exv10w28






Exhibit 10.28




TWELFTH AMENDMENT OF AGREEMENT OF PURCHASE AND SALE

AND JOINT ESCROW INSTRUCTIONS




     THIS TWELFTH AMENDMENT OF AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (this
“Amendment”) is entered into as of the 27th day of April 2010, effective as of April 27, 2010, by
and among WEST OAHU MALL ASSOCIATES, LLC, a Hawaii limited liability company (“Seller”) and TNP SRT
WAIANAE MALL, LLC, a Delaware limited liability company (“Buyer”).



     WHEREAS,
Seller and TNP ACQUISITIONS, LLC, a Delaware limited liability company (“TNP”) entered
into that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated as of July 13,
2009, as amended by that certain First Amendment of Purchase and Sale and Joint Escrow Instructions
dated July 22, 2009, that certain Second Amendment of Purchase and Sale and Joint Escrow
Instructions dated August 13, 2009, that certain Third Amendment of Purchase and Sale and Joint
Escrow Instructions dated August 31, 2009, that certain Fourth Amendment of Purchase and Sale and
Joint Escrow Instructions dated October 15, 2009, that certain Fifth Amendment of Purchase and Sale
and Joint Escrow Instructions dated November 24, 2009, that certain Sixth Amendment of Purchase and
Sale and Joint Escrow Instructions dated December 15, 2009, that certain Seventh Amendment of
Purchase and Sale and Joint Escrow Instructions dated December 23, 2009, that certain Eighth
Amendment of Purchase and Sale and Joint Escrow Instructions dated January 11, 2010, that certain
Ninth Amendment of Purchase and Sale and Joint Escrow Instructions dated January 18, 2010, that
certain Tenth Amendment of Purchase and Sale and Joint Escrow Instructions dated March 15, 2010,
and that certain Eleventh Amendment of Purchase and Sale and Joint Escrow Instructions dated April
13, 2010 (collectively, “Purchase Agreement”), pursuant to which Seller agreed to sell, and Buyer
agreed to purchase, certain Property located in Honolulu, Hawaii and more particularly described in
the Purchase Agreement;



     WHEREAS, in accordance with the terms of the Purchase Agreement, the rights and obligations of
TNP have been assigned to and assumed by Buyer pursuant to an Assignment and Assumption Agreement
dated December 14, 2009 between TNP as assignor and Buyer as assignee;



     WHEREAS, pursuant to the Purchase Agreement, the Closing Date shall be extended to the fifth
(5th) calendar day after Buyer’s receipt of: (i) written notice that the Conduit Lender
has approved Buyer’s proposed assumption of the Conduit Loan and (ii) execution versions of the
loan assumption documents, in form and substance acceptable to Conduit Lender and to Buyer; but in
no event shall the Closing Date be later than the Outside Closing Date;



     WHEREAS, pursuant to the Purchase Agreement, the Outside Closing Date is defined as April 19,
2010;



     WHEREAS, Buyer did not receive the approval of the Conduit Lender to Buyer’s assumption of the
Conduit Loan on or prior to the fifth (5th) calendar day before April 19, 2010 and
therefore the Purchase Agreement terminated in accordance with its terms;



 









 





     WHEREAS, Seller and Buyer desire to reinstate and amend the Purchase Agreement as set forth
herein;



     NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:



     1. Recitals; Defined Terms. The foregoing recitals are incorporated herein by this
reference. Terms written with initial capital letters shall have the meanings given to them in the
Purchase Agreement, unless expressly otherwise defined in this Amendment.



     2. Reinstatement. Seller and Buyer hereby reinstate and ratify the Purchase Agreement
as modified by this Amendment.



     3. Amendment. The Purchase Agreement is amended as follows:



              a. Section 1.6 of Section 1 of the Purchase Agreement is amended by adding the following new
paragraphs at end of such Section 1.6:




     Buyer shall have an option to extend the Outside Closing Date to May 28, 2010 in
consideration of and upon payment of One Hundred Fifty Thousand Dollars ($150,000.00) to
Seller (“Option Consideration”). To exercise such option to extend the Outside Closing Date
to May 28, 2010, Buyer must, prior to 5:00 p.m. (Hawaii Standard Time) on April 27, 2010,
give Seller and Escrow Holder written notice of such exercise and irrevocably instruct
Escrow Holder to immediately release to Seller One Hundred Fifty Thousand Dollars
($150,000.00) of the sums held by Escrow Holder. Upon the proper exercise of the option and
payment of the Option Consideration, the Outside Closing Date shall be extended to May 28,
2010. The extension of the Outside Closing Date shall be conditioned on the payment to
Seller of the Option Consideration. The Option Consideration upon exercise of the option
shall be non-refundable and shall not be repaid to Buyer under any circumstances, including
upon the failure of conditions precedent.




     Upon exercise of the option to extend the Outside Closing Date as set forth above and
payment of the Option Consideration to Seller, Section 1.2 of Section 1 of the Purchase
Agreement shall be amended by deleting such Section 1.2 in its entirety and substituting the
following provision:



	 	 	 	 	 

	     
	 	“1.2 “Purchase Price”:
	 	Twenty-Five Million Five Hundred Thirty-Eight

Thousand Dollars ($25,538,000.00), plus the GSA

Reimbursement amount described in Section 2.1.2.”








     Upon exercise of the option to extend the Outside Closing Date as set forth above and
payment of the Option Consideration to Seller, Section 1.3 of Section 1 of the Purchase
Agreement shall be amended by deleting such Section 1.3 in its entirety and substituting the
following provision:



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	 	“1.3 “Deposit”:
	 	“Initial Deposit”: Fifty Thousand Dollars

($50,000.00).


	 	 	 	 	“Additional Deposit”: Fifty Thousand Dollars

($50,000.00).”







              b. Section 2.4.1.2 of the Purchase Agreement is amended to add the following sentence at the
end of Section 2.4.1.2:




	 	 	 	Notwithstanding the provisions of Section 2.4.1.2 set forth above, Seller shall have no
obligation to provide updated estoppel certificates from any Tenant who has provided or
provides an estoppel certificate prior to the date the Conduit Lender approves the
assumption of the Conduit Loan.





     4. Counterparts; Facsimile. This Amendment may be executed in any number of
counterparts. Each such counterpart hereof shall be deemed to be an original instrument but all
such counterparts together shall constitute but one agreement. The submission of a signature page
by facsimile transmission shall be considered an original signature page for purposes of this
Amendment.



     5. No Other Effect. As amended hereby, the Purchase Agreement remains in full force
and effect without further modification or amendment.



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     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first
written above.



	 	 	 	 

	SELLER:
	 	West Oahu Mall Associates, LLC,

A Hawaii limited liability company


	 
	 
	 	By: /s/ Faraz Daneshgar
	 
	 	 	 
	 
	 	 	Name: Faraz Daneshgar 

Title:
	 
	 	 	 
	 
	 	 	 
	 
	BUYER:
	 	TNP SRT WAIANAE MALL, LLC,

a Delaware limited liability company


	 
	 
	 	By: /s/ Anthony W. Thompson
	 
	 	 	 
	 
	 	 	Name: Anthony W. Thompson

Title:
	 






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CONSENT OF ESCROW HOLDER




     The undersigned Escrow Holder hereby agrees to (i) accept the foregoing Amendment, (ii) be
Escrow Holder under said Purchase Agreement and Amendment and (iii) be bound by said Amendment in
the performance of its duties as Escrow Holder; provided, however, the undersigned shall have no
obligations, liability or responsibility under this Consent unless and until said Amendment, fully
signed by the parties, has been delivered to the undersigned.



	 	 	 	 	 	 

	DATED: April 27, 2010
	 	TITLE GUARANTY ESCROW SERVICES, INC




	  
	 	By
	 	/s/   BARBARA PAULO
	 	 	 	 
	 
	 	 	 	Its
	Assistant Vice President 	 
	 	 	 	 	 
	 







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