Exhibit 10.12


 


PURCHASE AND SALE AGREEMENT


 


THIS PURCHASE AND SALE AGREEMENT (“Agreement”)
is made effective August 7, 2006
(the “Effective Date”) by and between MAUI LAND &
PINEAPPLE COMPANY, INC., a Hawaii corporation, whose address is
120 Kane St., Kahului, Hawaii 96732 (“Seller”) and DUNCAN
MACNAUGHTON, whose address is 1001 Bishop Street, Suite 1050,


Honolulu, HI 96813 (hereinafter referred to as “Buyer”).


 


For good and valuable consideration, the
receipt and sufficiency of which are acknowledged, Seller and Buyer agree as
follows:


 


1.                                       Property.
Subject to the terms and conditions set forth in this Agreement, Seller agrees
to sell to Buyer and Buyer agrees to buy from Seller the real properties identified
as the southern portion of Tax Map Key No. (2) 2-3-7:1,
consisting of approximately 89.203 acres, more or less, including access
to and from Lower Kula Road, located in Kula, Maui, Hawaii, as shown in Exhibit A,
together with all of Seller’s interest in any other appurtenant rights,
privileges, easements, licenses, permits, or rights of way appurtenant to such
real property (“Property”).


 


The Buyer and Seller understand and agree
that the Seller received in February 2006 a separate lot determination
from the County of Maui, recognizing seven (7) lots within the existing
Tax Map Key No. (2) 2-3-7:1, which includes the Property. However,
the lot configuration established by the County does not follow the original
Land Grant boundaries (which the Property is based upon) and therefore a
consolidation and resubdivision of a portion of said tax map parcel is required
in order to establish the Property as a separate parcel as shown on Exhibit A.


 


In accordance with Maui County Code Section 18.04.020(B) it
is expressly agreed that the sale of the Property pursuant to this Agreement
shall not close unless and until final subdivision approval is granted for the
consolidation and resubdivision described herein.


 


2.                                       Purchase
Price. The purchase price (“Purchase Price”) for the Property shall be THREE MILLION SIX HUNDRED FORTY-TWO THOUSAND THREE HUNDRED FIFTY AND
NO/100 UNITED STATES DOLLARS (US $3,642,350.00).


 


3.                                       Payment of
Purchase Price. Buyer shall pay the Purchase Price as follows:


 


a.                                       Upon full
execution of this Agreement, Buyer shall make a cash deposit of FIFTY THOUSAND U.S. DOLLARS (US $50,000.00) with Escrow
(defined below).


 


 


	
  Buyer

  	
   

  	
   

  	
   

  	
  Seller

  	
   

  	
   

  



 


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b.                                      The deposit
required under paragraphs 3(a) shall be held in Escrow in an interest-bearing
account and at Closing shall be applied to the Purchase Price. Upon the
expiration of the Due Diligence Period, these deposits shall become
non-refundable, unless Seller is in default. Accordingly, Buyer hereby
irrevocably instructs Escrow that, if the Due Diligence Period expires and
Buyer has not exercised its Due Diligence right to cancel, then if Buyer fails
to close in accordance with the terms of this Agreement for any reason (other
than a material breach of this Agreement by Seller), Escrow shall, upon written
demand from Seller, and without any requirement for further authorization or
approval from Buyer, disburse Buyer’s deposit to Seller. Seller and Buyer
acknowledge that this forfeiture of the deposits is intended and understood to
be compensation for the losses that Seller will incur if Buyer fails to close,
including without limitation lost opportunities to market the Property, and not
as a penalty, and further that the sum to be forfeited is a reasonable estimate
of the damages Seller will suffer if Buyer defaults.


 


c.                                       Buyer shall pay
the balance of the Purchase Price in cash at Closing.


 


d.                                      Buyer’s
obligations under this Agreement are not contingent on or subject to mortgage
financing.


 


4.                                       Due Diligence.


 


a.                                       Due Diligence
Period. From the date of execution of this Agreement until 5:00 p.m.
(HST) on the 60th day following the Effective
Date (the “Due Diligence Period”), Buyer, at Buyer’s expense, may review,
survey and investigate (a) the physical and environmental condition of the
Property, (b) the character, quality, and general utility of the Property,
(c) the zoning, land use, environmental and building requirements and
restrictions applicable to the Property, (d) the state of title to the
Property, and (e) any and all other documents and matters Buyer feels are
necessary to evaluate the Property and determine its acceptability to Buyer (“Due
Diligence”). The Seller shall make available to Buyer, for Buyer’s review and
use, copies of all maps, surveys, appraisals, reports or other investigative
studies conducted by Seller regarding the Property. Such information shall
include, but not be limited to, future anticipated farming activities upon the
Property and adjacent properties owned by the Seller, water supplies,
reservoirs and waterlines located on the Property and maintenance and repair of
such facilities, existing and future agreements with third parties regarding
the use and maintenance of the water supplies and facilities, anticipated
easements for access and utilities, available precipitation reports, any existing
leases issued to third parties for the use of the Property, and a history of
the farming of the Property and occupancy of the residential improvements
located thereon. Seller shall permit Buyer to inspect and, at Buyer’s expense,
copy the files provided by Seller pursuant to this section (excluding any
confidential or privileged materials).


 


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b.                                      Title Report.
No later than fifteen (15) days after the Effective
Date, Seller shall secure a current title report regarding the Property (the “Title
Report”) from Escrow, and provide a copy of it to Buyer. No later than five (5) days
following Seller’s delivery of the Title Report and copies of documents listed
in the Title Report to Buyer, Buyer shall notify Seller in writing of any
liens, restrictions or other encumbrances shown on the Title Report that are
objectionable. No later than ten (10) days following Buyer’s delivery of
such notification to Seller, Seller shall notify Buyer whether Seller agrees to
remove any such objectionable encumbrance from title prior to Closing. If
Seller does not agree to remove an encumbrance and Buyer nevertheless waives
the Due Diligence right to cancel this Agreement set forth below and proceeds
to close its purchase, Buyer’s objections to that encumbrance shall be deemed
waived. All liens, restrictions and other encumbrances shown on the Title
Report, excluding any that Seller agrees to remove, shall be called “Permitted
Encumbrances”.


 


c.                                       Allocation of
Future Subdivision Rights. Under the existing Agricultural Zoning
Ordinance, Maui County Code Section 19.30A.030.G, Tax Map Key No. (2) 2-3-7:1 has the potential to be subdivided into at
least thirty-six (36) developable lots. Four (4) potential agricultural
lots are intended to be allocated to the Property as follows:


2 lots of
2-acre minimum size


2 lots of 15-acre
minimum size


 


In the event that the total agricultural subdivision potential needs to
be adjusted due to unforeseen circumstances, the revised allocation shall be
set prior to the end of the Due Diligence period.


 


d.                                      Waterline and
Access Easements. Within thirty (30) days of the Effective Date, the Seller
shall make a good faith effort to provide a map to the Buyer which shall
identify all existing waterlines, reservoirs and access easements that exist on
the Property for the benefit of the Seller, the County of Maui, or any other
party, for the Buyer’s review. Provided that Buyer understands that it bears
the obligation to conduct his own due diligence investigation of the Property.


 


e.                                       Due Diligence
Cancellation Right. If during the Due Diligence Period, Buyer determines in
its sole discretion that the Property is not acceptable for any reason, Buyer
shall have the right before the expiration of the Due Diligence Period to
terminate this Agreement by giving written notice to Seller. Upon such
termination by Buyer, this Agreement shall terminate, Buyer’s deposits together
with any interest earned thereon, less any incurred escrow fees or expenses, shall
be refunded to Buyer, all documents/information about the Property obtained by
Buyer shall be delivered forthwith to Seller and the parties hereto shall be
released from all further obligations and liabilities hereunder, except that
Buyer shall restore any damage done to the Property as a result of its Due
Diligence inspections. If Buyer fails to exercise this right to cancel on or


 


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before such date and time, then Buyer shall be deemed to have waived
its right to cancel this Agreement. Buyer shall defend, indemnify, and hold
Seller harmless against any losses, damages, costs, and expenses including
reasonable attorney’s fees, arising from any entry on the Property by Buyer or
any of its agents, employees, contractors or representatives to conduct Due
Diligence.


 


5.                                       Escrow,
Closing, Prorations and Expenses.


 


a.                                       Escrow. The
transfer of the Property shall occur through Title
Guaranty Escrow Services, Kahului Branch, attention Lynn Sueda (“Escrow”).


 


b.                                      Closing Date.
Payment of the Purchase Price and recording of the Warranty Deed conveying the
Property to Buyer (“Closing”) shall occur 90 days
following the County of Maui’s issuance of final subdivision approval for the
consolidation and resubdivision described above, or on another date mutually
agreed upon by the parties. Provided, however, that Seller shall have the sole
right to extend Closing by up to an additional 120 days,
whereby Closing could occur up to 210 days beyond
the date of said final subdivision approval. Seller shall provide Buyer with at
least 30 days prior notice of any change in
the closing date.


 


c.                                       Seller’s
Closing Obligations. On or before Closing Date, Seller shall deliver the
following to Escrow:


 


(1)                                  Four (4) duplicate
original copies of a Warranty Deed in a form reasonably acceptable to
Buyer and Seller, duly executed and acknowledged by Seller, conveying to Buyer
Seller’s fee simple interest in the Property free and clear of any liens or
encumbrances, except the Permitted Encumbrances;


 


(2)                                  A State of Hawaii
conveyance tax certificate appropriately completed and executed by Seller;


 


(3)                                  Certifications in the
forms required by Section 1445(e) of the Internal Revenue Code
(FIRPTA), and Section 235-68 of the Hawaii Revised States, as amended
(HARPTA), duly executed by Seller;


 


(4)                                  Resolutions of Seller
authorizing the execution of this Agreement and the transaction contemplated
herein; and


 


(5)                                  Such funds as are
necessary to cover expenses which are to be paid by Seller under this Agreement.
Seller may, as an alternative to providing such funds, deposit with Escrow a
written authorization satisfactory to Escrow providing for the payment of such
expenses out of the sales proceeds due Seller.


 


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(6)                                  Seller shall have the
property surveyed by a surveyor licensed in the State of Hawaii, and provide a
map (with surveyor’s stamp) and accompanying report, showing the perimeter of
the Property and the location of any improvements within the vicinity of the
perimeter boundaries of the Property.


 


d.                                      Buyer’s
Closing Obligations. On or before the Closing Date, Buyer shall deliver to
Escrow such cash funds as are necessary to pay the balance of the Purchase
Price and to cover expenses which are to be paid by Buyer under this Agreement.


 


e.                                       Closing Costs.
Seller shall pay the following closing costs:  (a) costs of drafting the deed; (b) Seller’s
notary fees; (c) conveyance tax; (d) the recording fees for the deed;
(e) 50% of Escrow’s fees; (f) sixty percent (60%) of the premium for
the title insurance policy and (g) Seller’s attorney’s fees. Buyer shall
pay the following closing costs:  (a) forty
percent (40%) of the costs of the title insurance policy in the amount of the
Purchase Price; (b) Buyer’s notary fees; (c) 50% of Escrow’s fees; and
(d) Buyer’s attorney’s fees.


 


f.                                         Prorations.
All real property taxes shall be prorated between Seller and Buyer as of
the Closing Date. Other assessments, if any, shall be paid by Seller at
Closing.


 


6.                                       1031 Exchange.
Seller reserves the right to sell the Property in a tax-deferred exchange under
Section 1031 of the Internal Revenue Code (a “1031 Exchange”). Buyer
agrees to cooperate fully with Seller to effectuate Seller’s 1031 Exchange by,
among other things, (1) executing all necessary agreements, instruments,
addenda, assignments, escrow instructions, consents and other documents
necessary or convenient to implement the 1031 Exchange, and (2) entering
into an exchange agreement with a qualified intermediary which provides for the
1031 Exchange, provided that Buyer shall not be required to incur any
additional expenses or delay Closing due to the 1031 Exchange.


 


Buyer reserves the right to buy the Property in a tax-deferred exchange
under Section 1031 of the Internal Revenue Code (a “1031 Exchange”). Seller
agrees to cooperate fully with Buyer to effectuate Seller’s 1031 Exchange by,
among other things, (1) executing all necessary agreements, instruments,
addenda, assignments, escrow instructions, consents and other documents
necessary or convenient to implement the 1031 Exchange, and (2) entering
into an exchange agreement with a qualified intermediary which provides for the
1031 Exchange, provided that Seller shall not be required to incur any
additional expenses or delay Closing due to the 1031 Exchange.


 


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7.                                       General
Representations and Covenants.


 


a.                                       Seller’s
Representations. Seller hereby represents and warrants to Buyer, which
representations and warranties are true as of the date of this Agreement, will
be true as of the Closing Date and will survive the Closing:


 


(1)                                  The execution and
delivery of this Agreement and consummation of the transaction contemplated
hereby have been duly authorized by Seller. All the documents executed by
Seller which are to be delivered to Buyer at Closing will be:  duly authorized, executed, and delivered by
Seller; legal, valid, and binding obligations of Seller; sufficient to convey
good marketable fee simple title to the Property (if they purport to do so);
and not in violation of any mortgage, agreement or undertaking to which Seller
is a party or to which Seller is subject or by which Seller or the Property, may be
bound or affected.


 


(2)                                  Seller is duly
organized, existing and authorized to do business under the laws of the State
of Hawaii.


 


(3)                                  Seller is not a “foreign
person” within the meaning of Section 1445(f)(3) of the Internal
Revenue Code (the “Code”) and is not a “nonresident person” within the meaning
of §235-68(a) of the Hawaii Revised Statutes.


 


(4)                                  From the Effective
Date until Closing, any Agreement by Seller for the sale, use or occupancy of
the Property shall be subject to this Agreement and all rights of Buyer
hereunder.


 


b.                                      Seller’s
Covenants. Seller covenants and agrees as follows:


 


(1)                                  From the Effective
Date until Closing Date, Seller shall not enter into, modify, or amend any
agreement pertaining to and affecting the Property, without the prior written
consent of Buyer, which may be withheld in Buyer’s sole discretion. Provided
that Seller may enter into other agreements for the sale of the Property
to third parties, provided that such agreements shall be contingent upon the
termination of this Agreement.


 


(2)                                  From the Effective
Date until Closing Date, Seller shall not mortgage, pledge or grant or convey
any interest in the Property without the prior written consent of Buyer unless
such mortgage, pledge, grant or conveyance shall be released at Closing, which may be
withheld in Buyer’s sole discretion.


 


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c.                                       Buyer’s
Representations. Buyer hereby represents and warrants to Seller, which
representations and warranties are true as of the Effective Date, will be true
as of the Closing Date and will survive the Closing:


 


(1)                                  All the documents
executed by Buyer which are to be delivered to Seller at Closing will be:  duly authorized, executed, and delivered by
Buyer; legal, valid, and binding obligations of Buyer; and not in violation of
any mortgage, agreement or undertaking to which Buyer is a party or to which
Buyer is subject or by which Buyer may be bound or affected.


 


(2)                                  Buyer has not filed
or been the subject of any filing of a petition under the Federal Bankruptcy
Law or any federal or state insolvency laws or laws for composition of
indebtedness or for the reorganization of debtors.


 


8.                                       Leaseback of
Pineapple Fields. The Buyer shall lease to Seller the currently existing
pineapple fields located on a portion of the Property pursuant to the terms set
forth in the lease agreement (which include a lease term through August 30, 2007) attached hereto as Exhibit B.
Said lease to be executed by the parties prior to or concurrently with Closing.


 


9.                                       Seller’s
Agricultural Reservation Regarding the Property. The deed conveying the
Property shall contain the following reservation:


 


(a)                                  The
Grantee acknowledges that the Property is adjacent to, nearby or in the
vicinity of lands which were, are, or will in the future be actively used for
the growing, harvesting and processing of pineapple and all other agricultural
activities permitted by applicable land use and zoning laws (such activities
being herein collectively called the “Agricultural Activities”). Grantee also
acknowledges that Agricultural Activities may from time to time bring upon
the Property or result in noise, odors, dust, smoke, fumes, vibrations,
shock waves, heat, traffic, traffic noise, pesticides, herbicide and other
agricultural chemicals, particulates, similar substances and nuisances and
other impacts of normal and accepted agricultural practices and operations
(collectively, the “Agricultural By-Products”).


 


(b)                                 Grantee
acknowledges that the Property was formerly used for the cultivation of
pineapple and other Agricultural Activities and that Agricultural By-Products
of such Activities may remain on the Property and in its soils. Construction,
Agricultural Activities, and other activities on the Property may thus
result in exposure to Agricultural By-Products present on the Property.


 


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(c)                                  The
Grantor reserves, for itself and for its successors and assigns the perpetual
right and easement over, above and upon the Property to discharge, emit,
transmit, diffuse and/or inflict Agricultural By-Products.


 


(d)                                 The
Grantee hereby assumes complete risk of and forever releases the Grantor, its
successors and assigns from all claims for nuisances affecting the
Property and from all claims for injury or damages (including, but not limited
to, consequential damages, general damages, damages for emotional distress or
mental anguish, statutory damages, special damages, exemplary and punitive
damages) arising from past, present or future Agricultural Activities or from
Agricultural By-Products that currently or in the future affect the Property. Without
limiting the generality of the foregoing, the Grantee hereby, with full
knowledge of its rights, forever: (i) waives any right to require the
Grantor, its successors or assigns, and releases the Grantor, its successors
and assigns from any obligation to take any action to correct, remediate,
modify, alter, eliminate, abate or clean-up any Agricultural Activities or
Agricultural By-Products, and (ii) waives any right to file any suit or
claim against the Grantor, its successors or assigns for injunction or abatement
of nuisances arising from Agricultural Activities or Agricultural By-Products.


 


(e)                                  The
Grantee shall indemnify, defend and hold harmless the Grantor to the fullest
extent allowed by law from and against all claims, demands, actions, losses,
damages, liabilities, costs and expenses, including, without limitation,
attorneys’ fees, asserted against or incurred by the Grantor, which arise out
of any injury, death or damage to person, property or business that occurs on
the Property and is the result of any Agricultural Activities or Agricultural
By-Products, irrespective of the theory of liability asserted against the
Grantor; provided, however, this indemnification shall not apply to claims,
demands, actions, losses, damages, liabilities, costs and expenses caused by
the proven (and not merely alleged) willful misconduct of the Grantor, but
unless the Grantor’s willful misconduct shall be established by a final,
nonappealable judgment of a court of competent jurisdiction, the Grantor shall
be entitled to the full benefits of this indemnification, including the right
to reimbursement for all costs and expenses, including attorneys’ fees,
incurred in the defense of any claims or demands asserted by any party against
the Grantor.


 


(f)                                    Any
Agricultural Activities or Agricultural By-Products, and any claim, demand,
action, loss, damage, liability, cost or expense arising therefrom, shall not
constitute a breach of


 


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any covenant or warranty of the Grantor under
this deed or any other agreement between Grantor and Grantee or otherwise be
the basis for a suit or other claim, including without limitation a claim for
injunction or abatement of nuisances, and the Grantee hereby forever waives any
right to file any such suit or claim.


 


(g)                                 As
used in this section regarding Agricultural Activities, all references to
the “Grantor” shall mean and include the Grantor and Maui Land &
Pineapple Company, Inc., Maui Pineapple Company, Ltd., and all subsidiary,
sister and other affiliated companies of the Grantor, and all successors and
assigns of the Grantor and its parent, subsidiary, sister and affiliated
companies.


 


10.                                 Water Service; Waterlines.
A County of Maui Department of Water Supply water meter shall be transferred to
the Buyer by the Seller at the Closing. Seller believes that the meter is a one-inch
meter, but makes no representations or warranties as to the size. The meter is
not located on the Property. Buyer will bear all expenses to construct
waterlines from the meter to the Property. In the alternative, Buyer may seek
to have the meter relocated to the Property at his sole cost. Seller will
cooperate with Buyer’s efforts to relocate the meter, provided that Seller
shall liable for any expenses related to such relocation. If the waterline must
cross over other land owned by Seller, outside the Property, Seller shall grant
an appropriate waterline easement to Buyer.


 


There may be existing private waterlines
that cross through the Property, the locations of which shall be described
during the Due Diligence Period, and for which easements shall be granted to
the benefiting parties, provided, however, all easements benefiting the farming
activities of the Seller shall terminate if and when Maui Pineapple Company
ceases to cultivate crops in the fields currently served or otherwise benefited
by said waterline easements. Seller shall survey and reserve waterline easements
for the benefit of its other lands, prior to Closing.


 


11.                                 “AS IS” Sale. Notwithstanding
any other provision of this Agreement, Buyer acknowledges that except as
specifically represented and warranted by Seller in this Agreement:


 


(a)                                  Seller makes no
warranties or disclosures regarding the property, and any and all information
supplied or made available by Seller, whether written or oral, prepared by
Seller or other party, and whether in the form of maps, surveys, plats,
reports, studies or plans, or any other type of materials or information,
whatsoever, is furnished to Buyer solely as a courtesy and is without
representation or warranty on the part of Seller, express or implied; and


 


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(b)                                 Buyer is purchasing
the Property on a strictly “AS IS, WHERE IS, WITH ALL
FAULTS” basis. Buyer further acknowledges that no representation,
written or oral, has been made by Seller, its officers, agents or employees in
order to induce Buyer to enter into this Agreement. Buyer represents and
warrants that neither Seller nor its officers, agents or employees has made any
representation or statement to Buyer concerning the condition, development
potential, merchantability, fitness for a particular purpose, operation, resale
or investment potential of the Property, nor has Seller or its officers, agents
or employees rendered any advice or expressed any opinion to Buyer regarding
any tax consequences of ownership of the Property, and Buyer expressly waives
any duty by Seller to make any such disclosures or render such opinions. Buyer
represents and warrants that as of the Closing Date, Buyer will be familiar
with the Property and will have made such independent investigation as Buyer
deems necessary or appropriate in order for Buyer to have determined to acquire
the Property.


 


12.                                 Additional
Conditions Precedent to Closing.


 


a.                                       Buyer’s Conditions
Precedent to Closing. The obligations of Buyer hereunder are subject to
satisfaction of all the conditions set forth in this section. Buyer may waive
any or all of such conditions in whole or in part but any such waiver
shall be effective only if made in writing:


 


(1)                                  All of Seller’s
representations and warranties shall be true and correct in all material
respects as if made on and as of the Closing Date;


 


(2)                                  Seller shall not be
in default in the performance of any material covenant to be performed by
Seller under this Agreement;


 


(3)                                  Escrow shall have
provided Buyer a commitment to issue to Buyer an Owner’s Policy of Title
Insurance, Form B-1970 or equivalent, with such endorsements as Buyer may request
(the “Title Policy”) insuring fee simple to the Property, subject to:  (a) the Permitted Encumbrances, and (b) the
standard terms, conditions, exclusions and exceptions contained in the Title
Policy that have not been deleted by the extended coverage form or
endorsement;


 


(4)                                  There has been no material
damage or adverse developments to the condition of the Property since the
expiration of the Due Diligence Period; and


 


(5)                                  There shall be no
legal action or governmental action pending or threatened against the Property
since the expiration of the Due Diligence Period.


 


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b.                                      Seller’s
Conditions Precedent. The obligations of Seller hereunder are subject to
satisfaction of all the conditions set forth in this section. Seller may waive
any or all of such conditions in whole or in part but any such waiver
shall be effective only if made in writing:


 


(1)                                  All of Buyer’s
representations and warranties shall be true and correct in all material
respects as if made on and as of the Closing Date; and


 


(2)                                  Buyer shall not be in
default in the performance of any material covenant or duty to be performed by
Buyer under this Agreement.


 


13.                                 [Reserved].


 


14.                                 Assignment. This
Agreement may not be assigned by Buyer without the prior written consent
of Seller, which may be withheld or conditioned in Seller’s sole
discretion. Notwithstanding the foregoing, Buyer shall have the right at
closing to have the Property conveyed to a legal entity that is a subsidiary or
affiliate of Buyer, provided that Buyer shall remain fully obligated under this
Agreement.


 


15.                                 Default; Remedies;
Attorneys’ Fees & Costs. Except as otherwise provided in this
Agreement, in the event that a party shall fail to perform its obligations
under this Agreement, the other party may: 
(a) bring an action for damages for breach of contract; (b) file
and maintain a suit for specific performance of this Agreement; or (c) pursue
any other legal remedy as shall be allowed at law or in equity. If any party
hereto shall ever be in default or breach with respect to this Agreement, and
the other party shall incur expenses, fees and costs or employ legal counsel to
make any demand or otherwise to protect or enforce its rights herein, the party
in default or breach shall pay all such costs and expenses incurred by the other
party, including court costs and reasonable attorneys’ fees.


 


16.                                 Indemnity.


 


a.                                       Indemnity
from Seller. Seller shall hold harmless, indemnify and defend Buyer, its
successors and assigns and their respective partners, joint venturers, members,
agents, employees, officers, and directors, and the Property from and against
any and all obligations, liabilities, claims, liens, encumbrances, demands,
losses, damages, causes of action judgments, costs and expenses (including,
without limitation, attorney’s fees and expenses), whether direct, contingent,
or consequential and no matter how arising (“Losses and Liabilities”) in any
way resulting from any material breach of any representations and warranties or
covenants by Seller in this Agreement.


 


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b.                                      Indemnity from
Buyer. Buyer shall hold harmless, indemnify and defend Seller, its
successors and assigns and their respective agents, employees, officers and
partners, from and against any and all Losses and Liabilities in any way
resulting from any material breach of any representations and warranties or
covenants of Buyer in this Agreement.


 


17.                                 Brokerage;
Commission. No brokers are involved in this transaction. In the event of
any claim, for a broker’s fee, finder’s fee, commission or other similar
compensation in connection with this transaction arising out of any claim by
reason of services alleged to have been rendered to, or at the request of
either party, such party agrees to indemnify, defend, protect and hold the
other party harmless against any and all liability, loss, cost, damage or
expense (including reasonable attorneys’ fees and costs) which the other party may sustain
or incur by reason of such claim. The provisions of this Section shall
survive the termination of this Agreement or the Closing.


 


18.                                 Miscellaneous.


 


a.                                       Entire
Agreement. This Agreement is the entire agreement between the parties and
shall not be modified except by an instrument in writing signed by all of the
parties. This Agreement supersedes any and all other understandings or
agreements, whether written or oral, between Seller and Buyer concerning the
sale and purchase of the Property.


 


b.                                      No Waiver;
Time of the Essence. No failure by either party to insist upon strict
performance by the other party of any of the terms and provisions of this
Agreement shall constitute or be deemed to be a waiver of any such term or
provision, or constitute an amendment or waiver of any such term or provision
by course of performance. Time is of the essence with respect to the
obligations under this Agreement.


 


c.                                       Notices. Any
notice given by either party pursuant to this Agreement shall be valid if in
writing and personally delivered, sent by facsimile transmission, or if sent by
registered or certified mail, return receipt requested, postage prepaid, to the
last known address of the other party. Such notice shall be effective upon such
personal delivery, completion of facsimile transmission with confirmation of
successful transmission, or two (2) days after such mailing. Either party
may, at any time and from time to time, in the manner set forth for the giving
of notices, give notice to the other party hereunder of any change of address,
and such address shall be sufficient as the last known address of the party
hereunder. The following addresses, telephone numbers and facsimile numbers
shall be used until notice to the contrary:


 


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  To Seller at:

  	
  Maui Land & Pineapple Company, Inc.

  
	
   

  	
  Attention: Randall H. Endo

  
	
   

  	
  120 Kane Street

  
	
   

  	
  Kahului, HI 96732

  
	
   

  	
  Phone: (808) 877-3874

  
	
   

  	
  Fax: (808) 871-4375

  
	
   

  	
  Email: rendo@mlpmaui.com

  



 


	
  To Buyer at:

  	
  DUNCAN MACNAUGHTON

  
	
   

  	
  1001 Bishop Street, Suite 1050

  
	
   

  	
  Honolulu, HI 96813

  
	
   

  	
  Phone: (808) 545-7722

  
	
   

  	
  Fax: (808) 545-7725

  



 


d.                                      Headings. All
headings used in this Agreement are for reference convenience only and are not
to be construed as limiting in any manner the content of any Section, paragraph
or particular provision.


 


e.                                       Applicable
Law. This Agreement is governed by and shall be construed in accordance
with the laws of the State of Hawaii.


 


f.                                         Severability.
If any provisions of this Agreement is held invalid, illegal or unenforceable
in any respect, the invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision hereof.


 


g.                                      Binding Effect.
This Agreement shall be binding upon and shall inure to the benefit of the
parties herein named and their respective successors and permitted assigns.


 


h.                                      Multiple
Buyers. In the event that more than one buyer has entered into this
Agreement, then all such buyers shall be jointly and severally bound by the
terms of this Agreement.


 


i.                                          Counterparts.
This Agreement may be executed in counterparts and transmitted by fax or
email. Each counterpart shall, irrespective of the date of its execution
and delivery, be deemed an original, and the counterparts together shall
constitute one and the same instrument.


 


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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first set forth above.


 


MAUI LAND & PINEAPPLE COMPANY, INC.


 


	
  By 

  	
   

  	
  /S/ ROBERT I. WEBBER

  	
   

  
	
   

  	
  Its  Senior
  Vice President & Chief Financial Officer

  
	
   

  
	
   

  
	
  By 

  	
   

  	
  /S/ RANDALL H. ENDO

  	
   

  
	
   

  	
  Its  Vice
  President/ Community Development

  
	
   

  
	
   

  	
  “Seller”

  	
   

  
	
   

  
	
   

  
	
   

  	
  /S/ Duncan MacNaughton

  	
   

  
	
  DUNCAN MACNAUGHTON

  
	
   

  
	
   

  	
  “Buyer”

  	
   

  
										



 


Attachments:


Exhibit A – Property Description


Exhibit B – Leaseback of pineapple fields


 


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