BE REQUIRED TO INCUR ANY EXPENSE, INCLUDING
ATTORNEYS' FEES, OR LIABILITY WHATSOEVER IN CONNECTION WITH ANY SUCH EXCHANGES,
INCLUDING, WITHOUT LIMITATION, ANY OBLIGATION FOR THE PAYMENT OF ANY ESCROW,
TITLE, BROKERAGE, OR OTHER COSTS INCURRED WITH RESPECT TO THE EXCHANGE, (III) NO
SUBSTITUTION OF THE EFFECTUATING PARTY SHALL RELEASE THAT PARTY FROM ANY OF THE
OBLIGATIONS, WARRANTIES, OR REPRESENTATIONS SET FORTH IN THIS AGREEMENT OR FROM
LIABILITY FOR ANY PRIOR OR SUBSEQUENT DEFAULT UNDER THIS AGREEMENT BY THE
EFFECTUATING PARTY, ITS SUCCESSORS, OR ASSIGNS, WHICH OBLIGATIONS SHALL CONTINUE
AS THE OBLIGATIONS OF A PRINCIPAL AND NOT OF A SURETY OR GUARANTOR, (IV) THE
EFFECTUATING PARTY SHALL GIVE THE COOPERATING PARTY AT LEAST FIVE (5) BUSINESS
DAYS PRIOR NOTICE OF THE PROPOSED CHANGES REQUIRED TO EFFECT SUCH EXCHANGE AND
THE IDENTITY OF ANY PARTY TO BE SUBSTITUTED IN THE ESCROW, (V) THE EFFECTUATING
PARTY SHALL BE RESPONSIBLE FOR PREPARING ALL ADDITIONAL AGREEMENTS, DOCUMENTS,
AND ESCROW INSTRUCTIONS (COLLECTIVELY, THE "EXCHANGE DOCUMENTS") REQUIRED BY ANY
SUCH EXCHANGE, AT ITS SOLE COST AND EXPENSE, AND (VI) THE EFFECTUATING PARTY
SHALL BE RESPONSIBLE FOR MAKING ALL DETERMINATIONS AS TO THE LEGAL SUFFICIENCY,
TAX CONSIDERATIONS, AND OTHER CONSIDERATIONS RELATING TO THE PROPOSED EXCHANGE,
THE EXCHANGE DOCUMENTS, AND THE TRANSACTIONS CONTEMPLATED THEREBY, AND THE
COOPERATING PARTY SHALL IN NO EVENT BE RESPONSIBLE FOR, OR IN ANY WAY BE DEEMED
TO WARRANT OR REPRESENT ANY TAX OR OTHER CONSEQUENCES OF THE EXCHANGE
TRANSACTION ARISING BY REASON OF THE COOPERATING PARTY'S PERFORMANCE OF THE ACTS
REQUIRED HEREBY.
SECTION 17.
MODIFICATION.
NO MODIFICATION
HEREOF OR SUBSEQUENT AGREEMENT RELATIVE TO THE SUBJECT MATTER HEREOF SHALL BE
BINDING ON EITHER PARTY UNLESS REDUCED TO WRITING AND SIGNED BY THE PARTY TO BE
BOUND.
SECTION 18.
EXHIBITS.
ALL EXHIBITS ARE
FULLY INCORPORATED HEREIN BY THIS REFERENCE FOR ALL PURPOSES.
SECTION 19.
ATTORNEY'S FEES.
EACH PARTY
SHALL PAY ITS OWN ATTORNEY'S FEES IN CONNECTION WITH THE PREPARATION, REVIEW AND
NEGOTIATION OF THIS AGREEMENT, THE PREPARATION, REVIEW AND NEGOTIATION OF ALL
CLOSING DOCUMENTS AND THE ADMINISTRATION OF THE CLOSING.
IF ANY PARTY DEFAULTS
IN ITS OBLIGATIONS HEREUNDER, THE DEFAULTING PARTY SHALL PAY THE REASONABLE
ATTORNEY'S FEES AND COURT COSTS INCURRED BY THE OTHER PARTY IN ORDER TO ENFORCE
ITS RIGHTS HEREUNDER.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING.
SECTION 20.
GOVERNING LAW.
THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
HAWAII.
SECTION 21.
TIME OF ESSENCE.
TIME IS OF
THE ESSENCE UNDER THIS AGREEMENT.
SECTION 22.
WAIVER.
NO WAIVER OF ANY
DEFAULT OF OR NONCOMPLIANCE WITH ANY PROVISION, COVENANT, CONDITION, OBLIGATION
OR REQUIREMENT IMPOSED HEREBY WHICH MAY BE GIVEN OR SUFFERED BY ONE PARTY TO THE
OTHER SHALL OPERATE AS, OR BE CONSTRUED TO CONSTITUTE, A WAIVER OF ANY
SUBSEQUENT DEFAULT OF OR NONCOMPLIANCE WITH ANY SUCH PROVISION, COVENANT,
CONDITION, OBLIGATION OR REQUIREMENT OR OF ANY DEFAULT OF OR ANY NONCOMPLIANCE
WITH ANY PROVISION, COVENANT, CONDITION, OBLIGATION OR REQUIREMENT HEREOF.
SECTION 23.
MISCELLANEOUS.
THIS AGREEMENT
MAY BE EXECUTED IN ANY NUMBER OF IDENTICAL COUNTERPARTS.