AGREEMENT,
EXECUTED BY PURCHASER.
(X)
THE GOLF COURSE USE AGREEMENT, EXECUTED BY
PURCHASER AND THE RITZ-CARLTON HOTEL COMPANY, L.L.C.
(3)
SELLER SHALL CAUSE THE STATUS OF TITLE TO
THE LEASE TRACT AND IMPROVEMENTS TO BE SUFFICIENT FOR PURCHASER TO OBTAIN, AT
ITS SOLE COST AND EXPENSE IF IT DETERMINES TO SO OBTAIN, AN ALTA OWNER POLICY OF
TITLE INSURANCE (THE "OWNER POLICY") INSURING THAT PURCHASER IS THE OWNER OF THE
LEASE TRACT AND IMPROVEMENTS, SUBJECT ONLY TO THE PERMITTED ENCUMBRANCES AND THE
STANDARD PRINTED EXCEPTIONS, THE EXCEPTION FOR TAXES LIMITED TO THE YEAR IN
WHICH THE CLOSING OCCURS AND SUBSEQUENT YEARS, AND CONTAINING SUCH ENDORSEMENTS
THERETO AS PURCHASER MAY REQUIRE.
(4)
TITLE COMPANY SHALL APPLY THE EARNEST MONEY
TO THE CLOSING PAYMENT.
(C)
ADJUSTMENTS SHALL BE MADE TO THE CLOSING
PAYMENT WHEREBY (1) SELLER RECEIVES THE BENEFIT OF ALL ACCRUED AND UNPAID
PERCENTAGE RENT (AS DEFINED UNDER THE 2001 LEASE) CALCULATED ON GROSS REVENUE
(AS DEFINED UNDER THE 2001 LEASE) THROUGH THE CLOSING DATE AND (2) PURCHASER
RECEIVES THE BENEFIT OF PREPAID RENT AND OTHER OBLIGATIONS FOR WHICH PURCHASER
IS TO RECEIVE A CREDIT PURSUANT TO SECTION 2 HEREOF.
PURCHASER AND SELLER
ACKNOWLEDGE AND AGREE THAT THE COMPANY SHALL BE RESPONSIBLE FOR THE PAYMENT OF
ITS ATTORNEY FEES, ALL TITLE EXAMINATION FEES, TITLE INSURANCE PREMIUMS, TITLE
COMPANY ESCROW FEES, RECORDING COSTS OF THE DEED AND ANY OTHER RECORDED
DOCUMENTS, CONVEYANCE TAXES, IF ANY, SALES TAXES, IF ANY, AND SURVEY COSTS IN
CONNECTION WITH PURCHASER'S ACQUISITION OF THE PROPERTY.
SELLER SHALL BE
RESPONSIBLE FOR THE PAYMENT OF ITS ATTORNEYS' FEES.
IN ADDITION, ALL NORMAL AND
CUSTOMARILY PRORATABLE ITEMS INCLUDING, WITHOUT LIMITATION, REAL PROPERTY TAXES,
SHALL BE PRORATED AS OF 12:01 A.M., HAWAII TIME, ON THE CLOSING DATE.
IF THE
ACTUAL AMOUNTS TO BE PRORATED ARE NOT KNOWN ON THE CLOSING DATE, THEN THE
PRORATIONS SHALL BE MADE ON THE BASIS OF THE BEST EVIDENCE THEN AVAILABLE, AND
THEREAFTER, WHEN ACTUAL FIGURES ARE RECEIVED, A CASH SETTLEMENT WILL BE MADE
BETWEEN SELLER AND PURCHASER WITH THE RESULT THAT SELLER SHALL PAY FOR AND
RECEIVE THE BENEFIT OF THOSE ITEMS ATTRIBUTABLE TO THE PERIOD OF TIME PRIOR TO
THE CLOSING DATE AND PURCHASER SHALL PAY FOR AND RECEIVE THE BENEFIT OF THOSE
ITEMS ATTRIBUTABLE TO THE PERIOD OF TIME BEGINNING WITH THE CLOSING DATE.
(D)
UPON COMPLETION OF THE CLOSING, SELLER SHALL
DELIVER TO PURCHASER POSSESSION OF THE PROPERTY FREE AND CLEAR OF ALL TENANCIES
OF EVERY KIND AND PARTIES IN POSSESSION, EXCEPT FOR THE PERMITTED ENCUMBRANCES.
(E)
THE PROVISIONS OF THIS SECTION SHALL
SURVIVE THE CLOSING.
SECTION 9.
INDEMNITIES.
(A)
SELLER HEREBY AGREES TO DEFEND, INDEMNIFY
AND HOLD HARMLESS PURCHASER AND THE COMPANY, AND THEIR RESPECTIVE MEMBERS,
PARTNERS, OFFICERS, DIRECTORS AND VENTURERS, FROM AND AGAINST ANY CLAIM, DEBT,
LOSS, COST, AWARD, JUDGMENT, LIABILITY, CHARGE AND/OR EXPENSE (INCLUDING
REASONABLE ATTORNEYS' FEES AND EXPENSES) ARISING FROM OR RESULTING FROM SELLER'S
OWNERSHIP OF THE PROPERTY (OTHER THAN THOSE RESULTING FROM A BREACH OF
PURCHASER'S OBLIGATIONS UNDER THE 2001 LEASE OR THE WILLFUL MISCONDUCT OR GROSS