COUNTERPARTS AND
BY DIFFERENT PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO
EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL
CONSTITUTE ONE AND THE SAME AGREEMENT. DELIVERY OF AN EXECUTED COUNTERPART OF A
SIGNATURE PAGE OF THIS AGREEMENT BY FACSIMILE OR ELECTRONIC TRANSMISSION OF A
PDF FILE SHALL BE EFFECTIVE DELIVERY OF A MANUALLY EXECUTED COUNTERPART OF THIS
AGREEMENT.
8.2
THE BORROWER, THE AGENT AND EACH ASSIGNOR WILL, DO, EXECUTE,
ACKNOWLEDGE AND DELIVER ALL AND EVERY SUCH FURTHER ACTS, DEEDS, CONVEYANCES,
ASSIGNMENTS, NOTICES OF ASSIGNMENTS, TRANSFERS AND ASSURANCES AS ANY ASSIGNEE
SHALL, FROM TIME TO TIME, REASONABLY REQUIRE, FOR THE BETTER ASSURING,
CONVEYING, ASSIGNING, TRANSFERRING AND CONFIRMING UNTO SUCH ASSIGNEE THE
PROPERTY AND RIGHTS HEREBY GIVEN, GRANTED, BARGAINED, SOLD, CONVEYED, AND/OR
ASSIGNED. EACH ASSIGNOR AND EACH ASSIGNEE WILL, DO, EXECUTE, ACKNOWLEDGE AND
DELIVER ALL AND EVERY SUCH FURTHER ACTS AS AND REASONABLY REQUIRED FOR CARRYING
OUT THE INTENTION OR FACILITATING THE PERFORMANCE OF THE TERMS OF THIS
AGREEMENT.
8.3
THIS AGREEMENT SHALL CONSTITUTE A "LOAN DOCUMENT" FOR PURPOSE OF
THE LOAN DOCUMENTS.
8.4
THE BORROWER, THE AGENT, EACH ASSIGNOR AND EACH ASSIGNEE WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THE LOAN DOCUMENTS
AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
8.5
THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, WHICH
STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
UNDERLYING TRANSACTION EMBODIED HEREBY. IN ALL RESPECTS, INCLUDING, WITHOUT
LIMITATION,
5
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE AND APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO
THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION
GOVERNS THIS AGREEMENT, AND THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS
OF LAW PROVISIONS THEREOF.
8.6
TO THE GREATEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES
ANY AND ALL RIGHTS TO REQUIRE MARSHALLING OF ASSETS BY THE AGENT. WITH RESPECT
TO ANY SUIT, ACTION OR PROCEEDINGS RELATING TO THIS AGREEMENT (EACH, A
"PROCEEDING"), BORROWER IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE CIRCUIT COURT OF THE SECOND CIRCUIT, STATE OF HAWAII, THE
FEDERAL DISTRICT COURT FOR THE DISTRICT OF HAWAII, OR ANY FEDERAL OR STATE COURT
SITTING IN NEW YORK COUNTY, NEW YORK, AND (B) WAIVES ANY OBJECTION WHICH IT
MAY HAVE AT ANY TIME