|
201200290
<br />DEED OF TRUST
<br />Loan No: 5863616932 (Continued) Page 10
<br />any amendment to any of such pleadings. A°Dispute" shall include any dispute, claim or conVoversy of any kind,
<br />whether in contract or in tort, legal or equitable, now existlng or hereafter arising, relating in any way to any aspact of
<br />this agreement, or any related agreement incorporatlng this ArbiUation Program (the "Documents"), or any renewal,
<br />extension, modiflcation or reflnancing of any indebtedness or obligatlon relating thereto, including without Iimitation,
<br />thei� negotlaUon, executlon, collateralizatlon, administration, repayment, modiflcaUon, ex[ension, substitution,
<br />fortnation, inducement, enforcement, default or terminaUon. DISPUTES SUBMITTED TO ARBITRATION ARE NOT
<br />RESOLVED IN COURT BY A JUDGE OR JURY. TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE PARTIES
<br />1RREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
<br />i4NY DISPUTE ARBITRATED PURSUANT TO THIS ARBITRATION PROGRAM.
<br />A. Govem�pg Rules. Any arbitraUon proceeding will (i) be govemed by the Federal ArbitraUon Act (Title 9 of the United
<br />States Code), notwithstanding any conflicting choice of law provision tn any of the documents between the parties; and
<br />(ii) be conducted by the American Arbitration Association ("AAA"), or such other administrator as the parties shall
<br />mutually agree upon, in accordance with the AAA's commercial dispute resolution procedures, unless the claim or
<br />counterclaim is at least $1,000,000.00 exclusive of claimed interest, arbftratlon fees and costs, in wh(ch case the
<br />arbitration shall be conducted in accordance with the AAA's opUonal procedures for large, complex commercial
<br />disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial
<br />disputes are referred to herein, as applicable, as the °Rules"). If there is any inconsistency between the terms hereoi
<br />and the Rules, the terms and procedures set focth herein shall control. Arbitration proceedings hereunder shall be
<br />conducted at a locatlon mutually agreeable to the parties, or if they cannot agree, then at a location selected by the
<br />AAA in the state of the applicable substantive law prfma�ily goveming the Note. Any party who fails or refuses to
<br />submit to arbitration following a demand by any other party shall bear all costs and expenses incurred by such other
<br />party in compelling arbitration of any Dispute. Nothing contained herein shall be deemed to be a waiver by any party
<br />that is a bank of the protections afforded to it under 12 U.S.C. Section 91 or any s(milar applicable state law.
<br />B. No Waiver of Provisional Remedies. Self-Helu and Foreclosure. The arbitraUon requirement does not Iimk the right
<br />of any parly to (i) foreclose against real or personal property collateral; (ii) exercise self-help remedies relaUng to
<br />collateral or proceeds of collateral such as setoff or repossession; or (ili) obtain provisional or ancillary remedies such as
<br />replevin, injunctive relief, attachment or the appointment of a receiver, before during or after the pendency of any
<br />arbitratlon proceeding. This exclus(on does not constltute a waiver of the right or obligation of any party to submft any
<br />Dispute to arb(tratlon or reference hereunder, including those arising from the exercise of the actions detailed in
<br />sections (i), (if) and (iii) of this paregraph.
<br />C_ Arbltrator Qualtflcations and Powers. Any arbitration proceeding in which the amount in controversy is
<br />$5,000,000.00 or less will be decided by a single arbitrator selected acxording to the Rules, and who shall not render
<br />an award of greater than $5,000,000.00. My Dispute in which the amount in controversy exceeds $5,000,000.00
<br />shall be decided by majority vote of a panel of three arbitrators; provided however, that all three arbitrators muat
<br />actively participate in all hearings and deliberetions. Every arbiVator must be a neutral practicing attomey or a reUred
<br />member of the state or federal judiciary, in either cese with a minimum of ten years experience in the substanUve lew
<br />applicable to the subject matter of the Dispute. The arbitrator will determine whether or not an issue is arbitratable and
<br />will give effect to the statutes of flmitaUon in detertnining any claim. In any arbitraUon proceeding the arbitrator will
<br />decide (by documents only or with a hearing at tha arbitrator's discretion) any pre-hearing motions which are similar to
<br />motlons to dismiss for failure to state a claim or motlons for summary adjudication. The arbitrator shall resolve all
<br />Disputes in accordance with the applicable substantive law and may grant any remedy or relief that a court of such
<br />state c�uld order or grant within the scope hereof and such ancillary relief as is necessary to make effective any award.
<br />The arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to take such
<br />other action as the arbitretor deems necessary to the same extent a judge coutd pursuant to the Federal Rules of Civil
<br />Procedure, the applicable state rules of civil procedure, or other applicable law. Judgment upon the award rendered by
<br />the arbitrator may be entered in any court having jurisdiction. The institution and maintenence of an action for judicfal
<br />relief or pursuit of a provisional or ancillary remedy shall not constltute a waiver of the right of any party, including the
<br />plaintlff, to submft the controversy or claim to arblVaUon if any other party contests such action for judicial relief.
<br />D. Dlscoverv. In any arbitratlon proceeding discovery will be permttted in accordance with the Rules. All discovery
<br />shall be expressly Iimited to matters directly relevant to the Dispute being arbiVated and must be completed no later
<br />than 20 days before the hearing date. Any requests for an extension of the discovery periods, or any discovery
<br />disputes, will be subject to flnal determinatlon by the arbitrator upon a showing that the request for discovery is
<br />essential for the party's presentation and that no altemative means for obtaining information is available.
<br />E. Clasa Proeeedings and Consolidallons. No party hereto shall be entitled to join or consolidate disputes by or against
<br />non-parties in any arbitraUon, or to include in any arbitration any dispute as a representative or member of a class, or to
<br />act in any arbiVatlon in the interest of the general public or in a private attomey general capaciry. As used herein,
<br />"non-parties" shall mean all persons and entities except Lender and the party(ies) exacutlng this agreement or any
<br />related Document.
<br />F. Miseallaneous. To the mabmum extent practicable, the AAA, the arbftrators and the partles shall take all acUon
<br />required to conclude any arbitration proceeding withfn 180 days of the filing of the Dispute with the Al�. No arbitrator
<br />or other party to an arbitratlon proceeding may disclose the existence, content or results thereoi, except for disclosures
<br />of informatlon by a party required in tha ordinary course of its business or by appUcable law or regulatlon. If more than
<br />one agreement for arbitration by or beriveen the partles potenUally applies to a Dispute, the arbitratlon provision most
<br />direcUy related to the documents between the parties or the subject matter of the Dispute shell crontrol. This arbitraUon
<br />
|