveyances of the State of Hawaii. Nothing in this Declaration shall be construed to require Declarant or any successor to develop any of the property set forth in Exhibit "A" in any manner whatsoever. If additional uses, such as, by way of explanation and not limitation, light industrial, residential or commer- cial, are subsequently permitted by zoning, Declarant shall have the right to add such uses to this Declaration. So long as Declarant continues to have rights under this paragraph, no person or entity shall record any declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument affecting any portion of the Properties without Declarant's review and written consent thereto, and any attempted recordation without compliance herewith shall result in such declaration of covenants, conditions and restrictions, or declaration of condominium or similar instrument being void and of no force and effect unless subsequently approved by recorded consent signed by the Declarant. This Article may not be amended without the express written consent of the Declarant; provided, however, the rights contained in this Article shall terminate upon the earlier of (a) twenty-five (25) years from the date this Declaration is recorded, or (b) upon recording by Declarant of a written statement that its rights under this Article have terminated. X9029099 18. IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this day of Ynoar k 1991. TSA INTERNATIONAL, LIMITED, i a Hawaii corporation By ` Its By Its %9029099 19. STATE OF HAWAII ) ) ss: CITY AND COUNTY OF HONOLULU ) i On this 41V ~ day of VW 1991, before me appeared `"n bra} and to me personally know-_who bung by me ,CE and duly sworn, did say that they are the VMS !n - , respectively, of TSA INTERNATIONAL, LIMITED, a Hawaii corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors, and the said officers acknowledged said instrument to be the free act and deed of said corporation. 1h~A-1~1' S Uotary Public My commission expires: 3 (ps f~ 89029099 20. EXHIBIT A All of those certain parcels of land situate at Kaloko, North Kona, Island and County of Hawaii, State of Hawaii, being more particularly described as follows: Parcel First: LOT 7-A (portion of Grant 2942 to Hulikoa at Kohanaiki and a portion of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), and thus bounded and described as follows: Beginning at the northwest corner of this parcel of land and on the northeast side of Queen Kaahumanu Highway, the coordinates of said point of beginning referred to Government Survey Triangulation Station "MOANUTAHEA" being 14,286.75 feet South and 25,719.12 feet West and running by true azimuths measured clockwise from True South: 1. 271° 50, 20" 4208.24 feet along the remainder of Grant 2942 to Hulikoa at Kohanaiki; 2. 3430 46, 15" 1760.37 feet along Lot 7-B (remainder of Grant 2942 to Hulikoa at Kohanaiki); 3. 331° 39, 45" 916.35 feet along Lot 7-B (remainder of R.P. 8214,-L. C. Aw. 7715, Apana it to Lota Kamehameha at Kaloko); 4. Thence along Roadway Lot (remainder of R. P. 8214, L.C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), along a curve to the left having a radius of 2540.00 feet, the chord azimuth and distance being: 88° 32, 28.9" 2235.24 feet; 5. 620 26' 13" 1141.51 feet along Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko) and along Road A of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 6. Thence along Queen Kaahumanu Highway, along a curve to the left having a radius of 6096.00 feet, the chord azimuth X9029099 and distance being: 1510 06, 36.1" 352.30 feet; 7. 1490 27' 15" 1838.62 feet along Queen Kaahumanu Highway; i 8. 1490 27, 15" 80.00 feet along Queen Kaahumanu; 9. 1490 27' 15" 1458.49 feet along Queen Kaahumanu Highway to the point of beginning and containing an area of 225.513 acres. Tax Map Key: Hawaii 7-3-9-17 Parcel Second: LOT 7-B (portion of Grant 2942 to Hulikoa at Kohanaiki and a portion of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), and thus bounded and described as follows: Beginning at the northeast corner of this parcel of land and on the south side of Government Land of Ooma 2nd, the coordinates of said point of beginning referred to Government Survey Triangulation Station "MOANUTAHEA" being 13,195.50 feet South and 17,309.28 feet West and running by azimuths measured clockwise from True South: 1. 3440 35, 3523.17 feet along Lot 7-C (remainder of Grant 2942 to Hulikoa and remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha); 2. 3100 51, 35" 80.00 feet along Lot 7-C (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha); 3. 400 51, 35" 1107.57 feet along Lot 7-C (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha); 4. Thence along Lot 7-C (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha) along a curve to the right having a radius of 1840.00 feet, the chord azimuth and distance being: 840 15, 31.5" 2528.44 feet; X9029099 2 . 5. 1270 39' 28" 316.74 feet along Lot 7-C (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha); 6. 2170 39' 28" 80.00 feet along Roadway Lot (remainder 7 of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha); 7. 1270 39' 28" 428.33 feet along Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha); 8. Thence along Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha), along a curve to the left having a radius of 2540.00 feet, the chord azimuth and distance being: 1210 09' 6.4" 575.60 feet; 9. 1510 39' 45" 916.35 feet along Lot 7-A (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha); 10. 1630 46' 15" 1760.37 feet along Lot 7-A (remainder of Grant 2942 to Hulikoa); 11. 2710 50' 20" 3050.65 feet along the remainder of Grant 2942 to Hulikoa; 12. 1490 27' 15" 500.00 feet along the remainder of Grant 2942 to Hulikoa; 13. 2710 50' 20" 195.77 feet along the remainder of Grant 2942 to Hulikoa; 14. 1490 27' 15" 1000.00 feet along the remainder of Grant 1942 to Hulikoa; 15. 2710 50' 20" 1389.74 feet along Government Land of Ooma 2nd; 16. 2550 56' 29" 342.60 feet along Government Land of Ooma 2nd to the point of beginning and containing an area of 367.629 acres. Tax Map Key: Hawaii 7-3-9-25 %9029099 3. Parcel Third: LOT 7-C (portion of Grant 2942 to Hulikoa at Kohanaiki and a portion of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), and thus bounded and described as follows: i Beginning at the northwest corner of this parcel of land, the northeast corner of Lot 7-B (remainder of Grant 2942 to Hulikoa at Kohanaiki) and on the south side of Government Land of Ooma 2nd, the coordinates of said point of beginning referred to Government Survey Triangulation Station "MOANUTAHEA" being 13,195.50 feet South and 17,309.28 feet West and running by azimuths measured clockwise from True South: 1. 2550 56, 29" 2206.52 feet along Government Land of Ooma 2nd; 2. 2520 14, 15" 931.15 feet along Grant 9468 to Mrs. Hattie Kinoulu; 3. 3420 56, 05" 6305.81 feet along the remainder of Grant 2942 to Hulikoa at Kohanaiki and along the remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko; 4. 850 16, 35" 1497.14 feet along R. P. 7587, L. C. Aw. 11216, Apana 36 to Kekauonohi at Kaloko; 5. 800 50, 45" 803.20 feet along R. P. 7587, L. C. Aw. 11216, Apana 36 to Kekauonohi at Kaloko; 6. 800 42, 45" 2036.20 feet along R. P. 7587, L. C. Aw. 11216, Apana 36 to Kekauonohi at Kaloko; 7. 800 46' 14.7" 2558.32 feet along R. P. 7587, L. C. Aw. 11216, Apana 36 to Kekauonohi at Kaloko; 8. 1510 39, 45" 2675.13 feet along Lot 7-D (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko); 9. Thence along Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko) along a curve to the right having a radius of 2460.00 feet, the chord 89029099 4 . azimuth and distance being: 3020 25' 31.2" 448.69 feet; 10. 3070 39' 28" 745.07 feet along Roadway Lot and Lot 7-B (remainder of R. P. 8214, L. t C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko); 11. Thence along Lot 7-B (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), along a curve to the left having a radius of 1840.00 feet, the chord azimuth and distance being: 2640 15' 31.5" 2528.44 feet; 12. 2200 51' 35" 1107.57 feet along Lot 7-B (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko); 13. 1300 51' 35" 80.00 feet along Lot 7-B (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko); 14. 1640 35' 3523.17 feet along Lot 7-B (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko and remainder of Grant 2942 to Hulikoa at Kohanaiki) to the point of beginning and containing an area of 574.906 acres. Tax Map Key: Hawaii 7-3-9-26 Parcel Fourth: LOT 7-D (portion of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), and thus bounded and described as follows: Beginning at the northwest corner of this parcel of land, the northeast corner of Lot 21 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806, and on the south side of Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), the coordinates of said point of beginning referred to Government Survey Triangulation Station "MOANUTAHEA" being 17,071.65 feet South and 22,832.05 feet West and running by azimuths measured clockwise from True South: 1. 2420 26' 13" 54.65 feet along Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, %9029099 5 . Apana 11 to Lota Kamehameha at Kaloko); 2. Thence along Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota i Kamehameha at Kaloko), along a curve to the right having a radius of 2460.00 feet, the chord azimuth and distance being: 269° 48' 53.7" 2262.50 feet; 3. 3310 39, 45" 2675.13 feet along Lot 7-C (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko); 4. 800 46, 14.7" 1189.38 feet along R. P. 7-587, L. C. Aw. 11216, Apana 36 to Keakuonohi at Kaloko; 5. 78° 52, 24.7" 1531.64 feet along R. P. 7587, L. C. Aw. 11216, Apana 36 to Keakuonohi at Kaloko; 6. 1680 52, 24" 408.51 feet along Lot 50 and Road A of Kaloko Light Industrial Sub- division, Unit I, File Plan 1806; 7. 780 52, 24" 132.42 feet along-Road A of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 8. 1680 52, 24" 756.99 feet along Lots 49, 40 and Road A of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 9. 2580 52, 24" 10.82 feet along Lot 39 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 10. 1680 52, 24" 350.02 feet along Lot 39 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 11. 780 52, 24" 83.94 feet along Lot 39 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 12. 750 06, 45.51 feet along Lot 39 of Kaloko Light X9029099 6 . Industrial Subdivision, Unit I, File Plan 1806; 13. 1640 19' 04" 341.55 feet along Lot 31 of Kaloko Light Industrial Subdivision, Unit I, 1 File Plan 1806; 14. 1650 O1' 36" 60.00 feet along Road A of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 15. 1640 19' 42" 348.55 feet along Lot 30 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 16. 2450 49' 18" 76.27 feet along Lot 22 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 17. 2580 52' 24" 31.87 feet along Lot 22 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 18. 1590 59' 24" 320.23 feet along Lot 22 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 19. 690 39' 12" 34.90 feet along. Lot 22 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 20. 1590 19' 346.41 feet along Road A and Lot 21 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806, to the point of beginning and containing an area of 164.563 acres. Tax Map Key: Hawaii 7-3-51-1 (portion) %9029099 7 . ,` • . EXHIBIT B All of that certain parcel of Land situate at Kaloko, North Kona, Island and County of Hawaii, State of Hawaii, being t more particularly described as follows: Lot 57 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806, consisting of approximately 132,452 square feet. (TMK No. 7- 3- 51:58) X9029099 .•F ~ H is.i ~x -2, tea?. BYLAWS OF t KALOKO COMMUNITY ASSOCIATION ARTICLE I DEFINITIONS SECTION 1.1 "Board" or "Board of Directors" shall mean the Board of Directors of the Corporation. - SECTION 1.2 "Articles" shall mean the Articles of Incorporation of the Association, as the same may be from time to time hereafter duly amended. SECTION 1.3 "Conversion Date" shall mean the Conversion Date referred to in Article III, Section 3.1(b) below. SECTION 1.4 "Corporation" shall mean the Kaloko Community Association, a Hawaii non-profit corporation. SECTION 1.5 "Declarant" shall mean TSA International, Limited, a Hawaii corporation ("TSA"), its successors and assigns, and such person to whom TSA may assign its rights as "Declarant" in accordance with the terms of the Declaration. (For purposes of this definition of "Declarant", TSA's "successors and assigns", shall not include any person to whom TSA conveys or leases a "Lot" (as that term is defined in the Declaration), unless the rights of "Declarant" expressly have been assigned to such person.) X9029098 SECTION 1.6 "Declaration" shall mean that certain Master Declaration of Restrictive Covenants dated 3 h+ 9 , i 1990, executed by Declarant and recorded in the Bureau of Conveyances of the State of Hawaii as Document No. , as the same may be from time to time hereafter duly amended. SECTION 1.7 "Member" shall mean "Owner", as the term "Owner" is defined in the Declaration. SECTION 1.8 "Person" shall mean any person, individual or entity (including, without limitation, any trustee, mortgagee, personal representative, corporation (profit or non-profit), partnership (limited or general), association of apartment owners established pursuant to Chapter 514A, Hawaii Revised Statutes, as amended, unincorporated association or trust). SECTION 1.9 "Voting Units" shall mean the Voting Units defined in and established by the Declaration. SECTION 1.10 All other words in these Bylaws with an initial capital letter shall, unless otherwise provided for herein, have the same meaning given them in the Declaration or the Articles. SECTION 1.11 Whenever these Bylaws refer to a stated percentage of the "total votes of all Members of the Corporation", such percentage shall refer to the percentage of the total Voting Units of all Members of the Corporation whose voting rights are not suspended at the time the vote is being 89029098 2 . conducted. Whenever these Bylaws refer to a stated percentage of "votes present at a (or the) meeting", such percentage shall i refer to the percentage of the total Voting Units of all Members of the Corporation whose voting rights are not suspended, and who are present (in person or by proxy) at the meeting of the Members at which such vote is conducted. All references to a vote of the Members shall include Declarant's vote, except as otherwise expressly set forth herein. SECTION 1.12 All references to "President", "Vice President", "Secretary" or "Treasurer" shall refer to, unless otherwise provided, the person elected by the Board of Directors to hold such office of the Corporation. ARTICLE II PRINCIPAL OFFICE; SEAL SECTION 2.1 Principal Office. The principal office of the Corporation shall be maintained at such place within the State of Hawaii, and the Corporation may have such other offices within or without the State of Hawaii, as the Board of Directors shall determine. SECTION 2.2 Place of Meetings. All meetings of the Members and of the Board of Directors shall be held at the principal office of the Corporation, unless some other place is stated in the call. Any meeting, regular or special, of either the Board of Directors or of the Members, may be held by conference telephone or similar communication equipment, so X9029098 3 . long as all Directors or all Members participating in the meeting can hear one another, and all such Directors or Members shall be deemed to be present in person at the meeting. SECTION 2.3 Corporate Seal. The Board of Directors may adopt and use a common corporate seal. ARTICLE III MEMBERS OF THE CORPORATION SECTION 3.1 Qualification; Proof of Status; Certificates. a. Each person who is an "Owner", as defined in the Declaration, shall be a Member of the Corporation, and no person other than such an Owner may be a Member of the Corporation; provided, however, an Owner may assign all or a portion of such owner's membership rights to a vendee under an agreement of sale or lessee under a.Long-term Lease in accordance with the provisions of the Declaration and paragraph (c) below. b. The Corporation shall have two classes of Members: (i) Class A Members shall consist of all Members other than Declarant (except that Class A Members shall include Declarant upon the conversion of Declarant's Class B membership into Class A membership). (ii) Class B Members shall consist exclusively %9029098 4 . of Declarant, so long as Declarant qualifies as an Owner of a Lot. i Unless Class A Members and Class B Members are referred to expressly, the term "Owners" or "Members" in these Bylaws, the Declaration and the Articles shall refer to both Class A and Class B Members. Declarant's Class B membership shall be converted into Class A membership upon the date that Declarant no longer holds twenty-five percent (258) or more of the total votes of all Members of the Corporation, or upon such earlier date as Declarant may specify in a written notice to the Association (the first to occur of such dates being herein called the "Conversion Date"). C. No person shall exercise the rights of membership in the Corporation until satisfactory proof has been furnished to the Secretary that he, she or it is an Owner, or has been assigned an Owner's membership rights under a recorded Long-term Lease or agreement of sale in accordance with the provisions of the Declaration. (The person who has been assigned an Owner's membership rights under a Long-term Lease or agreement of sale is sometimes herein referred to as the "Owner's Assignee".) Such proof must consist of a copy of a duly executed, acknowledged and recorded deed or title insurance policy, showing said person to be the Owner, or a copy of a duly executed, acknowledged and recorded Long-term Lease or agreement of sale showing the Owner's Assignee to be X9029098 5 . the assignee of the Owner's membership rights. Any such deed, policy, lease or agreement of sale shall be deemed conclusive in the absence of a conflicting claim based upon a later deed, i policy, lease or agreement of sale. d. The Board of Directors may provide for the issuance of certificates evidencing membership in the Corporation which shall be in such form as may be determined by the Board. The name and address of each Member and the date of issuance of the certificate shall be entered on the records of the Corporation maintained by the Secretary. If any certificate shall become lost, mutilated or destroyed, a new certificate may be issued therefore upon such terms and conditions as the Board may direct. e. Upon becoming an Owner, or being assigned an Owner's membership rights, each Owner or Owner's Assignee shall promptly furnish to the Secretary an address ("record address") to which the Corporation may mail or deliver any and all notices, demands or documents required or permitted to be mailed or delivered by these Bylaws, the Declaration or the Articles, or by law or otherwise. In the event of the failure of an Owner or Owner's Assignee to furnish such address, the record address of the Owner or Owner's Assignee shall be deemed to be the address of the Lot owned or leased by the Owner or the Owner's Assignee. Until proper proof of an Owner's assignment of such owner's membership rights to a lessee under x9029098 6 . a Long-term Lease or to a vendee under an agreement of sale has been provided to the Secretary in accordance with paragraph (c) i above, all notices, demands or documents required or permitted to be mailed or delivered by these Bylaws, the Declaration or the Articles, or by law or otherwise, may be sent to the Owner at the Owner's record address, and it shall be the owner's responsibility to deliver or communicate such notice, demand or document to the Owner's lessee or vendee. Any notice, demand or document shall be deemed duly and properly given or sent by the Corporation if given or sent to the Owner as aforesaid, notwithstanding the failure of the Owner's lessee or vendee to receive the same. i SECTION 3.2 Voting Rights; Proxies. a. At any meeting of the Members of the Corporation, each Member shall be entitled to cast the number of votes assigned to and permitted to be cast by such Member pursuant to the Declaration. b. Any Member may attend and vote at meetings in person, or by a proxy holder duly appointed by a written proxy signed by the Member and filed with the Secretary. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. Such proxy shall be deemed revoked when the Secretary shall receive actual notice of the death or judicially declared incompetence of such Member, or upon termination of such Member's status as an %9029098 7. Owner. Where two or more persons own a Lot, any one of said persons may exercise, in person or by proxy, the vote allocated i to the Lot on behalf of all owners of the Lot unless the Corporation is notified in writing that the owners of the Lot disagree as to how the vote should be cast, in which event the vote for the Lot shall not be counted unless the owners unanimously agree. C. The voting rights and other rights of membership of any Member may, in accordance with the provisions of the Declaration, be suspended by action of the Board of Directors during the period when the Member shall be in default in the payment of any assessments levied by the Corporation or the observance of any provision of the Declaration. SECTION 3.3 Meetings; Notice;-Quorum. a. An annual meeting of the Members of the Corporation shall be held each year on such date and at such time in the month of March, April or May, or on such other date and at such other time as the Board of Directors may determine, and at the principal office of the Corporation or at such other place as may be designated in the notice of annual meeting, for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting. b. Special meetings of the members of the Corporation may be held at such time and at the principal office of the Corporation or at such other place, and for such X9029098 e . purposes as shall be specified in a call for any such meeting made by resolution of the Board of Directors or by a writing t signed by a majority of the directors, or by a writing signed by a twenty-five percent (25%) of the total votes of all Members of the Corporation. C. Except where and to the extent otherwise required by law, the Articles or the Declaration, notice of each meeting of the Members of the Corporation, specifying the day and time and place of the meeting and the purposes for which the meeting is called, and specifying whether it is an annual or special meeting, shall be given by or under direction of the Secretary to each Member of the Corporation at least twenty (20) but not more than one hundred eighty (180) days before the date fixed for such meeting, by advising such Members of such meeting in any of the following ways: (a) by leaving written notice of such meeting with such Member personally or at such Member's record address or usual place of business, (b) by mailing such notice by first class or registered or certified mail, postage prepaid, to such Member's record address or usual place of business, or (c) by informing such Member of such meeting by telephone, telegraph or in person. In case of the death, absence, incapacity or refusal of the Secretary, such notice may be given by a person designated by the Secretary, President or Board of Directors. If notice is given pursuant to the provisions of these Bylaws, %9029098 9 . non-receipt of actual notice of any meeting by any Member of the Corporation shall in no way invalidate the meeting or any business done at the meeting. Any Member of the Corporation i may waive notice of any meeting either prior to or at or after the meeting, with the same effect as though notice of the meeting had been given to such Member. The presence of any Member of the Corporation at a meeting shall be the equivalent of a waiver by such Member of notice of the meeting. - d. At any meeting of the Members of the Corporation, the presence in person or by proxy of Members having more than 50% of the total votes of all Members of the Corporation shall constitute a quorum, but whether a quorum be present or not, the concurrence of more than 50% of the votes present at the meeting may adjourn such meeting from time to time without having to give notice of such adjournment or the new meeting date to the Owners not present at the adjourned meeting, but may not transact any other business. An adjournment for lack of quorum shall be to a date not less than one (1) day and not more than sixty (60) days from the original meeting date. When a quorum is present at any meeting, the concurring vote of more than fifty percent (50%) of the votes present at the meeting shall be valid and binding upon the Corporation except as otherwise provided by law, the Articles, the Declaration or these Bylaws. X9029098 10. SECTION 3.4 Consent of Members in Lieu of Meeting. Whenever the vote of Members at a meeting thereof is required 2 or permitted to be taken in connection with any corporate action permitted by the statutes of the State of Hawaii governing corporations generally, the meeting and vote of Members may be dispensed with if all of the Members who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such corporate action being taken. ARTICLE IV BOARD OF DIRECTORS SECTION 4.1 Number; Election; Tenure; Removal; Vacancies.. a. There shall be a Board of. Directors of the Corporation of not less than three (3) directors (but always of an odd number). No director need be a Member of the Corporation. The Board of Directors shall consist of three (3) directors, unless and until: (i) The Members of the Corporation shall otherwise determine at any annual or special meeting of the Corporation; or (ii) These Bylaws are amended by the Board of Directors to increase or decrease the number of directors, the Board of Directors being hereby empowered to amend these Bylaws by a majority vote of the directors. %9029098 11. If the number of directors should be increased under the preceding sentence, the new directors shall be elected or f appointed in accordance with the provisions of paragraph (d) below. b. Each director shall hold office for a term of one (1) year or until his or her successor shall have been appointed or elected, or until his or her death or resignation or removal from office. C. The directors shall be appointed or elected in the following manner and in the manner described in paragraph (d) below: (i) Until such time as an annual or special meeting of the Corporation is called after the Conversion Date for the election of directors, the Class_B Members shall have the right to elect or appoint a majority of the directors, and the Class A Members shall have the right to elect the remaining directors. (The directors elected or appointed by the Class B Members are sometimes herein referred to as the "Class B Directors", and the directors elected by the Class A Members are sometimes herein referred to as the "Class A Directors"). Except as set forth in subparagraph (ii) below, no Class B Director, nor any director elected or appointed pursuant to paragraph (d) below by the Class B Directors, may, notwithstanding any other provision in these Bylaws or the Articles to the contrary, be removed or replaced by the Members %9029098 12. of the Corporation or by the remaining directors without the Class B Members' written consent thereto, and in the event of i the death, incapacity or resignation of any Class B Director, or of any director elected or appointed pursuant to paragraph (d) below by the Class B Directors, the Class B Members shall have the right to elect or appoint such director's successor. (ii) Upon the occurrence of the Conversion Date, the Members of the Corporation shall, at the annual meeting or any special meeting called after the Conversion Date for such purpose, elect new directors to replace the Class B Directors and any directors elected or appointed pursuant to paragraph (d) below by the Class B Directors, such new directors to hold office until the next regularly scheduled meeting of the Corporation for the election of directors. (iii) Thereafter, all of the directors shall be elected by the Members of the Corporation. (iv) As used herein, the term "majority of the directors" shall mean that number of directors which is equal to the minimum number of directors constituting a majority of the directors of the Board of Directors (i.e., "majority" shall mean two directors if the Board consists of three directors; three directors if the Board consists of five directors; four directors if the Board consists of seven directors; five directors if the Board consists of nine directors; etc.). X9029098 13 d. If the number of directors should be increased by the Board pursuant to paragraph (a) (ii) above, then the i additional directors shall be elected or appointed in the following manner, and shall hold office until the next regularly scheduled meeting of the Corporation called for the election of directors (at which meeting the directors shall be elected or appointed in accordance with the provisions of paragraph (c) above): The Class B Directors shall elect or appoint such number of new directors such that the number of new directors so elected or appointed by the Class B Directors, plus the number of Class B Directors then serving on the Board, shall constitute a majority (as defined in paragraph (c)(iv) above) of the Board; and the Class A Directors phall elect or appoint the remaining new directors. If the number of directors should be increased at any annual meeting or special meeting of the Corporation pursuant to paragraph (a)(i) above, and if such increase shall become effective at any meeting other than a meeting at which all of the directors comprising the Board are to be elected, then the election called pursuant to the meeting at which the number of directors has been increased shall be for the election of all directors comprising the Board (including those directors whose terms have not yet expired). It is the intent, of the foregoing sentence that the directors shall not have staggered X9029098 14. terms, but that all of the directors comprising the Board shall be elected at the same meeting. At such meeting, the directors shall be elected or appointed in accordance with the provisions of paragraph (c) above. e. Prior to any meeting called for the purpose of electing directors, any Member of the Corporation may nominate candidates for such election; provided, however, that all nominations not made by the Board of Directors must be in writing, must identify the name and address of the nominee and contain a summary of such nominee's business background and other qualifications, must be received by the Secretary at least five (5) business days prior to the date of the meeting for the election of directors, and must be consented to in writing by the nominee. Directors shall be elected by cumulative voting for all elections in which more than two directors are to be elected by the Members of the Corporation. f. Directors (other than Class B Directors or directors elected or appointed by the Class B Directors) may be removed by the membership of the Corporation with or without cause; provided, however, that unless the entire board of directors (exclusive of Class B Directors and directors elected or appointed by the Class B Directors) is removed from office by 50% or more of the votes present at a meeting of the Corporation, no individual director may be removed prior to the expiration of his or her term of office if the votes cast X9029098 15 . against removal would be sufficient to elect such director if voted cumulatively at an election at which the same total i number of votes were cast and the entire number of directors authorized to be elected at the time of the most recent election of such director were then being elected. g. Vacancies on the Board created by the death, incapacity or resignation of a director (other than with respect to Class B Directors and those directors-elected or appointed by the Class B Directors) may be filled by a majority of the remaining directors though less than a quorum, and each director so elected shall hold office until the next annual or special meeting of the Members of the Corporation and thereafter until a successor shall be duly elected. Any director elected by the Members of the Corporation in the foregoing manner shall serve for the remaining unexpired term in respect of which the vacancy occurred. Section 4.2 Meetings; Notice; Quorum. a. An annual meeting of the Board of Directors shall be held each year immediately after the annual meeting of the Members of the Corporation and at the place of such annual meeting, without call or formal notice. Regular meetings of the Board of Directors, other than annual meetings, shall be held on such day and at such time and at the principal office of the Corporation or such other place as shall be determined from time to time by the Board of Directors, and when any such X9029098 16 . meeting or meetings shall be so determined, no further notice thereof shall be required. Special meetings of the Board of Directors may be called by the President or by any two (2) i directors, and any such meeting shall be held on such day, at the principal office of the Corporation or such other place as shall be specified by the person or persons calling the meeting. b. The Secretary shall give notice of each meeting of the Board of Directors in writing by mailing the same not less than three (3) days before the meeting or by giving notice personally, by telephone or by telegraph not less than one (1) day before the meeting, or as otherwise prescribed by the Board. The failure by the Secretary to give any notice required by the foregoing or by any director to receive such notice shall not invalidate the proceedings of any meeting at which a quorum of directors is present. Notice need not be given to any director who shall, either before or after the meeting, submit a signed waiver of notice, and the presence of any director at a meeting shall be the equivalent of a waiver by him of notice of the meeting. Except as otherwise provided by law, the Articles or by these Bylaws, a notice or waiver of notice need not state the purposes of such meeting. C. A majority of the directors comprising the Board of Directors shall constitute a quorum for the conduct of business at any meeting, and any decision of a majority of such X9029098 17. quorum, within the scope of the authority of the Board of Directors, shall be valid and binding on the Corporation. Any i business within the scope of the authority of the Board of Directors may be transacted at any meeting thereof, irrespective of any specification of the business to be conducted at the meeting which may be set forth in the call or notice thereof. Section 4.3 Action by Consent. Notwithstanding anything to the contrary contained in the foregoing, the Board of Directors may take actions without a meeting if all of its directors consent in writing to the action to be taken. Section 4.4 Compensation of Directors. Members of the Board of Directors shall receive no compensation for their services as directors but they may, subject to the Board's approval, be reimbursed for actual expenses incurred. Section 4.5 General Powers. The property, business and affairs of the Corporation shall be managed and controlled by the Board of Directors, which shall have and may exercise all of the powers of the Corporation, including, without limitation, all of the powers of the Corporation as set forth in the Declaration and the Articles, except such as are expressly reserved to or may from time to time be conferred upon the members by law, the Articles, the Declaration or these Bylaws. The Board of Directors may, by resolutions passed by a majority of the directors, create and appoint one or more x9029098 18. committees, each committee to consist of one or more of the directors of the Corporation, and which, to the extent provided t in said resolution or in other provisions of these Bylaws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Corporation. Such committees shall have such names as may be determined from time to time by resolution adopted by the Board of Directors. In addition to the duties imposed by these Bylaws or by any resolution of the Association that may be hereafter adopted, the Board of Directors shall also have the power to and be responsible for the following, in way of explanation, but not limitation: a. Preparation and adoption of an annual budget in which there shall be established the contribution of each owner to the Common Expenses. b. Making assessments to defray the Common Expenses, establishing the means and methods of collecting such assessments, and establishing the period of the installment payments of the annual assessment, if any, provided, unless otherwise determined by the Board of Directors, the annual assessment for each Owner's proportionate share of the Common Expenses shall be payable in equal quarterly installments, each such installment to be due and payable in advance on the first day of each quarter. X9029099 19. C. Providing for the operation, care, upkeep, and maintenance of all of the Area of Common Responsibility. d. Designating, hiring, and dismissing the t personnel necessary for the maintenance, operation, repair, and replacement of the Association, its property, and the Area of Common Responsibility and, where appropriate, providing for the compensation of such personnel and for the purchase of equipment, supplies, and material to be used by such personnel in the performance of their duties. e. Collecting the assessments, depositing the proceeds thereof in a bank depository which it shall approve, and using the proceeds to administer the Association; the reserve fund may be deposited, in the directors' best business judgment, in federally insured depositories other than banks. f. Making and amending rules and regulations. g. Opening of bank accounts on behalf of the Association and designating the signatories required. h. Making or contracting for the making of repairs, additions, and improvements to or alterations of the Common Area in accordance with the other provisions of the Declaration and these Bylaws after damage or destruction by fire or other casualty. i. Enforcing by legal means the provisions of the Declaration, these Bylaws, and the rules and regulations adopted by it and bringing any proceedings which may be %9029098 20. instituted on behalf of or against the owners concerning the Association. i j. Obtaining and carrying insurance against casualties and liabilities, and paying the premium cost thereof. k. Keeping books with detailed accounts of the receipts and expenditures affecting the Association and its administration, specifying the maintenance and repair expenses and any other expenses incurred. The said books and vouchers accrediting the entries thereupon shall be available for examination by the Members and mortgagees of all property owners within the Property, their duly authorized agents, accountants, or attorneys, during general business hours on working days at a reasonable, mutually agreed upon time and manner. All books and records shall be kept in accordance with generally accepted accounting practices 1. Permit utility suppliers to use portions of the Common Area reasonably necessary to the ongoing development or operation of the Property. Section 4.6 Open Meetings. Regular and special meetings of the Board of Directors shall be open to all Members of the Corporation; provided, however, that those Members who are not on the Board of Directors may not participate in any deliberation or discussion unless expressly so authorized by the vote of a majority of a quorum of the Board of Directors. X9029098 21 . The Board of Directors may, with the approval or a majority of a quorum of its Members, adjourn a meeting and reconvene in f executive session to discuss and vote upon personnel matters, litigation in which the Corporation is or may become involved and orders of business of a similar nature. The nature of any and all business to be considered in executive session shall first be announced in open session. ARTICLE V OFFICERS AND MANAGEMENT SECTION 5.1 Appointment, Term, Removal. The officers of the Corporation shall be the President, one or more Vice Presidents, the Secretary, the Treasurer, and in addition thereto, in the discretion of the Board of Directors, one or more Assistant Secretaries, one or more assistant Treasurers, and such other officers, with such duties, as the Board of Directors shall from time to time determine. The officers shall be elected annually by the Board of Directors at the first meeting thereof after the annual or special meeting of the Members at which the Board is elected and shall hold office at the pleasure of the Board until the next annual meeting and thereafter until their respective successors shall be duly elected and qualified. Each officer need not be a Director or Member of the Corporation. Any person may hold more than one office provided that there be at least two (2) persons as Officers of the Corporation. The Board of Directors may, in %9029098 22. its discretion, from time to time limit or enlarge the duties and powers of any officer appointed by it. i SECTION 5.2 The President. The President shall be the Chief Executive Officer of the Corporation. He shall preside at all meetings of the Members and in the absence of the Chairman of the Board of Directors, or if no Chairman of the Board of Directors shall have been appointed, the President shall preside at all meetings of the Board of Directors. He may call special meetings of Members at his discretion and shall call annual meetings of Members, as provided by these Bylaws. Subject to the directions and control of the Board of Directors, the President shall: (a) be in personal charge of the principal office of the Corporation; (b) have the general management, supervision, and control of all of the property, business, and affairs of the Corporation,. and prescribe the duties of the managers of all branch offices, and exercise such other powers as the Board may from time to time confer upon him; (c) subject to approval of the Board, appoint heads of departments, and generally control the engagement, government, and discharge of all employees of the corporation, and fix their duties and compensation. %9029098 23. He shall at all times keep the Board of Directors fully advised as to all of the Corporation's business. SECTION 5.3 The Vice President or Vice Presidents. i The Vice President or Vice Presidents shall, in such order as the Board of Directors shall determine, perform all of the duties and exercise all of the powers of the President provided by these Bylaws or otherwise, during the absence or disability of the President or whenever the office of President shall be vacant, and shall perform all other duties assigned to him or them by the Board of Directors or the President. The Board of Directors may designate one of the Vice Presidents as Executive Vice President and the Vice President so designated shall be first in order to perform the duties and exercise the power of the President in the absence of that officer. SECTION 5.4 The Secretary. The Secretary shall attend all meetings of the Members and of the Board of Directors, and shall record the proceedings thereof in the Minute Book or Books of the Corporation. He shall give notice, in conformity with these Bylaws, of meetings of Members and, where required, of the Board of Directors. In the absence of the Chairman of the Board of Directors and of the President and the Vice President, or Vice Presidents if more than one, he shall have power to call such meetings and shall preside thereat until a President pro tempore shall be chosen. The Secretary shall perform all other duties incident to his X9029098 24. office, or which may be assigned to him by the Board of Directors or the President. i SECTION 5.5 The Treasurer. The Treasurer shall have custody of all of the funds, notes, bonds, and other evidences of property of the Corporation. He shall deposit or cause to be deposited in the name of the Corporation all monies or other valuable effects in such banks, trust companies, or other depositories as shall from time to time be designated by the Board of Directors. He shall make such disbursements as the regular course of the business of the Corporation may require or the Board of Directors may order. He shall perform all other duties incident to his office or which may be assigned to him by the President or the Board of Directors. SECTION 5.6 Assistant Secretary and Assistant Treasurer. The Assistant Secretary or Assistant Secretaries and Assistant Treasurer or Assistant Treasurers, if elected, shall, in such order as the Board of Directors may determine, perform all of the duties and exercise all of the powers of the Secretary and Treasurer, respectively, during the absence or disability of, and in the event of a vacancy in the office of the Secretary or Treasurer, respectively, and shall perform all of the duties assigned to him or them by the President, the Secretary in the case of Assistant Secretaries, the Treasurer in the case of Assistant Treasurers, or the Board of Directors. X9029098 25 . SECTION 5.7 Absence of Officers. In the absence or disability of the President and Vice President, or Vice Presidents if more than one, the duties of the President (other i than the calling of meetings of the Members and the Board of Directors) shall be performed by such persons as may be designated for such purpose by the Board of Directors. In the absence or disability of the Secretary and of the Assistant Secretary, or Assistant Secretaries if more than one, or of the Treasurer and the Assistant Treasurer, or Assistant Treasurers if more than one, the duties of the Secretary or of the Treasurer, as the case may be, shall be performed by such person or persons as may be designated for such purpose by the Board of Directors. SECTION 5.8 Salaries. The salaries and compensation, if any, of officers, agents, and employees shall be determined by or subject to the approval of the Board of Directors. ARTICLE VI REMOVALS SECTION 6.1 Removals. The Board of Directors may at any time, for or without cause, remove from office or discharge from employment any officer, subordinate officer, agent, or employee appointed by it or by any person under authority delegated by it. %9029098 26. ARTICLE VII AUDIT OF BOOKS OF THE CORPORATION The Board of Directors shall cause a complete audit to be made of the books of the Corporation at least once in each fiscal year and more often if required by the Board of Directors, and shall thereafter make appropriate reports to all Members of the Board of Directors and of the Corporation. The Board of Directors may appoint some person, firm, or Corporation engaged in the business of auditing to act as the auditor of the Corporation. ARTICLE VIII CONTRACTS, CHECKS, DEPOSITS AND FUNDS SECTION 8.1 Contracts. The Board of Directors may by general or special resolution authorize the President and/or any other officer or officers of the Corporation to enter into any contract or to execute and deliver any document, instrument, or writing of any nature in the name of and on behalf of the Corporation. In the absence of such determination by the Board of Directors, such instruments shall be signed by the President. SECTION 8.2 Checks, etc. All checks, letters of credit, drafts, or orders for the payment of money, notes, or other evidences of indebtedness shall be signed by: any one of the following: the President, a Vice President, the Secretary, x9029098 27. the Treasurer, an Assistant Secretary or an Assistant Treasurer. 1 SECTION 8.3 Facsimile Signatures. The Board may from time to time by resolution provide for the execution of any corporate instrument or document, including, but not limited to checks, letters of credit, drafts, and other orders for the payment of money, by a mechanical device or machine or by the use of facsimile signatures under such terms and conditions as shall be set forth in any such resolution. SECTION 8.4 Funds. All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such banks, trust companies, or other depositories as the Board of Directors may select. ARTICLE IX INSPECTION OF CORPORATE RECORDS AND BYLAWS SECTION 9.1 Inspection of Corporate Records. The books of account and the minutes of proceedings of the Members and Directors shall be open to inspection upon written demand of any Member, at any reasonable time, and for a purpose reasonably related to his interests as a member. Demand of inspection other than at a meeting shall be made in writing upon the President, the Secretary, or any other officer designated by the Board of Directors. SECTION 9.2 Inspection of Bylaws. The Corporation shall keep in its principal office for the transaction of X9029098 28. business a copy of the Bylaws of the Corporation as amended to date, which shall be open to inspection by the Members at all reasonable times during office hours. ARTICLE X LIABILITY AND INDEMNIFICATION SECTION 10.1 Liability. No Director, officer, employee, or agent of the Corporation and no heir, executor, or administrator of any such person shall be liable-to this Corporation for any loss or damage suffered by it on account of any action or omission by him as such Director, officer, employee, or agent if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of this Corporation, unless with respect to an action or suit by or in the right of the Corporation to procure a judgment in its favor such person shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of his duty to this Corporation. SECTION 10.2 Indemnification. (a) The Corporation shall indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Corporation) because he is or was a Director, officer, employee, or agent of the Corporation or any division of the Corporation, against X902909 a 29. expenses (including reasonable attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or f proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of this Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of this Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. (b) The Corporation shall indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor because he is or was a Director, officer, employee, or agent of the Corporation or any division of the Corporation, against expenses (including reasonable attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and 19029098 30. in a manner he reasonably believed to be in or not opposed to the best interests of this Corporation. No indemnification shall be made in respect of any claim, issue or matter as to t which the person shall have been adjudged to be liable for gross negligence or willful misconduct in the performance of his duty to this Corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. _ (c) To the extent that a Director, officer, employee, or agent of the Corporation or any division of the Corporation has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in paragraphs (a) and (b) of this Section, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including reasonable attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under paragraphs (a) and (b) of this Section (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, officer, employee, or agent is proper in the circumstances because he X9029098 31 . has met the applicable standard of conduct set forth in paragraphs (a) and (b). Such determination may be made (1) by t the Board by a majority vote of a quorum consisting of members of the Board who were not parties to such action, suit, or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested Members of the Board so directs, by independent legal counsel in a written opinion to the Corporation. (e) Expenses incurred in defending a civil or criminal action, suit, or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding as authorized by the Board of Directors in a particular case upon receipt of an undertaking by or on behalf of the Director, officer, employee, or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article. (f) The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnified may be entitled, shall continue as to a person who has ceased to be a Director, officer, employee, or agent, and shall inure to the benefit of the heirs, executors, administrators, and personal representatives of such person. (g) The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, 19029098 32. officer, employee, or agent of the Corporation or any division of the Corporation against any liability asserted against or 1 incurred by him in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article. Any such insurance may be procured from any insurance company designated by the Board. ARTICLE XI FISCAL YEAR The fiscal year of the Corporation shall be such as may from time to time be established by the Board of Directors. ARTICLE XII AMENDMENT; RECONCILIATION OF CONFLICTS Section 12.1 Amendment. These Bylaws may be amended or repealed only upon the vote or written consent of both (a) the Class B members, and (b) seventy-five percent (758) of the total vote of all members of the Corporation; provided, however, that the vote or written consent of the Class B members under clause (a) above shall not be required after the Conversion Date; and provided, further, that these Bylaws may also be amended by the Board of Directors to the full extent permitted by applicable laws. Section 12.2 Reconciliation of Conflicts. In the case of any conflict between the Articles and these Bylaws, the Articles shall control; in the case of any conflict between the %9029098 33. Declaration and these Bylaws, the Declaration shall control; and in the case of any conflict between the Declaration and the Articles, the Declaration shall control. i CERTIFICATE OF SECRETARY I certify that: 1. I am the Secretary of KALOKO COMMUNITY ASSOCIATION. 2. The attached Bylaws are the Bylaws of the Corporation adopted by unanimous written consent of the Board of Directors effective as of Marx h 15 , 19,. DATED : 7 r Secretary X9029098 34. 'rITLE GUARANTY OF HAWAII INCO"ORATM HONOLULU, HAWAII TITLE GUARANTY OF HAWAII, INCORPORATED 1 HEREBY CERTIFIES THAT THIS IS A TRUE COPY OF THE ORIGINAL DOCUMENT RECORDED REGULAR SYSTEM DOCUMENT NO. 93-128138 ON AUGU T 1993 AT 9:50 A.M. BY: LAND COURT SYSTEM REGULAR SYSTEM Return by Mail ( ) Pickup ( ) To: _OS7CO WHOLESALE CORPORATION T-0! 300355 ~L •.')904 12023 AVENUEN N.E. 7GES 33-101-0109 I!_3ZLAND, WA 98033 GLEN Y AJIMINE/BTP AMENDMENT TO MASTER DECLARATION OF RESTRICTIVE COVENANTS THIS AMENDMENT is made this day of o~~J1 , 19992_, by TSA INTERNATIONAL, LIMITED, a Hawaii corporation ("Declarant"). RECITALS: A. The Master Declaration of Restrictive Cov- enants dated March 4, 1991, made by Declarant, is recorded in the Bureau of Conveyances of the State of Hawaii as Document No. 91-041779 (as amended, the "Declaration"). B. Declarant is the sole owner of the property subject to the Declaration and pursuant to Article.IX, Sec- tion 2 of the Declaration, Declarant has the right to amend the Declaration. C. Declarant desires to amend the Declaration. mfi/81220/docs/dec.amend4 Thu Jul 29 16:18:08 1993 AMENDMENTS: NOW, THEREFORE, pursuant to Article IX, Section 2 of the Declaration, the Declaration is hereby amended as follows: t 1. Section 2 of Article IX of the Declaration is amended to read in its entirety as follows: Section 2. Amendment. The Declarant may amend this Declaration so long as it still owns property described in Exhibit "A" provided that such amendment has no material adverse ef- fect upon any right of any Owner. If Declarant does not own any property described in Exhibit "A" or if the amendment sought by Declarant would have a material adverse effect upon any right of any owner, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Members representing seventy-five percent (75%) of the total votes of the Association, as well as seventy-five percent (75%) of the vote held by owners other than the Declarant. However, the percentage of votes nec- essary to amend a specific clause shall not be less than the prescribed percentage of affirma- tive votes required for action to be taken under that clause. No amendment may remove, revoke or modify any right or privilege of Declarant with- out the written consent of Declarant or the as- signee of such right or privilege. 2. The last paragraph at the bottom of page 9 of the Declaration and subparagraphs (a) and (b) at the top of page 10, all of which are contained in Section 1 of Article VI of the Declaration, are hereby amended to read in their entirety as follows: Anything herein to the contrary not- withstanding, Declarant may annually elect in writing to the Association at least sixty (60) days prior to the end of the fiscal year either of the following alternatives as a method of pay- ing its assessments during the upcoming year: (a) pay its Proportionate Share of the assessments as computed pursuant to this Section, or 2 (b) pay to the Association in the form of a subsidy the difference between the amount received in assessments from all Owners other than Declarant and the amount of the actual ex- t penditures required to operate the Association for the year; provided, however, that regardless of the method chosen by Declarant, no Owner shall be required to pay more than his Proportionate Share and Declarant shall never pay or contribute in the form of necessary services or materials less than its Proportionate Share. 3. As amended hereby, the Declaration shall re- main in full force and effect. IN WITNESS WHEREOF, the undersigned Declarant has executed this Amendment effective as of the date hereof. TSA INTERNATIONAL, LIMITED, a Hawaii corpora ,!n By I s Vr Pes~de.A 3 STATE OF HAWAII ) ss. CITY AND COUNTY OF HONOLULU ) On this 30th day of July, 1993, before me personally appeared Hideki Hayashi, to me personally known, who, being by me duly sworn, did say that he is the Vice President of TSA International, Limited, a Hawaii corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors, and the said officer acknowledged said instrument to be the free act and deed of said corporation. ota Public, State o Hawaii My Commission Expires:b~ ~.~5 EXHIBIT B t LOT A Being all of Lot A of a subdivision of Lot 7-D-1, being also a portion of R.P. 8214, L.C. Aw. 7715, Ap. it to Lota Kamehameha. Situated at Kaloko, North Kona, Island of Hawaii, Hawaii. Beginning at the Southeast corner of this parcel of land, being also the Southwest corner of Lot F of a subdivision of a portion of R.P. 8214, L.C. Aw. 7715, Ap. 11 to Lota Kamehameha, on the Northerly boundary of R.P. 7587, L.C. Aw. 11,216, Ap. 36 to M. Kekauonohi, the coordinates of said point of beginning referred to Government Survey Triangulation Station "MOANUTAHEA" being 19,772.73 feet South and 21,383.03 feet West, and running by azimuths measured clockwise-from True South: 1. 780 52' 24.7" 555.57 feet along R.P. 7587, L.C. Aw. 11,216, Ap. 36 to M. Kekauonohi; 2. 1680 52' 24" 408.51 feet along Lot 50 of the Kaloko Light Industrial Subdivision, Unit I (File Plan 1806) and the Easterly end of Lawehana Street; 3. 780 521 24" 2.57 feet along the Northerly side of Lawehana Street; 4. Thence along Lot E. along the remainder of R.P. 8214, L.C. Aw. 7715, Ap. 11 to Lota Kamehameha, on a curve to the left with a radius of 45.00 feet, the azimuth and distance of the chord being: 89° 17' 49" 78.02 feet; 5. Thence along Lot E, along the remainder of R.P. 8214, L.C. Aw. 7715, Ap. 11 to Lota Kamehameha, on a curve to the right with a radius of 40.00 q feet, the azimuth and distance of the chord being: 540 O1' 59" 33.60 feet; 6. 780 521 24" 22.63 feet along the Northerly side of Lawehana Street; 7. 1680 52' 24" 696.99 feet along Lots 49 and 40 of the Kaloko Light Industrial Subdivision, Unit I (File Plan 1806); 8. 2580 52' 24" 658.99 feet along Lot D, along the remainder of R.P. 8214, L.C. Aw. 7715, Ap. 11 to Lota Kamehameha; 9. Thence along Lot D, along the remainder of R.P. 8214, L.C. Aw. 7715, Ap. it to Lota Kamehameha, on a curve to the right with a radius of 30.00 feet,-the azimuth and distance of the chord being: 3030 52' 24" 42.43 feet; 10. 3480 521 24" 727.00 feet along Lot C, along the remainder of R.P. 8214, L.C. Aw. 7715, Ap. 11 to Lota Kamehameha; 11. 780 521 24" 1.00 feet along Lot F, along the remainder of R.P. 8214, L.C. Aw. 7715, Ap. 11 to Lota Kamehameha; 12. 3480 52' 24" 348.50 feet along Lot F, along the remainder of R.P. 8214, L.C. Aw. 7715, Ap. 11 to Lota Kamehameha to the point of beginning and containing an area of 16.188 acres. 2 TITLE GUARANTY OF HAWAII INCORPORATED HONOLULU. HAWAII TITLE GUARANTY OF HAWAII, INCORPORATED i HEREBY CERTIFIES THAT THIS IS A TRUE COPY OF THE ORIGINAL DOCUMENT RECORDED REGULAR SYSTEM DOCUMENT NO. 93-128141 ON AUGUS 0 1993 AT 9:50 A.M. BY: a. LAND COURT SYSTEM REGUILAR SYSTEM Return by Mail ( ) Pickup ( ) To: COSTCO WHOLESALE CORPORATION TG: 300355 10809 120TH AVENUE N.E. TGES: 931010109 KIRKLAND, WA 98033 GLEN Y AJIMINE DECLARATION OF RESTRICTIVE COVENANTS IS DECLARATION is made as of the (LIB day of CL , 19m, by TSA INTERNATIONAL, LIMITED, a Hawail-i corporation, hereinafter referred to as "Declarant," HITNE1.9 ZTIi: WHEREAS, Declarant is the owner of certain parcels of property located at Kaloko, North Kona, County and Island of Hawaii, which are more particularly described in Exhibit "A" attached hereto and incorporated by reference herein (the "Property"); and WHEREAS, Declarant desires to establish restrictive covenants relating to the use of said Property; NOW, THEREFORE, Declarant hereby declares and agrees that the Property is held and shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied and improved subject to the declaration of restrictive covenants herein set forth, which declaration shall constitute a covenant running with the land and shall be binding on and for the benefit of Declarant, its successors and assigns, and all subsequent owners, lessees, or occupants of all or any jec/81220/rest.cov part of the Property and their respective heirs, personal representatives, successors and assigns. 1. RESTRICTION ON USE. f 1.1. Restricted Lots. The Property and every portion and lot thereof, except as otherwise noted in Section 1.2 below, shall not be used for any membership warehouse club purposes, including, without limitation, such clubs as Sam's, Pace, Price Club, BJ's or Meiers. 1.2. Non-restricted Lot. Lot A located within the Property, which is more particularly described in Exhibit "B" attached hereto and made a part hereof, shall not be subject to the restriction on use set forth in Section 1.1 above. Therefore, Lot A may be used for membership warehouse club purposes. 2. DURATION. For a period of ten (10) years from and after the date hereof, the covenants, conditions and restrictions herein contained are to run with the land (the Property) and every lot thereof except as otherwise provided herein and shall be binding on all parties hereto and persons claiming under them. 3. VIOLATIONS. In the event the owner of any lot within the Property or any part thereof or interest therein violates any provisions hereof, the Declarant and/or the owner or owners of Lot A or part thereof or interest therein may bring an appropriate civil action against the defaulting party to enforce specific compliance with this declaration and the provisions herein contained, or to recover damages for such violation, plus a reasonable attorney's fee, as may be incurred by said prosecuting party in such proceeding or action. Failure by the Declarant, any other owner or owners of a Lot within the Property, or their representatives, heirs, successors, or assigns, to enforce any of the covenants, conditions or restrictions herein contained shall in no event be deemed a waiver of the right to enforce the same thereafter, unless otherwise herein provided. 4. SEVERABILITY. Invalidity or unenforceability of any provision of this declaration in whole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of this declaration. 2 5. AMENDMENTS. This declaration shall continue in full force and effect and shall not be repealed, amended or altered in any way during the term hereof. IN WITNESS WHEREOF, Declarant has caused this t instrument to be executed the day and year first herein written. TSA INTERNATIONAL, LIMITED, a Hawaii corporation By Its VICE PMIDERT - 3 STATE OF HAWAII q. CO!/~1J7% Of t~vrwl~^ u~, ) ss. i On this day of 7221e)S , 19,f& before me appeared HIMIHAYASHI , to me personally known, who being by me duly sworn, did say that hefahe is the IfICE PRESIDENT of TSA INTERNATIONAL, LIMITED, a Hawaii corporation; that said instrument was signed in behalf of said corporation by authority of its Board of Directors; and said officer acknowledged said instrument to be the free act and deed of said corporation. 1 v L.S Not Public, State of F waif My commission expires: EXHIBIT A That certain parcel of land situate at Kaloko, North Kona, Island and County of Hawaii, State of Hawaii, being more particularly described as follows: LOT 7-D (portion of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), and thus bounded and described as follows: Beginning at the northwest corner of this :parcel of land, the northeast corner of Lot 21 of xaloko Light Industrial Subdivision, Unit I, File Plan 1806, and on the south side of Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana 11 to Lota Kamehameha at Kaloko), the coordinates of said point of beginning referred to Government Survey Triangulation Station "MOANUTAHEA" being 17,071.65 feet South and 22,832.05 feet West and running by azimuths measured clockwise from True South: 1. 2420 26' 13" 54.65 feet along Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana it to Lota Kamehameha at Kaloko); 2. Thence along Roadway Lot (remainder of R. P. 8214, L. C. Aw. 7715, Apana it to Lota Kamehameha at Kaloko), along a curve to the right having a radius of 2460.00 feet, the chord azimuth and distance being: 2690 48' 53.7' 2262.50 feet; 3. 3310 39' ON 2675.13 feet along Lot 7-C (remainder of R. P. 8214, L. C. Aw. 7715, Apana li to Lota xamehameha at Kaloko); 4. 800 46' 14.7" 1189.38 feet along R. P. 7587, L. C. Aw. 11216, Apana 36 to Keakuonohi at Kaloko; 5. 780 52, 24.7' 1531.64 feet along R. P. 7587, L. C. Aw. 11216, Apana 36 to xeakuonohi at Kaloko; 6. 1680 52, 24" 408.51 feet along Lot 50 and Road A of Kaloko Light Industrial Sub- division, Unit I, File Plan 1806; 7. 786 52' 24" 132.42 feet along Road A of Kaloko Light Industrial Subdivision, Unit It File Plan 1806; S. 1680 52' 24" ' 756.99 feet along Lots 49, 40 and Road A of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 9. 258° 52' 24" 10.82 feet along Lot 39 of Ralcko Light Industrial Subdivision, Unit I, File Plan 1806; s 10. 1680 52' 24" 350.02 feet along Lot 39 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 11. 780 52' 24" 83.94 feet along Lot 39 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 12. 75° 06' 45.51 feet along Lot 39 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 13. 1640 19, 04" 341.55 feet along Lot 31 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 14. 1650 01' 36" 60.00 feet along Road A of Kaloko Light Industrial Subdivision, Unit It File Plan 1806; 15. 1640 19' 42" 348.55 feet along Lot 30 of Kaloko Light Industrial.Subdivision, Unit I, File Plan 1806; 16. 2450 49' 18" 76.27 feet along Lot 22 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 17. 2580 52' 24" 31.87 feet along Lot 22 of Kaloko Light Industrial Subdivision, Unit It File Plan 1806; 18. 1590 59' 24' 320.23 feet along Lot 22 of Kaloko Light Industrial Subdivision, Unit I, File Plan 1806; 19. 690 39, 12" '34.90 feet along Lot 22 of Kaloko Light Industrial Subdivision, Unit Z* File Plan 1806; 20. 159° 19, 346.41 feet along Road A and Lot 21 of Raloko Light industrial Subdivision, Unit It File Plan 1806, to the point of beginning and containing an area of 164.563 acres. Tax Map Key: Hawaii 7-3-51-1 (portion) 2 A -65 STATE Or NANAII BUREAU Or CON AUG 06. 1993 / 09:50 AN Dec No(9) 93- 136160 mamma /a/ S mamma V REGISTRAR Or COIVSYAHCES CONVEYANCE TAX: $0.0 Retarn by Mall ( ) Pickup ( ) Tot TIa o0006 M pS ee.tC9 ,.W.a.A1S 09100122101 /tarp CM0(oio9 1o... 12021 K9lN e.2. 6111L0e. 1A &,en U . Rjinuna ISDISSIMASSZnan /� 18IS AGREEMENT is made this day of I,{!��dAW , 1993, by and between tat INTEAK►.TIaIAL, LIMITED a Hawaii corporation, with its ad- dress at 3060 Nailed Aiemni, Suits 101, Wailed, Maui. Hr. wall (•T5&'), and COSTOO NNOI.SSALS CORPORATION, a Washington corporation, with its address at 10909 120th AYanha N.S., Kirkland. Washington •Coatoo•)3 1 Sr C3 d6Er 6t mums, pursuant to County of Hawaii Ordinance Na. 91 -55, certain property referred to as Lot 7-0 and more particularly described in Exhibit A attached hereto end made a part hereof (the •TSA Lot") Is encumbered by an es- sesamsnt in the original principal amount of $3,310,200 for Improvement District No. 17 (the scheduled principal �N- an0s of the assessment as of the recordation el this ment together with interest thereon accruing after recorda- tion is called the • ant"); end )mA(2H994w...5 1 I �� WHEREAS. pursuant to that certain Property Pur- chase Agreement dated lebruaiy 25, 1993 by and between SBA and Costco, Costae is purchesllnq a portion of the ESA Lot which will be legally subdivided fros the TVA Lot prior to closing, which lot is sore particularly described in Ex- hibit R attached hereto and made a part hereof (the *Costoo Lots): and WHEREAS, three roadway lots (collectively, the ' Lots•) will also be legally subdivided from the T8a Lot prior to closing; and WHEREAS, it is the intent of 15A and Costoo that the portion of the original sent and interest due and payable prior to closing be TIA•s sole responsibility, and that the Assessment payable after closing be allocated on the basis of the relative acreage of the Costae Lot, the Roadway Lots and the rescinder of the T8A lot; WHEREAS T8A and Costae desire to set forth their agreement concerning the proration of the Assessment be- - began the lots owned by the parties; WOW, THmREORE, in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which 1s hereby eoknovledged, VIA and costco do hereby agree me fellows: 1.1 LommAb.. The TWA Lot constitutes ap- proximately 166.561 acres (including the roadway lots). The Costae Lot constitutes approximataly 16.166 acres. The Roadway Lots constitute approximately 3.716 acres. After subdivision of the Costoo Lot and the Roadway Lots, the remaining ESA Lot will constitute approximately 144.659 acres (tie 0 T8A Subdivided Lots). In general and in ea- . cordone with the provisions of this Agreement, the parties have agreed to prorate the Assessment based upon the rela- tive acreage of the ESA Subdivided Lot, the testae Let and the Roadway v � N Lot; provided, however, at ESA will pay 756, and Costae the Roadway Lot as furth er l prorated erdescribbed 1 in Section 1.4 against below. 1.2 Aareed Ccatro L=t aecreoation, The percentage share of the Assessment payable by Costae for the Costae Lot shall be derived by dividing 16.188 by 164.563 (9.8369618) (^Costoo•s Lot shares). for example, if the outstanding principal balance of the Assessment as of the dab of Costae•s acquisition of the Costae Lot (the 1 . . • *Acquisition Data ") is 13,100,000, then Coetco•• Lot Share of the principal Would be $306,576. 1.3 Aaresd Tea 6ubdiviead Tat aaaraaetl s The percentage share of the Asset s s.ent payable by TSA for the TSA Subdivided Lot .hall be derived by, dividing 144.659 by 164.563 (67.9049364) ( T3A•s Lot Share"). For example, if the outstanding principal balance of the Assessment as of the Acquisition Date is 42,100,000, then Tales Lot Share of the principal Would be $1,646,004. 1.6 Th percentage re of the Assessment ottr butable to the Roadwlots shall be derived by dividing 16 ay (3.3661034) (the "Roadway • by 164.563 y Lot. pay .eve nt five percent Segregation"). m ) . ots stall ive y - (754) C the e allaY lots y -f pe (tT 5 • Roadway Share"). Costa, e shall pay twenty-five Roadwa (3 y (har) the Roadway Luis Segregation ( Roadway e). ). ex of the AssessAssessment you example, o ss, 1t tuisitio principal balance 00 Assessment a t of the g rqationce Date is $2, $4 then the Roadway 5u Segregation a a would 147,430i would pay 435,565 e! this r.p Costae 11 would ths ce pay tio,/th. Thar f foregoing of th i an paragraph wa i waa bated upon the assumption that the Assessment Will allocated upon to relative against a of t! the duty Within the TSA based pons If the Assessment against the Roadway based is ied ypo an allocation other than relative acreage the liability of f TSA amo and Costae u this paragraph ira p. limited o to y Sha0ets they would have Dead d fe beetallr re atdsba Roadway Shares if the Assessment had been allocated bred upon relative relative acreage. g 3. F. motors ernratinn. pursuant to Section 13- 30 of the Hawaii County Ordinances, upon petitiwa the owners of lots which were assessed prior t0 subdivision, the County Council ("County") may prorate to origyinal as- sessment among the lots resulting Cron the subdivision by an appropriate aasndaent to the ordinance declaring the as- .eaament. The parties intend to petition the County for • proration of the Assessment. The parties acknowledge that the County may not prorate the Assessment or that the County's proration of the Assessment may be different than the proration agreed to by the parties. It is the intent of the parties that costae call be obligated to pay no more than the costae's Lot Share plus Cestco•• Re•dvay Share and that TSA shall be obligated to pay no sore than the TSA'. Lot Share plus TSA•a Roadway Share. The parties have agreed to indeaify each other, t0 the extent provided in Sections 3 and 4 below against liability for the A.- sess.ent in excess of their 'respective Lot Shares. 3 • 3. T8A Aaresmeer to indemnify. TSA shall defend and indemnify Costoo from any claim, losses or liability that Castoo incurs with respect to the Coate* Lot resulting from the Assessment (including any interest accrued under the Assessment), in excess of Costoo•s Lot Share. Notwithstanding the foregoing, TSA shall only be liable to Costoo hereunder for the assent by which TSA pays lees than Tas•s Lot Share of the Assessmnt for this Talk Subdivided Lot. For example, TBA shell be liable for any amounts by Mich the County's claim against or proration for the Costco Lot *mooed. Costco•s Lot Share, but only to the extent by which TSA pays less than TSA•s Lot Share for the TSA subs vid.d Lot. The foregoing indemnity shall not apply to any claim, losses or liability arising out of Costco•s Roadway Share. 4. Costoo Aaraesant to fndaa Costoo shall defend and indemnify TSA from any alai•., losses or li- ability that Ten incurs with respect to the Tas Subdivided Lot resulting from the Assessment (including any interest accrued under the Assessment), in excess of Takes Lot Share. Kotwithetanding the foregoing, Costoo shall only be liable to TSA hereunder for the amount by which Costoo pays less than Csetao•s Lot Share of the Assessment for the Costoo Lot. For example, Co.tco shall be liable tor any amounts by which the County's claim against or proration for the TSA Subdivided Lot exceeds Takes Lot Share, but only to the extent by which Costoo pays less than Costco•■ Lot Share tor the Costoo Lot. The foregoing indemnity shall not apply to any claims, louse or liability arising out of TSA's Roadway Share. 5. Pays.at. Lien and RioA .. Fora 1 mix- coos . •ax- coos Coat Segregation • as used herein shall mean any claims losses or liability for which TSA has agreed to indemnify Costoo hereunder or for which Costae has agreed to indemnify TSA hereunder. ■ Any Excess Cost Segregation shall be due and payable by the ind.anitor within ten (10) days after written notice has been mailed by the !mdse- . nit... specifying the amount owed. Any unpaid •aces. Cost Segregation (i) owed by TSA shall constitute a lien on the remaining portion of the TSA Lot owned by TSA as of Cestoo's acquisition of the Coate° Lot and on any improve- . cents on such remaining portion of the TSR Lot, (ii) owed by Costoo shall constitute • lien on the Costoo Lot and on any iaproveaents on the Costao Lot, which limn shall be prior to all other liens, except only (x) liens for taxes le 1 • 1 and assauaants lawfully imposed by governmental authority, and (y) liens for sums unpaid and coats and sxpansea, in- cluding attorney's team, on any mortgage recorded in the Bureau of Convayencae prior to the recordation of this Agreement, unless much mortgage is subordinated to this Agreement. Such lien for unpaid Excess Coat Segregation may be foreclosed by suit by the indeanitee in like canner as the foreclosure of • mortgage of real property, provided that thirty (30) days' prior written notice of intention to foreclose Wall be mailed by certified mail to the Judean' - tor. Upon receipt of such notice, the indeanitor shall be entitled to pay all unpaid aounte of Excess Cost Segrega- tion and the Sodomite* shall accept such payment in satis- faction thereof and thereupon release and discharge the lien securing the payment thereof. The indemnitea shall be entitled to hid on the property subject to the lien at foreclosure sale and to acquire, hold, lee*, mortgage and convey such property. The indeanitee Wall be entitled to bid up to the amount of its lien in lieu Of ash. Action to recover • money judgment for unpaid recess Cost segrega- tion shall be maintainable without foreclosing or waiving the lien securing such expenses. 6. anraaant to raon stta. TWA agrees to coop- erate with Costae in obtaining • proration of the Assess - sant Iron the County and agrees to execute all such further intent of • this Agreement, documents cluding, wi thoutelimitation, the in • petition to the County for • proration of the Assam - ment. TEA hereby irrevocably grants to Ccetoo a limited power of attorney, coupled with an interest, to act as Ta•s attorney in tact for the limited purpose of pursuing • petition with the County. The parties will endeavor to obtain a proration of the Assessment from the County based upon land area and not upon appraised value. If the par- ties are unable to Obtain .nab proration, they agree to endeavor to obtain a proration based upon the value of the land in unimproved condition. Notwithstanding the Outcome of the petition to the County, the indemnity provisions of Sections 3 and • Wall remain effective. 7. proration 02 Le .nass. ESA end Coate° each agree to pay their pro rata share of all expenses incurred in connection with obtaining • proration of the Assessment Iron the County, such pro rata share to be determined based upon the relative acreage of (a) the TWA Subdivided Lot in comparison to (b) the Costco Lot, except that each party atoll pay for its own attorneys' fees relating thereto. • W 1 • 6. poratt nn of Armament. This Agreement shall remain in full force and affect until the Aseasnemt 1s paid in full. 9. N aaailanaoua praviainn.- icier upon 9.1 $n waiver. No failure by any party to the terms and performance by the other party of any of or be deemed to provisions bs awaiver of any uch term shall constitute s, Y provision, or constitute an amendment or of any spar y or provision of p by course if too r .c., t, and such paper, , not- withstanding 'the any right to insist upon strict shall w the tigg t strict to nyaand upon tat performance by the other party of any and all of the terms and provisions of this Agreement. 9.9 gnverninh Lew. The interpretation, construction and enforcement of this Agreement, and *11 batters relating hereto, shall be governed by the law of the State of Hawaii. 9.1 Attorneys! Feu. Hash party hereto 'hall be entitled to recover from the other party all oasts and expenses, including attorneys* fees • incurred by the prevailing party in enforcing any of tits terms and provi- sions of this Agreement, in readying any breach by the other party, collecting any Sum due hereunder or in oon- nsotion with any litigation eeananod by or against any party to Whim the ether, without any fault on its part, shall be bade • party. 9.4 partial invalidity, if any provision hereof 1s bald invalid or not enforceable to its fullest extant, ouch provision shall:be enforced to the extent ppaatt S to mof sshhallvnot and be the validity • remaining provleSOAu 9.5 yn 1n4.,t pant. *s. The execution and performance of this Agreement, each party's review and ap- proval rights, if any, described in this Agreement, the agreements of the parties in.this Agreement and the exer- cise of any rights hereunder, are not intended, and shall not be construed, to create • partnership. joint venture or co- tenancy among the parties. 9.6 Noting. All notices, requests, de- ' cads, waivers or documents Whim are required or permitted to be given or served hereunder shall be in writing and 6 • • • • • • personally delivered, or sent by registered or certified mail, postage prepaid, to the other party. 9.7 ^n"ntteiROXIla, This Agreement may be executed in two or sore counterparts, each Of which shall be deemed to be an onyinal, but all of which shall consti- tute one and the same instrument. 9.4 BYr and nentnnoS. The headings of section and subsection here are inserted Only !Or shall cenve nienCe and reference and a scribe tbs scope oor inteofiany provision o! this or • Agreement. 9.9 yefersnatLidiaandalId. except as expressly provided herein to the contrary, all references to day in determining the time for performance shall mean calendar days. If any time period ends on a Saturday, Sunday or State of bewail bank holiday, the time period shall be extended to the next day that is not • Saturday. Sunday or such holiday. 0.10 gingdaslAb. each party agrees to co- operate in good faith and diligently pureme the p.rtermanoe of all covenants and agreements and the sati.f.Otion of all conditions, contained in th Agreement. 9.11 Sinalem Effect. its Agreement shall be binding upon and shall inure to the benefit of the par - ties run with their respective SSubdivided Lot (excluding roadway and and the Cost= Lot. 9.17 T1.. et Saeanre. Tins is of the es- sence as to every provision of this Agreement. party 9.13 auboydination. At the request of the other mortgage .bich i pri to this Agreement to consent and agrees to request the holder of subordinate to this Agreement. • 7 • • IM MITEEBs M.E.iOr, the parties hereto have ex- ecuted these presorts as at the day end year Tir.t above written. TWA INTIMMATIOMAL, LIMITW B y _.. InCC riBroun •TnA• • COBTCO WHOLEBALJ CORPORATION By Its "co.t.ov • ' I Indemnity Agreement B BENT BY:00005I11 ETAL 7 1 -10-01 1 Pi11PN 1COaNNICATIONS DEPT.. uO00t0110511 1 • • IIr UMW nor the parties a hetet. here .aster tae.e presets a et 1 A L. r.7 ..4 7••r tint arts Written. ru sr>1111anoran, zva w . • . •re• aortaO aBlitaia componl or at t kiceliasela. Aguretat ocestoe Indemnity Agreement r STATE OF HAx,1TT C/67 On this a?W day 32/40 1993, ha- fore se sppearsd 1 0EKI HAY*SHI , by s• personally known, who being by •s duly sworn, did say that M is f yl • iinstrument d instrument wee signed is behalf a Hawaii said corporation: that c said idooffi by authority or its rd en of irsaid aeters) and d did o aeknowlknowletl said i6 SNnstCNNa1t to b and deed the free sot sag of said lien. ( j x { li 9 tsts oL n i My commission expires: it/FfhtlFi • 1M 9 • SENT BY:600DSILL ETAL : 6 -14 -11 2:It141 :CONNUNIQATIONS DEPT.» 2001461106:# 4 NUM OP VANNISPION t as. COOIITY or ‘1:: - •N baron Ea 42aapthis to day of '' f �. 3.11113, y' ' flora. . that by sa ha la time . SION. t .01 that said is.trumot u.. sighed In Shale at oarpattia. M authority of its hoard et idrootoa.l and said cation tolaroyiadha/ said ia. u tat to La tue true sat el dad K said oapana- o tary .leta or. . --• • No l.bi]o. s f Imi USAA W. MttlOAND 1C/ omaia-i.Oa ahpiraal L3 - /., -9 TATE DF --Pt I1I10N NOTARY- E- FUIIIC 04444i41(.b6 ID EXHIBIT A Lot 7 -D (portion of R. P. 8214, L. C. Aw. 7715, Apana 11 to tote Iamehameha at Ialoko), and thus bounded and described as follows, parcel of land, the r rtheast corner o! Lot rthwest n 21 of 'aloha Light Industrial Subdivision, Unit I, Pile Plan 1806, and on the south side of Roadvey Lot (remainder of R. P. 0214, L. C. Aw. 7715, Apana 11 to Lota Raaehaaeha at Ialoko), the coordinates of said point of beginning referred to government Survey Triangulation station 110iWWIAna' being 17,071.65 foot South and 22,832.05 loot Rat and running by azimuths measured clockwise from True South, 1. 742. 26' 13' 54.65 feet along Roadway Lot (remainder of R. P. 8214, L. C. Av. 7715, Apana 11 to Lott Ramehameha at 'alnko), 2. Thence along Roadway Lot (reminder of R. P. 8214, L. C. Av. 7715, Apana 11 to Iota Ramehaaha at Ialoko), along a curve to the sight having a radius of 2460.00 feet, to chord asimuth and distance being; 269• 48' 53.7' 2262.50 foot; 3. 331. 39' 45' 2675.13 foot along Lot 7-C ( remainder of R. P. 8214, L. C. Av. 7715, Spam 11 to Iota Iamehameba at Ialoko); 4. 00• 46' 14.7' 1189.38 feet along R. P. 7587, L. C. Aw. 11216, Agana 36 to Ieaknonobl at Raloko; 5. 78• 52' 24.7' 1531.64 feet along R. P. 7587, L. C. Av. 11216, Apart* 36 to Ieakuonabi at Raiako, 6. 168. 52' 24' 400.51 feet along Lot 50 and Road a of Ialako Light Industrial Sub- ' division, Unit I, Pile Plan 1806; 7. 78 52' 24' 132.42 foot along Road A of Raleko Light Industrial Subdivision, Unit I, Pile Plan 1806; 1 • B. 168 52' 24" ' 756.99 of Malabo 0 Light Industrial SOad i Lots 49, 40 and Subdivision, Unit 1, Pile Plan 1806; 9. 258' 52' 3 4• 10.83 Industrial n Subdivision, unit I, Pile Plan 1806; 10. 168. 52' 3 4• 350.02 Industrial Subdivision, Unit Light , Pile Plan 1806; 11. 78• 52' 24" 83.94 Industri Subdivision, o Unit 1, Pile Plan 1806; 12. 75' 06' 45.51 fest along Lot 39 of taloko Light Industrial Subdivision, Unit I, Pile Plan 1806; • 13. 164' 19' 04' 3 41.55 feet ndustr e�i of Wok* Light I, Pile Plan 1806; 14. 165' 01• 36^ 60.00 teat ustrial 'aloha Light , Pile Plan 1806; 15. 164• 19' 42' 348.55 feet alo Lot 30 of Ulan Light Industrial Ulan Subdivision, Unit I, Vile Plan 1806; 16. 245' 49' 18" 76.27 I trial Subdivision, Unit Light Pile Plan 1006; U 1006; 17. 258' 52' 34• 31.87 feet ndustrial Subdivision, Unnii I,Tt Pilo Plan 1806; 18. 159• 59' 24^ 320.23 feet ndus Subdivision luunniit Liebe Pile Plan 1806; 19. 69' 39' 12' 14.90 teat along Lot 22 of Saloko Light Industrial Subdivision, Unit I, Pile Plan 1806; .2 • =` 1 .3 r: 20. 159. 19• 346.41 fat along Road A and Lot 21 of Raloko Light Industrial Subdivision, Unit I, Tile Plan 1806, to the point of be inning and containing an area of 164.561 acres. TAR Lap Keys Hawaii 7-3-51-1 (portion) 1 3 E MI 7n. a ILEA Being all of Lot A of • subdivision of Lot 7 -0-1, being also • portion of R.P. 8214, L.C. Aw. 7715, Ap. 11 to Lots %amehameha. Bitusted at Ialoko, North Iona, Island of Hawaii, Bewail. Beginning at the Southeast oornar of this parcel of land, being also the Southwest corner of Lot F of a subdivision of • portion of R.P. 6214, L.C. Av. 7715, Ap. 11 to Lots $snhaaaha, an the Mmrthaely boundary of R.P. 7687, L.C. Ace. 11,116, Ap. 31 to M. Bakauonohi, the coordinates of said point of beginning referred to Bovernnent Survey Triangulation Station 9 140ANBLNRA• Wing 19,772.71 feet South and 21,383.03 feet West, and running by ailmmths measured clockwise from True South: 1. 78. 52. 24.7• 555.57 feet along R.P. 7587, L.C. Av. 11,216, Ap. 36 to N. %ekauonobi: 2. 166. 52. 24• 408.51 feet along Lot 50 of the %slako Light Industrial Subdivision, Unit I (File Plan 1606) and the eesterly end of Lavabana • Street; 3. 78. 52. 24• 2.57 feet along the Northerly side of LawehIna Street; 4. Than along Lot E, along the remainder of A.P. 8214, L.C. Av. 7715, Ap. 11 to Leta Xamehameba, on • curve to the left with • radius of 45.00 fast, the azimuth and distance • of the chord being: 1 09. 17' 49" 76.02 feet; 5. Thanes along Lot 5, along the remainder of R.P. 6216, L.C. Av. 7715, Ap. 11 to Lots Aaoonsmama, on • curve to the right with • radius Of 40.00 feet, the azimuth and distant* of the chord Ming, 54* 01. 59* 33.60 feet; 6. 79. 52. 24" 22.62 feat along the Northerly side of Lavahana Street; 7. 169. 52. 24" 696.99 feat along Lots 49 and 40 of the baloko Light Industrial Subdivision, Unit I (Pile Plan 1906); 6. 256. 52. 26" 655.99 teat along Lot 0, along the remainder of R.P. 6216, L.C. Aw. 7715, Ap. 11 to iota Nasehamehal 9. Thence along Lot D, along the remainder of R.P. 6216, L.C. Av. 7715, Ap. 11 to Lott bemehte.ha, on • curve to the right with a radius of 30.00 feet, the esimuth and distance of the chord being; 302. 52. 26• 42.43 feet; 10. 362. 52. 26* 727.00 feat along Lot C, along the remainder of R.P. 6214, L.C. Av. 7715, Ap. 11 to Leta Aamhtm.ha; 11. 76. 52' 24" 1.00 feat along Lot P, .long the remainder Of A.P. 6214, L.C. Av. 7715, Ap. 11 to Lott bamehameha; 12. 342. 51• 24" 342.50 test along Lot P, along the remainder of R.P. 6216, L.C. Av. 7715, Ap. 11 to Lota Naa.hsmeha to the point of b.9inninq and containing an area of 16.166 scram. 2 1