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1 1 1 1 1 1 1 11 00000 IIR I I II I <br />00000000000000090 <br />ASSIGNMENT OF RENTS <br />Loan No: 4360736681 (Continued) 200214138 Page <br />granted under the loan documents or agreements governing the sale of the loan; and (it) the purchaser of a loan may enforce Its Interests <br />Irrespective of any claims or defenses that the parties may have against Lender. <br />FACSIMILE AND COUNTERPART. This document may be signed in any number of separate copies, each of which shall be effective as an <br />original, but all of which taken together shall constitute a single document. An electronic transmission or other facsimile of this document <br />or any related document shall be deemed an original and shall be admissible as evidence of the document and the signer's execution. <br />FURTHER ASSURANCES. The parties hereto agree to do all things deemed necessary by Lender in order to fully document the loan <br />evidenced by this Note and any related agreements, and will fully cooperate concerning the execution and delivery of security agreements, <br />stock powers, instructions and/or other documents pertaining to any collateral intended to secure the Indebtedness. The undersigned <br />agree to assist in the cure of any detects in the execution, delivery or substance of the Note and related agreements, and in the creation <br />and perfection of any liens, security interests or other collateral rights securing the Note. <br />ARBITRATION AGREEMENT. Binding Arbitration. Lender and each party to this agreement hereby agree, upon demand by any party, to <br />submit any Dispute to binding arbitration in accordance with the terms of this Arbitration Program. A "Dispute" shell Include any dispute, <br />claim or controversy of any kind, whether in contract or in tort legal or equitable, now existing or hereafter arising, relating in any way to <br />this Agreement or any related agreement incorporating this Arbitration Program (the "Documents"), or any past, present, or future loans, <br />transactions, contracts, agreements, relationships, incidents or injuries of any kind whatsoever relating to or involving Business Banking, <br />Community Banking, or any successor group or department of Lender. DISPUTES SUBMITTED TO ARBITRATION ARE NOT RESOLVED IN <br />COURT BY A JUDGE OR JURY. <br />Governing Rules. Any arbitration proceeding will (g be governed by the Federal Arbitration Act (Title 9 of the United States Code), <br />notwithstanding any conflicting choice of law provision in any of the documents between the parties; and (iii be conducted by the <br />American Arbitration Association ("AAA"), or such other administrator as the parties shall mutually agree upon, in accordance with the <br />AAA's commercial dispute resolution procedures, unless the claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest, <br />arbitration fees and costs in which case the arbitration shall be conducted in accordance with the AAA's optional procedures for large, <br />complex commercial disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial <br />disputes to be referred to, as applicable, as the "Rules"). If there is any inconsistency between the terms hereof and the Rules, the terms <br />and procedures set forth herein shall control. Arbitration proceedings hereunder shall be conducted at a location mutually agreeable to the <br />parties, or it they cannot agree, then at a location selected by the AAA in the state of the applicable substantive law primarily governing <br />the Credit Any party who fails or refuses to submit to arbitration following a demand by any other party shall bear all costs and expenses <br />incurred by such other party in compelling arbitration of any Dispute. Arbitration may be demanded at any time, and may be compelled by <br />summary proceedings in Court. The Institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy <br />shall not constitute a waiver of the right of any party, Including the plaintiff, to submit the controversy o r claim to arbitration 'd any other <br />party contests such action for judicial relief. The arbitrator shall award all costs and expenses of the arbitration proceeding. Nothing <br />contained herein shall be deemed to be a waiver by any party that is a bank of the protections afforded to it under 12 U.S.C. °91 or <br />any similar applicable state law. <br />No Waiver of Provisional Remedies, Self -Help and Foreclosure. The arbitration requirement does not limit the right of any party to (i) <br />foreclose against real or personal property collateral; (ii) exercise self -help remedies relating to collateral or proceeds of collateral such as <br />setoff or repossession; or (III) obtain provisional or ancillary remedies such as replevin, injunctive relief, attachment or the appointment of a <br />receiver, before during or after the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the right or <br />obligation of any party to submit any Dispute to arbitration or reference hereunder, including those arising from the exercise of the actions <br />detailed in sections (i), IIII and Iin of this paragraph. <br />Arbitrator Qualifications and Powers. Any arbitration proceeding in which the amount in controversy is $5,000,000.00 or less will be <br />decided by a single arbitrator selected according to the Rules, and who shall not render an award of greater than $5,000,000.00. Any <br />Dispute In which the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel of three arbitrators; <br />provided however, that all three arbitrators must actively participate in all hearings and deliberations. Every arbitrator must be a practicing <br />attorney or a retired member of the state or federal judiciary, in either case with a minimum of ten years experience in the substantive law <br />applicable to the subject matter of the Dispute. The arbitrator will determine whether or not an issue is arbltratable and will give effect to <br />the statutes of limitation in determining any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a <br />hearing at the arbitrator's discretion) any pre hearing motions which are similar to motions to dismiss for failure to state a claim or motions <br />for summary adjudication. The arbitrator shall resolve all Disputes in accordance with the applicable substantive law and may grant any <br />remedy or relief that a court of such state could order or grant within the scope hereof and such ancillary relief as is necessary to make <br />effective any award. The arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to take <br />such other action as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the <br />applicable State Rules of Civil Procedure, or other applicable law. Judgment upon the award rendered by the arbitrator may be entered in <br />any court having jurisdiction. <br />Discovery. In any arbitration proceeding discovery will be permitted in accordance with the Rules. All discovery shall be expressly limited <br />to matters directly relevant to the Dispute being arbitrated and must be completed no later than 20 days before the hearing date and within <br />180 days of the tiling of the Dispute with the AAA. Any requests for an extension of the discovery periods, or any discovery disputes, will <br />be subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party's presentation <br />and that no alternative means for obtaining information is available. <br />Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and the parties shall take all action required to conclude any <br />arbitration proceeding within 180 days of the filing of the Dispute with the AAA. The resolution of any Dispute shall be determined by a <br />