JURY WAIVER; JUDICIAL REFERENCE. Xxxxxxxx and Xxxxxx each waive their respective rights to a trial before a jury in connection with any disputes related to this Note, the loan evidenced hereby and any other loan documents in connection herewith and therewith. Such disputes include without limitation any claim by Xxxxxxxx or Xxxxxx, claims brought by Borrower- as a class representative on behalf of others, and claims by a class representative on Xxxxxxxx’s behalf as a class member (so-called “class action” suits). This provision shall not apply if, at the time an action is brought, Xxxxxxxx’s loan is funded or maintained in a state where this jury trial waiver is not permitted by law. If a jury trial waiver is not permitted by applicable law and a dispute arises between Xxxxxxxx and Lender with respect to this Note, its enforcement or the transactions contemplated by the related loan documents, either of Borrower or Lender may require that it be resolved by judicial reference in accordance with California Code of Civil Procedure, Sections 638, et seq., including without limitation whether the dispute is subject to a judicial reference proceeding. The referee shall be a retired judge, agreed upon by the parties, from either the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Service, Inc. (JAMS). If the parties cannot agree on the referee, the party who initially selected the reference procedure shall request a panel of ten retired judges from either AAA or JAMS, and the court shall select the referee from that panel. The referee shall be appointed to sit with all of the powers provided by law. The parties agree that time is of the essence in conducting the judicial reference proceeding set forth herein. The costs of the judicial reference proceeding, including the fee for the court reporter, shall be borne equally by the parties as the costs are incurred, unless otherwise awarded by the referee. The referee shall hear all pre-trial and post-trial matters (including without limitation requests for equitable relief), prepare an award with written findings of fact and conclusions of law and apportion costs as appropriate. The referee shall be empowered to enter equitable relief as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that are binding on the parties and rule on any motion that would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. Judgment upon the award shall be entered in the court in which such proceeding was commenced and all parties shall have full rights of appeal. This provision will not be deemed to limit or constrain Lender’s right of offset, to obtain provisional or ancillary remedies, to interplead funds in the event of a dispute, to exercise any security interest or lien Lender may hold in property or to comply with legal process involving Xxxxxxxx’s accounts or other property.
Appears in 1 contract
JURY WAIVER; JUDICIAL REFERENCE. Xxxxxxxx Borrower and Xxxxxx Lender each waive their respective rights to a trial before a jury in connection with any disputes related to this NoteAgreement, any of the loan evidenced Related Documents and the transactions contemplated hereby and any other loan documents in connection herewith and therewiththereby. Such disputes include without limitation any claim by Xxxxxxxx Borrower or XxxxxxLender, claims brought by Borrower- Borrower as a class representative on behalf of others, and claims by a class representative on Xxxxxxxx’s Borrower's behalf as a class member (so-called “"class action” " suits). This provision shall not apply if, if at the time an action is brought, Xxxxxxxx’s brought Borrower's loan is funded or maintained in a state where this jury trial waiver is not permitted by law. If a jury trial waiver is not permitted by applicable law and a dispute arises between Xxxxxxxx Borrower and Lender with respect to this NoteAgreement, its any of the Related Documents, the enforcement hereof or thereof or the transactions contemplated by the related loan documentshereby or thereby, either of Borrower or Lender may require that it be resolved by judicial reference in accordance with California Code of Civil Procedure, Sections 638, et seq., including without limitation whether the dispute is subject to a judicial reference proceeding. The referee shall be a retired judgejust, agreed upon by the parties, from either the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Service, Inc. (JAMS). If the parties cannot agree on the referee, the party who initially selected the reference procedure shall request a panel of ten retired judges from either AAA or JAMS, and the court shall select the referee from that panel. The referee shall be appointed to sit with all of the powers provided by law. The parties agree that time is of the essence in conducting the judicial reference proceeding set forth herein. The costs of the judicial reference proceeding, including the fee for the court reporter, shall be borne equally by the parties as the costs are incurred, unless otherwise awarded by the referee. The referee shall hear all pre-trial and post-trial matters (including without limitation requests for equitable relief), prepare an award with written findings of fact and conclusions of law and apportion costs as appropriate. The referee shall be empowered to enter equitable relief as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that are binding on the parties and rule on any motion that would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. Judgment upon the award shall be entered in the court in which such proceeding was commenced and all parties shall have full rights of appeal. This provision will not be deemed to limit or constrain Lender’s 's right of offset, to obtain provisional or ancillary remedies, to interplead funds in the event of a dispute, to exercise any security interest or lien Lender may hold in property or to comply with legal process involving XxxxxxxxBorrower’s accounts or other property. INCREASED COSTS. If any change in a law, rule or regulation, or the interpretation or application thereof, or Lender’s compliance with any request, guideline or directive (whether or not having the force of law) of any governmental authority (collectively, a “Change in Law”) shall (i) impose, modify or deem applicable any reserve, special deposit or similar requirement against or with respect to the assets of, deposits with or for the account of or credit extended by Lender or (ii) impose on Lender any other condition affecting this Agreement or the loans hereunder or any letter of credit or participation therein and the result of any of the foregoing shall be to increase the cost to Lender of making or maintaining any loan (or its commitment to make any such loan) or to increase the cost to Lender of issuing or maintaining any letter of credit or to reduce the amount of any sum received or receivable by Lender hereunder, then Borrower will pay to Lender such additional amount as will compensate Lender for such additional costs or reduction. If Lender determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on the capital of Lender or Lender’s holding company from this Agreement or the loans or letters of credit made or issued by Lender to a level below that which Lender or Lender’s holding company could have achieved but for such Change in Law (taking into consideration Lender’s policies and the policies of Lender’s holding company with respect to capital adequacy), then from time to time Borrower will pay to Lender such additional amount as will compensate Lender or Lender’s holding company for any such reduction, as set forth in a certificate of Lender describing in reasonable detail the amount or amounts necessary to compensate Lender or its holding company. The amounts and description in such certificate shall be conclusive absent manifest error, and Borrower agrees to pay to Lender the amount shown in such certificate within ten (10) business days after receipt thereof. Failure or delay on the part of Lender to demand compensation pursuant to this section shall not constitute a waiver of Lender’s rights to demand such compensation.
Appears in 1 contract
JURY WAIVER; JUDICIAL REFERENCE. Xxxxxxxx and Xxxxxx each waive their respective rights to a trial before a jury in connection with any disputes related to this NoteAgreement, any of the loan evidenced Related Documents and the transactions contemplated hereby and any other loan documents in connection herewith and therewiththereby. Such disputes include without limitation any claim by Xxxxxxxx or Xxxxxx, claims brought by Borrower- Xxxxxxxx as a class representative on behalf of others, and claims by a class representative on Xxxxxxxx’s behalf as a class member (so-called “class action” suits). This provision shall not apply if, at the time an action is brought, Xxxxxxxx’s loan is funded or maintained in a state where this jury trial waiver is not permitted by law. If a jury trial waiver is not permitted by applicable law and a dispute arises between Xxxxxxxx and Lender with respect to this NoteAgreement, its any of the Related Documents, the enforcement hereof or thereof or the transactions contemplated by the related loan documentshereby or thereby, either of Borrower or Lender may require that it be resolved by judicial reference in accordance with California Code of Civil Procedure, Sections 638, et seq., including without limitation whether the dispute is subject to a judicial reference proceeding. The referee shall be a retired judge, agreed upon by the parties, from either the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Service, Inc. (JAMS). If the parties cannot agree on the referee, the party who initially selected the reference procedure shall request a panel of ten retired judges from either AAA or JAMS, and the court shall select the referee from that panel. The referee shall be appointed to sit with all of the powers provided by law. The parties agree that time is of the essence in conducting the judicial reference proceeding set forth herein. The costs of the judicial reference proceeding, including the fee for the court reporter, shall be borne equally by the parties as the costs are incurred, unless otherwise awarded by the referee. The referee shall hear all pre-trial and post-trial matters (including without limitation requests for equitable relief), prepare an award with written findings of fact and conclusions of law and apportion costs as appropriate. The referee shall be empowered to enter equitable relief as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that are binding on the parties and rule on any motion that would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. Judgment upon the award shall be entered in the court in which such proceeding was commenced and all parties shall have full rights of appeal. This provision will not be deemed to limit or constrain Lender’s Lenders right of offset, to obtain provisional or ancillary remedies, to interplead funds in the event of a dispute, to exercise any security interest or lien Lender may hold in property or to comply with legal process involving XxxxxxxxBorrower’s accounts or other property.
Appears in 1 contract
JURY WAIVER; JUDICIAL REFERENCE. Xxxxxxxx Borrower and Xxxxxx Lender each waive their respective rights to a trial before a jury in connection with any disputes related to this NoteAgreement, any of the loan evidenced Related Documents and the transactions contemplated hereby and any other loan documents in connection herewith and therewiththereby. Such disputes include without limitation any claim by Xxxxxxxx Borrower or XxxxxxLender, claims brought by Borrower- Borrower as a class representative on behalf of others, and claims by a class representative on Xxxxxxxx’s Borrower's behalf as a class member (so-called “"class action” " suits). This provision shall not apply if, at the time an action is brought, Xxxxxxxx’s Borrower's loan is funded or maintained in a state where this jury trial waiver is not permitted by law. If a jury trial waiver is not permitted by applicable law and a dispute arises between Xxxxxxxx Borrower and Lender with respect to this NoteAgreement, its any of the Related Documents, the enforcement hereof or thereof or the transactions contemplated by the related loan documentshereby or thereby, either of Borrower or Lender may require that it be resolved by judicial reference in accordance with California Code of Civil Procedure, Sections 638, et seq., including without limitation whether the dispute is subject to a judicial reference proceeding. The referee shall be a retired judge, agreed upon by the parties, from either the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Service, Inc. (JAMS). If the parties cannot agree on the referee, the party who initially selected the reference procedure shall request a panel of ten retired judges from either AAA or JAMS, and the court shall select the referee from that panel. The referee shall be appointed to sit with all of the powers provided by law. The parties agree that time is of the essence in conducting the judicial reference proceeding set forth herein. The costs of the judicial reference proceeding, including the fee for the court reporter, shall be borne equally by the parties as the costs are incurred, unless otherwise awarded by the referee. The referee shall hear all pre-trial and post-trial matters (including without limitation requests for equitable relief), prepare an award with written findings of fact and conclusions of law and apportion costs as appropriate. The referee shall be empowered to enter equitable relief as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that are binding on the parties and rule on any motion that would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. Judgment upon the award shall be entered in the court in which such proceeding was commenced and all parties shall have full rights of appeal. This provision will not be deemed to limit or constrain Lender’s 's right of offset, to obtain provisional or ancillary remedies, to interplead funds in the event of a dispute, to exercise any security interest or lien Lender may hold in property or to comply with legal process involving Xxxxxxxx’s Borrower's accounts or other property.
Appears in 1 contract
