EXHIBIT 10.18
ARBITRATION AND NOTICE OF FINAL AGREEMENT
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To: First Consumer Credit, Inc.
00000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
(collectively whether or more, "Borrower")
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As of the effective date of this Notice, Borrower and THE FROST NATIONAL BANK,
a national banking association ("Lender") have consummated a transaction
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pursuant to which Xxxxxx has agreed to make a loan or loans to Borrower, and/or
to otherwise extend credit or make financial accommodations to or for the
benefit of Borrower (collectively, whether one or more, the "Loan").
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ARBITRATION
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Upon written request of any of Lender, Borrower or U.S. Home Systems, Inc.
("Guarantor") any controversy or claim between or among the parties hereto
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including but not limited to those arising out of or relating to the Loan, any
of the loan documents or any related agreements or instruments executed in
connection with the Loan (the "Loan Documents"), including any claim based on
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or arising from an alleged tort, shall be determined by binding arbitration in
accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), the Commercial Arbitration Rules of the American
Arbitration Association, and the "Special Rules" set forth below unless both
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Lender and Borrower or Guarantor, as applicable, in their respective sole
discretion, agree in writing to mediate the dispute prior to submitting to
binding arbitration. In the event of any inconsistency, the Special Rules shall
control. Judgment upon any arbitration award may be entered in any court having
jurisdiction. Any party to this Agreement may bring an action, including a
summary or expedited proceeding, to compel arbitration of any controversy or
claim to which this agreement applies in any court having jurisdiction over
such action. The party that requests arbitration has the burden to initiate the
arbitration proceedings pursuant to and by complying with the Commercial
Arbitration Rules of the American Arbitration Association and shall pay all
associated administrative and filing fees.
The arbitration shall be conducted in the City of San Antonio, Bexar County,
Texas and administered by the American Arbitration Association. All arbitration
hearings will be commenced within sixty (60) days of the written request for
arbitration, and if the arbitration hearing is not commenced within the sixty
(60) days, the party that requested arbitration shall have waived its election
to arbitrate. Nothing in this Agreement shall be deemed to (i) limit the
applicability of any otherwise applicable statutes of limitation or repose and
any waivers contained in this Agreement; or (ii) be a waiver by Lender of the
protection afforded to it by 12 U.S.C. Sec. 91 or any substantially equivalent
state law; or (iii) limit the right of Lender hereto (A) to exercise self help
remedies such as (but not limited to) setoff, or (B) to foreclose against any
real or personal property collateral in accordance with applicable law, or (C)
to obtain from a court provisional or ancillary remedies such as (but not
limited to) injunctive relief or the appointment of a receiver in accordance
with applicable law. Lender may exercise such self help remedies, foreclose
upon such property, or obtain such provisional or ancillary remedies before,
during or after the pendency of any arbitration proceeding brought pursuant to
this Agreement or any other Loan Document. At Lender's option, foreclosure
under a deed of trust or mortgage may be accomplished by any of the following:
the exercise of a power of sale under the deed of trust or mortgage, or by
judicial sale under the deed of trust or mortgage, or by judicial foreclosure.
Neither this exercise of self help remedies nor the institution or maintenance
of an action for foreclosure or provisional or ancillary remedies shall
constitute a waiver of the right of any party, including the claimant in any
such action, to arbitrate the merits of the controversy or claim occasioning
resort to such remedies.
ARBITRATION AND NOTICE OF FINAL AGREEMENT - Page 1
FACSIMILE DOCUMENTS AND SIGNATURES
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For purposes of negotiating and finalizing the Written Loan Agreement (as
hereinafter defined), if this document or any document executed in connection
with the Loan is transmitted by facsimile machine ("fax"), it shall be treated
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for all purposes as an original document. Additionally, the signature of any
party on this document transmitted by way of a facsimile machine shall be
considered for all purposes as an original signature. Any such faxed document
shall be considered to have the same binding effect as an original document. At
the request of any party, any faxed document shall be re-executed by each
signatory party in an original form.
WAIVER OF RIGHT TO TRIAL BY JURY
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THE PARTIES TO THIS AGREEMENT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER TO ENFORCE THIS AGREEMENT, TO COLLECT DAMAGES FOR THE BREACH OF THIS
AGREEMENT, OR WHICH IN ANY OTHER WAY ARISE OUT OF, ARE CONNECTED TO OR ARE
RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT. ANY SUCH
ACTION SHALL BE TRIED BY THE JUDGE WITHOUT A JURY.
NOTICE OF FINAL AGREEMENT
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In connection with the Loan, Xxxxxxxx, Xxxxxx and Guarantor have executed and
delivered and may hereafter execute and deliver certain agreements, instruments
and documents (collectively hereinafter referred to as the "Written Loan
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Agreement").
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It is the intention of Borrower, Lender and Guarantor that this Notice be
incorporated by reference into each of the written agreements, instruments and
documents comprising the Written Loan Agreement Borrower, Lender and Guarantor
each warrants and represents that the entire agreement made and existing by or
among Borrower, Lender and Guarantor with respect to the Loan is and shall be
contained within the Written Loan Agreement, as amended and supplemented
hereby, and that no agreements or promises exist or shall exist by or among,
Borrower, Lender and Guarantor that are not reflected in the Written Loan
Agreement
THE WRITTEN LOAN AGREEMENT REPRESENTS TEE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Executed: October 2, 2001.
THE FROST NATIONAL BANK,
a national banking association
By:____________________________________
Xxxxx Xxxxxx
Assistant Vice President
ARBITRATION AND NOTICE OF FINAL AGREEMENT - Page 2
ACKNOWLEDGED AND AGREED:
BORROWER:
FIRST CONSUMER CREDIT, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
GUARANTOR:
U.S. HOME SYSTEMS, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
ARBITRATION AND NOTICE OF FINAL AGREEMENT - Page 3
