(III) UPON THE REQUEST OF PURCHASER, CAUSING THE APPROPRIATE
EXECUTIVE OF SELLER (TO BE DETERMINED BY CONSULTATION BETWEEN SELLER AND
PURCHASER, AND TAKING INTO ACCOUNT THE NATURE AND MAGNITUDE OF THE REQUESTED
SERVICES), TO PROMOTE AND PROVIDE WRITTEN AND/OR VERBAL INDICATIONS OF SUPPORT
OF THE CONDOTEL CONVERSION ENTITLEMENTS AND DEVELOPMENT TO APPLICABLE
GOVERNMENTAL AGENCIES, DIVISIONS AND BOARDS AND PUBLIC UTILITY COMPANIES
INCLUDING, WITHOUT LIMITATION, THE MAUI COUNTY DEPARTMENT OF PLANNING, THE MAUI
PLANNING COMMISSION, THE MAUI COUNTY DEPARTMENT OF PUBLIC WORKS AND
ENVIRONMENTAL MANAGEMENT (AND SAID DEPARTMENT'S LAND USE AND CODE DIVISION AND
DEVELOPMENT SERVICES ADMINISTRATION), THE MAUI COUNTY DEPARTMENT OF WATER
SUPPLY, KAPALUA WATER COMPANY, LTD., KAPALUA WASTE TREATMENT COMPANY, LTD., THE
MAUI COUNTY COUNCIL, ANY APPEALS BOARDS, ANY SUCCESSORS TO SUCH BODIES, AND
STAFF OF EACH OF THE FOREGOING, UPON RECEIPT BY SELLER OF THE WRITTEN REQUEST OF
PURCHASER TO DO SO, WHICH REQUEST SHALL SPECIFICALLY IDENTIFY THE PARTIES TO
WHOM SUCH COMMUNICATION SHOULD BE DIRECTED, AND (IV) PROMOTING ISSUANCE OF THE
CONDOTEL CONVERSION ENTITLEMENTS AND THE DEVELOPMENT TO, AND EXPRESSING SUPPORT
TO, THE KAPALUA RESORT ASSOCIATION, AND SEEKING THEIR SUPPORT OF THE ISSUANCE OF
THE CONDOTEL CONVERSION ENTITLEMENTS AND THE DEVELOPMENT.
ALL WRITTEN LETTERS
OF SUPPORT SHALL BE SUBMITTED TO PURCHASER FOR ITS APPROVAL IN WRITING PRIOR TO
DISSEMINATION.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, SELLER SHALL
HAVE NO AUTHORITY TO BIND PURCHASER IN CONNECTION WITH ANY MATTER RELATING TO
THE CONDOTEL CONVERSION ENTITLEMENTS OR DEVELOPMENT, OR TO PURPORT TO BE
AUTHORIZED TO DO SO.
ALL CONDOTEL CONVERSION ENTITLEMENTS AND SIMILAR ITEMS
SHALL BE MADE AND ISSUED ONLY IN THE NAME OF PURCHASER.
4
(D)
ADDITIONAL ACTIONS.
IN ADDITION TO THE
ACTIONS DESCRIBED IN PARAGRAPHS (A) AND (C) ABOVE, SELLER AGREES THAT IT WILL,
UPON THE WRITTEN REQUEST OF PURCHASER, SUPPORT AND PROMOTE, AND PROVIDE GENERAL
WRITTEN AND/OR VERBAL INDICATIONS OF SUPPORT AND PROMOTION OF, THE CONDOTEL
CONVERSION ENTITLEMENTS AND DEVELOPMENT WITH NEIGHBORING LANDOWNERS, COMMUNITY
GROUPS, LOCAL ORGANIZATIONS, AND OTHER INFLUENTIAL GROUPS.
(E)
OWNER'S POLICY.
IF AND TO THE EXTENT
PURCHASER MAINTAINS SUCH A POLICY, SELLER SHALL RECEIVE OWNER'S POLICY AND
CORPORATE RATE TREATMENT AT THE HOTEL ON THE SAME TERMS AND CONDITIONS AS
PURCHASER AND ITS AFFILIATES.
(F)
SPA.
PURCHASER WILL CONSIDER ENTERING
INTO A MEMBERSHIP AND USAGE AGREEMENT WITH SELLER FOR THE KAPALUA BAY SPA,
WHETHER OR NOT PURCHASER PROCEEDS WITH A SPA EXPANSION TO THE PROPERTY.
SELLER
AGREES THAT IT WILL NOT OPPOSE THE EXPANSION TO THE SPA AT PURCHASER'S PROPERTY
SO LONG AS THE SAME IS DONE SUBSTANTIALLY IN COMPLIANCE WITH THE PLANS PROPOSED
THEREFOR BY SB ARCHITECTS AND DELIVERED TO SELLER ON DECEMBER 7, 2006 VIA THE
SMA MAJOR SUBMITTAL TO THE COUNTY OF MAUI.
(G)
SURVIVAL.
THE PROVISIONS OF THIS SECTION
SHALL SURVIVE THE CLOSING.
SECTION 5.
SELLER'S REPRESENTATIONS,
WARRANTIES AND COVENANTS.
(A)
SELLER HEREBY REPRESENTS AND WARRANTS TO,
AND COVENANTS WITH, PURCHASER AND THE COMPANY THAT:
(1)
THIS AGREEMENT, WHEN EXECUTED AND DELIVERED
BY SELLER AND PURCHASER, WILL CONSTITUTE THE VALID AND BINDING AGREEMENT OF
SELLER, ENFORCEABLE AGAINST SELLER