Judicial Reference. Buyer and Seller each prefer that any dispute between them be resolved in litigation subject to the jury trial waiver set forth herein, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section will be applicable until: (a) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid or enforceable; or (b) the California legislature passes legislation and the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute arising out of or relating to this Agreement, shall be tried solely through a judicial reference as provided in sections 638 through 6452 of the California Code of Civil Procedure CCCP”) and as described herein (the “Judicial Reference”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver of the parties’ right to trial solely through a Judicial Reference. A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not granted. The referee shall be appointed to sit with all the powers provided by law. The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial, which new trial, if granted, is also to be a reference proceeding under this provision.
Appears in 2 contracts
Sources: Factoring Agreement, Factoring Agreement (Stellar Acquisition III Inc.)
Judicial Reference. Buyer Without limiting the Beneficiary’s right to conduct and Seller each prefer that pursue any dispute between them be resolved in litigation subject non-judicial proceeding/remedy permitted by applicable law, including a non-judicial trustee’s sale, if and to the jury trial waiver set forth herein, but extent that Section 6.10 of this Deed of Trust is determined by a court of competent jurisdiction to be unenforceable or is otherwise not applied by any such court the California Supreme Court has held Grantor hereby consents and agrees that such pre-dispute jury trial waivers are unenforceable. This section will be applicable until: (a) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid or enforceable; or (b) the California legislature passes legislation any and the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers all disputes and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute arising out of or relating to this Agreement, litigation shall be tried solely through heard by a judicial referee in accordance with the general reference as provided in sections 638 through 6452 provisions of the California Code of Civil Procedure CCCP”) and as described herein (Section 638, sitting without a jury in the “Judicial Reference”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver of the parties’ right to trial solely through a Judicial Reference. A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not granted. The referee shall be appointed to sit with all the powers provided by law. The referee shall be required to determine all issues in accordance with existing case law and the statutory laws county of the State of California. The rules of evidence applicable to proceedings at law in where the State of California will be applicable to the reference proceeding. The Property is located, (b) such referee shall be empowered hear and determine all of the issues in any such dispute (whether of fact or of law), including issues pertaining to enter equitable a “provisional remedy” as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized defined in a trialCalifornia Code of Civil Procedure Section 1281.8, including without limitation motions limitation, entering restraining orders, entering temporary restraining orders, issuing temporary and permanent injunctions and appointing receivers, and shall report a statement of decision, provided that, if during the course of any dispute any party desires to seek such a “provisional remedy” but a referee has not been appointed, or is otherwise unavailable to hear the request for summary judgment or summary adjudication. The referee shall issue a decision such provisional remedy, then such party may apply to the Superior Court in the county in which the Trust Premises is located for such provisional relief, and (c) pursuant to CCP section 644 and the referee’s decision shall California Code of Civil Procedure Section 640(a), judgment may be entered by upon the Court as a judgment or an order decision of such referee in the same manner as if the action dispute had been tried directly by the Courta court. The final judgment parties shall use their respective commercially reasonable and good faith efforts to agree upon and select such referee, provided that such referee must be a retired California state or order entered by federal judge, and further provided that if the parties cannot agree upon a referee, the referee shall be fully appealable as appointed by the presiding judge of such Superior Court. Each party hereto acknowledges that this consent and agreement is a material inducement to enter into the Loan Documents and all other agreements and instruments provided by law. Buyer and Seller reserve the right to receive findings of fact, conclusions of laws, a written statement of decisionfor herein or therein, and the right to move for a new trial, which new trial, if granted, is also that each will continue to be bound by and to rely on this consent and agreement in their related future dealings. Each party hereto further warrants and represents that it has reviewed this consent and agreement with legal counsel of its own choosing, or has had an opportunity to do so, and that it knowingly and voluntarily gives this consent and enters into this agreement having had the opportunity to consult with legal counsel. This consent and agreement is irrevocable, meaning that it may not be modified either orally or in writing, and this consent and agreement shall apply to any subsequent amendments, renewals, supplements, or modifications to this Deed of Trust or any other agreement or document entered into between the parties in connection with this Deed of Trust. In the event of litigation, this Deed of Trust may be filed as evidence of either or both parties’ consent and agreement to have any and all disputes heard and determined by a reference proceeding referee under this provision.California Code of Civil Procedure Section 638. Grantor’s Initial:
Appears in 2 contracts
Sources: Credit Agreement (Applied Medical Corp), Credit Agreement (Applied Medical Corp)
Judicial Reference. Buyer If and Seller each prefer that any dispute between them be resolved in litigation subject to only if the jury trial waiver set forth hereinin Section 11 of this Agreement is invalidated for any reason by a court of law, but statute or otherwise, the California Supreme Court has held that such pre-dispute reference provisions set forth below shall be substituted in place of the jury trial waivers are unenforceablewaiver. This section will be applicable until: (a) So long as the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid remains valid, the reference provisions set forth in this Section shall be inapplicable.
12.1 Each controversy, dispute or enforceable; or claim (beach, a “Claim”) between the California legislature passes legislation and the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement, any security agreement executed by Borrower in favor of Bank, any note executed by Borrower in favor of Bank or any other document, instrument or agreement executed by Borrower with or in favor of Bank (collectively in this Section, the “Loan Documents”), other than (i) all matters in connection with nonjudicial foreclosure of security interests in real or personal property; or (ii) the appointment of a receiver or the exercise of other provisional remedies (any of which may be initiated pursuant to applicable law) that are not settled in writing within fifteen (15) days after the date on which a party subject to the Loan Documents gives written notice to all other parties that a Claim exists (the “Claim Date”) shall be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCPProcedure, or their successor sections (“CCP”) and ), which shall constitute the exclusive remedy for the resolution of any Claim concerning the Loan Documents, including whether such Claim is subject to the reference proceeding. Except as described herein set forth in this section, the parties waive the right to initiate legal proceedings against each other concerning each such Claim. Venue for these proceedings shall be in the Superior Court in the County where the real property, if any, is located or in a County where venue is otherwise appropriate under state law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2By mutual agreement, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the referee shall be select a retired Judge or Justice selected by mutual written agreement of the parties. If Court to serve as referee, and if they cannot so agree within fifteen (15) days after the panics do not agreeClaim Date, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative) shall promptly select the referee. A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not granted. The referee shall be appointed to sit as a temporary judge, with all the powers provided for a temporary judge, as authorized by law. The referee shall be required , and upon selection should take and subscribe to determine all issues the oath of office as provided for in accordance with existing case law and the statutory laws Rule 244 of the State California Rules of CaliforniaCourt (or any subsequently enacted Rule). The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee Each party shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision have one peremptory challenge pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial, which new trial, if granted, is also to be a reference proceeding under this provision§170.
Appears in 2 contracts
Sources: Loan Agreement (Reliant Technologies Inc), Loan and Security Agreement (Hireright Inc)
Judicial Reference. Buyer and Seller each (a) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth hereinin Section 12.10 of this Agreement, but the California Supreme Court has held that such pre-dispute jury trial waivers Jury Trial Waivers not authorized by statute are unenforceable. This section will Reference Provision shall be applicable until: :
(ai) the California Supreme Court holds that a pre-dispute jury trial waiver Jury Trial Waiver provision similar to that contained set forth herein is valid or enforceable; or or
(ii) the California Legislature enacts a statute which becomes law, authorizing pre-dispute Jury Trial Waivers of the type set forth herein and, as a result, such waivers become enforceable.
(b) Other than (i) nonjudicial foreclosure of security interests in real or personal property, (ii) the California legislature passes legislation and appointment of a receiver or (iii) the governor exercise of other provisional remedies (any of which may be initiated pursuant to applicable law), any controversy, dispute or claim (each, for purposes of this Section, a “Claim”) between the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement, the Loan Documents, a Swap Contract or any other document, instrument or agreement between the Agent and the Borrower (collectively in this Section, the “Documents”), shall be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein otherwise provided in the Documents, venue for the reference proceeding shall be in the Superior Court or Federal District Court in the County or District where the real property, if any, is located or in a County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(c) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(d) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues of law or fact within ninety (90) days after the date of the conference and (iii) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
(e) The referee shall have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(f) Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter shall be used at any hearing conducted before the referee, and the referee shall be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties shall equally share the cost of the referee and the court reporter at trial.
(g) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will shall be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will shall be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision and pursuant to CCP section §644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(h) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure shall be resolved and determined by arbitration. The arbitration shall be conducted by a retired judge or Justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding. THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION SHALL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION SHALL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT OR THE DOCUMENTS.
Appears in 2 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (Solarcity Corp)
Judicial Reference. Buyer and Seller each prefer that any dispute between them be resolved in litigation subject to (a) In the event the jury trial waiver set forth hereinabove is not enforceable, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section will be applicable until: (a) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar parties elect to that contained herein is valid or enforceable; or proceed under this Judicial Reference Provision.
(b) With the California legislature passes legislation and the governor exception of the State of California signs into law items specified in clause (c), below, any controversy, dispute or claim (each, a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute “Claim”) between the parties arising out of or relating to this Agreement, shall Agreement or any other Loan Document will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein otherwise provided in the Agreement or any other Loan Document, venue for the reference proceeding will be in the state or federal court in the county or district where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”).
(c) The matters that shall not be subject to a reference are the following: (i) foreclosure of any security interests in real or personal property, (ii) exercise of self-help remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv) temporary, provisional or ancillary remedies (including, without limitation, writs of attachment, writs of possession, temporary restraining orders or preliminary injunctions). Buyer This Agreement does not limit the right of any party to exercise or oppose any of the rights and Seller further realize that by agreeing remedies described in clauses (i) and (ii) or to Judicial Reference seek or oppose from a court of competent jurisdiction any of the items described in clauses (iii) and (iv). The exercise of, or opposition to, any of those items does not waive the right of any party to a reference pursuant to this reference provision as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the herein.
(d) The referee shall be a retired Judge judge or Justice justice selected by mutual written agreement of the parties. If the panics parties do not agreeagree within ten (10) days of a written request to do so by any party, then, upon request of any party, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. Pursuant to CCP § 170.6, each party shall have one peremptory challenge to the referee selected by the Presiding Judge of the Court (or his or her representative).
(e) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be appointed requested, subject to sit change in the time periods specified herein for good cause shown, to (a) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within one hundred twenty (120) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
(f) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(g) Except as expressly set forth herein, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with all respect to the powers course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided by lawa courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
(h) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. Pursuant to CCP section 644 and the referee’s § 644, such decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the CourtCourt and any such decision will be final, binding and conclusive. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by lawreferee. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(i) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act § 1280 through § 1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
(j) THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM WHICH ARISES OUT OF OR IS RELATED TO, THIS AGREEMENT OR THE LOAN DOCUMENTS.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.), Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.)
Judicial Reference. Buyer If and Seller each prefer that any dispute between them be resolved in litigation subject to only if the jury trial waiver set forth hereinin Section 11.1 of this Agreement is invalidated for any reason by a court of law, but statute or otherwise, the California Supreme Court has held that such pre-dispute reference provisions set forth below shall be substituted in place of the jury trial waivers are unenforceablewaiver. This section will So long as the jury trial waiver remains valid, the reference provisions set forth in this Section shall be applicable until: inapplicable.
(a) Each controversy, dispute or claim (each, a “Claim”) between the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid or enforceable; or (b) the California legislature passes legislation and the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement or any Ancillary Agreement, other than (i) all matters in connection with nonjudicial foreclosure of security interests in real or personal property; or (ii) the appointment of a receiver or the exercise of other provisional remedies (any of which may be initiated pursuant to applicable law) that are not settled in writing within fifteen days after the date on which a party to this Agreement or any of the Ancillary Agreements gives written notice to all other parties that a Claim exists (the “Claim Date”) shall be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCPProcedure, or their successor sections (“CCP”) and ), which shall constitute the exclusive remedy for the resolution of any Claim concerning this Agreement or any of the Ancillary Agreements, including whether such Claim is subject to the reference proceeding. Except as described herein set forth in this section, the parties waive the right to initiate legal proceedings against each other concerning each such Claim. Venue for these proceedings shall be in the Superior Court in Los Angeles County (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2By mutual agreement, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the referee shall be select a retired Judge or Justice selected by mutual written agreement of the parties. If Court to serve as referee, and if they cannot so agree within fifteen days after the panics do not agreeClaim Date, the referee parties shall be selected by the Trial Court. Buyer and Seller further agree request that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative) promptly select the referee. A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not granted. The referee shall be appointed to sit as a temporary judge, with all the powers provided for a temporary judge, as authorized by law, and upon selection should take and subscribe to the oath of office as provided for in Rule 244 of the California Rules of Court (or any subsequently enacted Rule). The referee shall be required to determine all issues in accordance with existing case law Purchasers (acting together)) and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee Companies (acting together) shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision each have one peremptory challenge pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial, which new trial, if granted, is also to be a reference proceeding under this provision§ 170.
Appears in 1 contract
Judicial Reference. Buyer and Seller each prefer that any dispute between them be resolved in litigation subject to the jury trial waiver set forth herein, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section will be applicable until: (a) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid Other than (i) nonjudicial foreclosure and all matters in connection therewith regarding security interests in real or enforceablepersonal property; or (bii) the California legislature passes legislation appointment of a receiver, or the exercise of other provisional remedies (any and all of which may be initiated pursuant to applicable law), each controversy, dispute or claim between the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Credit Agreement, shall any General Security Agreement executed by Borrower in favor of Bank or any Note executed by Borrower in favor of Bank (collectively, in this Section 5.11, the "Agreement") which controversy, dispute or claim is not settled in writing within thirty (30) days after the "CLAIM DATE" (defined as the date on which a party subject to this Agreement gives written notice to all other parties that a controversy, dispute or claim exists), will be tried solely through settled by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 ET SEQ. of the California Code of Civil Procedure CCCP”) Procedure, or their successor section ("CCP"), which shall constitute the exclusive remedy for the settlement of any controversy, dispute or claim concerning this Agreement, including whether such controversy, dispute or claim is subject to the reference proceeding and except as described herein (the “Judicial Reference”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2set forth above, the parties will have waived waive their rights to trial by juryinitiate any legal proceedings against each other in any court or jurisdiction other than the Superior Court in the County where the Real Property, if any, is located or San Diego County if none (the "COURT"). Buyer and Seller each further agree that the The referee shall be a retired Judge or Justice of the Court selected by mutual written agreement of the parties. If , and if they cannot so agree within forty-five (45) days after the panics do not agreeClaim Date, the referee shall be promptly selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial Reference. A request for appointment of a referee may be heard on an ex parte Court (or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not grantedhis representative). The referee shall be appointed to sit as a temporary judge, with all of the powers provided for a temporary judge, as authorized by law, and upon selection should take and subscribe to the oath of office as provided for in Rule 244 of the California Rules of Court (or any subsequently enacted Rule). Each party shall have one peremptory challenge pursuant to CCP Section 170.6. The referee shall (a) be requested to set the matter for hearing within sixty (60) days after the date of selection of the referee and (b) try any and all issues of law or fact and report a statement of decision upon them, if possible, within ninety (90) days of the Claim Date. Any decision rendered by the referee will be final, binding and conclusive and judgment shall be entered CREDIT AGREEMENT DECEMBER 5, 1997 pursuant to CCP Section 644 in any court in the State of California having jurisdiction. Any party may apply for a reference proceeding at any time after thirty (30) days following notice to any other party of the nature of the controversy, dispute or claim, by filing a petition for a hearing and/or trial. All discovery permitted by this Section 5.11 shall be completed no later than fifteen (15) days before the first hearing date established by the referee. The referee may extend such period in the event of a party's refusal to provide requested discovery for any reason whatsoever, including, without limitation, legal objections raised to such discovery or unavailability of a witness due to absence or illness. No party shall be entitled to "priority" in conducting discovery. Depositions may be taken by either party upon seven (7) days written notice, and request for production or inspection of documents shall be responded to within ten (10) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding upon the parties. Pending appointment of the referee as provided herein, the Superior Court is empowered to issue temporary and/or provisional remedies, as appropriate. CREDIT AGREEMENT DECEMBER 5, 1997
(b) Except as expressly set forth in this Section 5.11, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of all hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter except that when any party so requests, a court reporter will be used at any hearing conducted before the referee. The party making such a request shall have the obligation to arrange for and pay for the court reporter. The costs of the court reporter at the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, to provide all temporary or and/or provisional remedies, remedies and to enter equitable orders that will be binding on upon the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudicationparties. The referee shall issue a decision pursuant to CCP section 644 and single judgment at the referee’s decision close of the reference proceeding which shall be entered by dispose of all of the Court as a judgment or an order in claims of the same manner as if parties that are the action had been tried by subject of the Courtreference. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller parties hereto expressly reserve the right to receive contest or appeal from the final judgment or any appealable order or appealable judgment entered by the referee. The parties hereto expressly reserve the right to findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(d) In the event that the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by the reference procedure herein described will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge of the Court, in accordance with the California Arbitration Act, Section 1280 through Section 1294.2 of the CCP as amended from time to time. The limitations with respect to discovery as set forth hereinabove shall apply to any such arbitration proceeding.
Appears in 1 contract
Judicial Reference. Buyer and Seller each prefer The Borrower hereby covenants the following:
(a) The Borrower prefers that any dispute between them involving it be resolved in litigation subject to the a jury trial waiver as set forth hereinin this Borrower Loan Agreement, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section Section 8.9 will be applicable until: (ai) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein in Section 8.8 of this Borrower Loan Agreement is valid or enforceable; or (bii) the California legislature Legislature passes legislation and the governor of the State of California signs into law a statute authorizing plc-pre- dispute jury trial waivers and as a result such waivers became become enforceable. Accordingly.
(b) Other than the exercise of provisional remedies (any of which may be initiated pursuant to applicable law), Buyer and Seller each knowingly and voluntarily agree that any civil action controversy, dispute or proceeding involving claim (each, a dispute “Claim”) between the parties arising out of or relating to this Agreement, shall Borrower Loan Agreement will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and as described herein ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Venue for the reference proceeding will be in the Superior Court or Federal District Court in Santa ▇▇▇▇▇ County, California (the “Judicial ReferenceCourt”). Buyer and Seller further realize that ) unless waived by agreeing to Judicial Reference as provided the Governmental Lender in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the writing.
(c) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. The referee shall be required to determine all issues in accordance with existing case law and the statutory laws Pending appointment of the State of California. The rules of evidence applicable referee, the Court has power to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all issue temporary or provisional remedies.
(d) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and Seller reserve trial- setting conference within fifteen (15) days after the right to receive findings date of factselection of the referee, conclusions (ii) if practicable, try all issues of lawslaw or fact within ninety (90) days after the date of the conference, and (iii) report a written statement of decision within twenty (20) days after the matter has been submitted for decision.
(e) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, and the right including a party’s failure to move provide requested discovery for a new trialany reason whatsoever. Unless otherwise ordered based upon good cause shown, which new trialno party shall be entitled to “priority” in conducting discovery, if granted, is also to depositions may be a reference proceeding under this provision.taken by either party upon seven
Appears in 1 contract
Sources: Loan Agreement
Judicial Reference. Buyer and Seller each (a) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth hereinin this Agreement, the Notes or the other Loan Documents (“Jury Trial Waiver”), but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceableJury Trial Waiver may not be enforceable under certain circumstances. This section will be applicable until: (a) In the California Supreme Court holds that a pre-dispute jury trial waiver provision similar event the Jury Trial Waiver is not enforceable, the parties elect to that contained herein is valid or enforceable; or proceed under this Reference Provision.
(b) Other than (i) nonjudicial foreclosure of security interests in real or personal property and self-help remedies, (ii) the California legislature passes legislation and appointment of a receiver or (iii) the governor exercise of other provisional remedies (any of which may be initiated pursuant to applicable law), any controversy, dispute or claim (each, a “Claim”) between the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement, shall the Notes or the other Loan Documents, will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein otherwise provided in this Agreement, the Notes or the other Loan Documents, venue for the reference proceeding will be in the Superior Court or Federal District Court in the County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(c) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Each party shall have one peremptory challenge pursuant to CCP §170.6. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(d) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested to (a) set the matter for a status and trial- setting conference within fifteen (15) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within ninety (90) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision. Any decision rendered by the referee will be final, binding and conclusive, and judgment shall be entered pursuant to CCP §644.
(e) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party's failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(f) Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee's power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
(g) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudicationadjudication . The referee shall issue a decision pursuant to CCP section 644 and at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. The referee’s 's decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by lawreferee. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(h) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
(i) THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY, AND THAT THEY ARE IN EFFECT WAIVING THEIR RIGHT TO TRIAL BY JURY IN AGREEING TO THIS REFERENCE PROVISION. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS.
Appears in 1 contract
Sources: Revolving Credit Agreement (Bridgepoint Education Inc)
Judicial Reference. Buyer and Seller each (i) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth hereinin this Agreement (“Jury Trial Waiver”), but the California Supreme Court has held that such preJury Trial Waiver may not be enforceable under certain circumstances. In the event the Jury Trial Waiver is not enforceable, the parties elect to proceed under this Reference Provision.
(ii) Other than (i) nonjudicial foreclosure of security interests in real or personal property and self-dispute jury trial waivers are unenforceable. This section will be applicable until: help remedies, (aii) the California Supreme Court holds that appointment of a pre-dispute jury trial waiver provision similar to that contained herein is valid or enforceable; receiver or (biii) the California legislature passes legislation and exercise of other provisional remedies (any of which may be initiated pursuant to applicable law), any controversy, dispute or claim (each, a “Claim”) between the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement, shall will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein otherwise provided in this Agreement, the Notes or the other Loan Documents, venue for the reference proceeding will be in the Superior Court or Federal District Court in the County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(iii) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. The referee Each party shall be required have one peremptory challenge pursuant to determine all issues in accordance with existing case law and the statutory laws CCP §170.6. Pending appointment of the State of California. The rules of evidence applicable referee, the Court has power to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all issue temporary or provisional remedies.
(iv) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer requested to (a) set the matter for a status and Seller reserve trial-setting conference within fifteen (15) days after the right to receive findings date of factselection of the referee, conclusions (b) if practicable, try all issues of laws, law or fact within ninety (90) days after the date of the conference and (c) report a written statement of decision within twenty (20) days after the matter has been submitted for decision. Any decision rendered by the referee will be final, binding and conclusive, and judgment shall be entered pursuant to CCP §644.
(v) The referee will have power to expand or limit the right amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to move provide requested discovery for a new trialany reason whatsoever. Unless otherwise ordered, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which new trial, if granted, is also cannot be resolved by the parties shall be submitted to the referee whose decision shall be a reference proceeding under this provisionfinal and binding.
Appears in 1 contract
Sources: Security Agreement (National Technical Systems Inc /Ca/)
Judicial Reference. Buyer and Seller each 20.1 The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth in Section 19 herein, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section Section will be applicable until: (ai) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained in Section 19 herein is valid or enforceable; or (bii) the California legislature Legislature passes legislation and the governor of the State of California signs into law a statute authorizing plcpre-dispute jury trial waivers and as a result such waivers became become enforceable. Accordingly.
20.2 Other than the exercise of provisional remedies (any of which may be initiated pursuant to applicable law), Buyer and Seller each knowingly and voluntarily agree that any civil action controversy, dispute or proceeding involving claim (each, a dispute “Claim”) between the parties arising out of or relating to this Agreement, shall Agreement will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and as described herein ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Venue for the reference proceeding will be in the Superior Court or Federal District Court in Los Angeles County, California (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
20.3 The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
20.4 The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (a) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within ninety (90) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
20.5 The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
20.6 Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
20.7 The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section Section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
20.8 If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act Section 1280 through Section 1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
20.9 THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT.
Appears in 1 contract
Sources: Conditional Waiver Agreement (Real Good Food Company, Inc.)
Judicial Reference. Buyer (a) Guarantor and Seller each Agent prefer that any dispute between them be resolved in litigation subject to the a jury trial waiver as set forth hereinin the Transaction Documents (defined below), but the California Supreme Court has held that such pre-dispute waivers of the right to a trial by jury trial waivers not authorized by statute are unenforceable. This section judicial reference provision will be applicable until: (ai) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein in the Transaction Documents is valid or enforceable; or (bii) the California legislature passes legislation and the governor of the State of California signs into law Legislature enacts a statute which becomes law, authorizing plcpre-dispute jury trial waivers and of the type in the Transaction Documents and, as a result result, such waivers became become enforceable. Accordingly.
(b) Other than (i) nonjudicial foreclosure of security interests in personal property, Buyer (ii) the appointment of a receiver or (iii) the exercise of other provisional remedies (any of which may be initiated pursuant to applicable law), any controversy, dispute or claim (each, a “Claim”) between Guarantor and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute Agent arising out of or relating to this AgreementGuaranty or any other document, shall instrument or agreement between Guarantor and Agent (collectively in this Section, the “Transaction Documents”), will be tried solely through resolved, notwithstanding anything to the contrary contained in the Transaction Documents, by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein provided in Paragraph 17 of this Guaranty or as otherwise provided in the Transaction Documents, venue for the reference proceeding will be in the Superior Court or Federal District Court in the County or District where the real property, if any, is located or in a County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(c) The referee shall be a retired Judge or Justice selected by mutual written agreement of the partiesGuarantor and Agent. If the panics Guarantor and Agent do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer Guarantor and Seller Agent agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(d) Guarantor and Agent agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (a) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within ninety (90) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
(e) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, neither Guarantor nor Agent shall be entitled to “priority” in conducting discovery, depositions may be taken by Guarantor and Agent upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by Guarantor and Agent shall be submitted to the referee whose decision shall be final and binding.
(f) Except as expressly set forth in this Guaranty, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, Guarantor and Agent will equally share the cost of the referee and the court reporter at trial.
(g) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision and pursuant to CCP section §644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by law. Buyer Guarantor and Seller Agent reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(h) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted) or if a reference procedure is not available to the parties for any reason, any dispute between Guarantor and Agent that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act § 1280 through § 1294.2 of the CCP as amended from time to time.
(i) GUARANTOR AND AGENT RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, GUARANTOR AND AGENT EACH KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREE THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS.
Appears in 1 contract
Sources: Continuing Guaranty (Westaff Inc)
Judicial Reference. Buyer The Governmental Lender and Seller each the Borrower hereby covenant the following:
(a) The parties prefer that any dispute between them be resolved in litigation subject to the a jury trial waiver as set forth hereinin this Borrower Loan Agreement, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section Section will be applicable until: (ai) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein in Section 8.8 of this Borrower Loan Agreement is valid or enforceable; or (bii) the California legislature Legislature passes legislation and the governor of the State of California signs into law a statute authorizing plcpre-dispute jury trial waivers and as a result such waivers became become enforceable. Accordingly.
(b) Other than the exercise of provisional remedies (any of which may be initiated pursuant to applicable law), Buyer and Seller each knowingly and voluntarily agree that any civil action controversy, dispute or proceeding involving claim (each, a dispute “Claim”) between the parties arising out of or relating to this Agreement, shall Borrower Loan Agreement will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and as described herein ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Venue for the reference proceeding will be in the Superior Court or Federal District Court in the County (the “Judicial ReferenceCourt”). Buyer and Seller further realize that ) unless waived by agreeing to Judicial Reference as provided the Governmental Lender in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the writing.
(c) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. The referee shall be required to determine all issues in accordance with existing case law and the statutory laws Pending appointment of the State of California. The rules of evidence applicable referee, the Court has power to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all issue temporary or provisional remedies.
(d) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and Seller reserve trial- setting conference within fifteen (15) days after the right to receive findings date of factselection of the referee, conclusions (ii) if practicable, try all issues of lawslaw or fact within ninety (90) days after the date of the conference, and (iii) report a written statement of decision within twenty (20) days after the matter has been submitted for decision.
(e) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, and the right including a party’s failure to move provide requested discovery for a new trialany reason whatsoever. Unless otherwise ordered based upon good cause shown, which new trialno party shall be entitled to “priority” in conducting discovery, if granted, is also to depositions may be a reference proceeding under this provision.taken by either party upon seven
Appears in 1 contract
Sources: Loan Agreement
Judicial Reference. Buyer All disputes and Seller each prefer that any dispute between them be resolved in litigation subject to the jury trial waiver set forth hereinclaims arising under this Article 8, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section will be applicable until: (a) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid or enforceable; or (b) the California legislature passes legislation and the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute arising out of or whether relating to this Agreementits interpretation, application, enforcement or breach, shall be tried solely through heard by a judicial reference as provided in sections 638 through 6452 of the Monterey County Superior Court pursuant to California Code of Civil Procedure CCCP”Section 638, et seq., and no Event of Default by Developer may be based solely on a matter that is the subject of such a dispute unless the Developer fails to strictly perform any term of any resulting award or decision in favor of City within five (5) business days after written notice from City. The parties shall have the rights of discovery and as described herein (the “Judicial Reference”)appeal provided by California Code of Civil Procedure Section 638, et seq. Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2For all judicial reference proceedings under this Agreement, the parties will have waived their rights to trial by jury. Buyer City Manager and Seller each further the Developer shall agree that upon a single referee who shall try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the referee shall be a retired Judge circumstances before him or Justice selected by mutual written agreement of the partiesher. If the panics City and Developer are unable to agree on a referee within ten (10) days of a written request to do so by either Party hereto, either Party may seek to have one appointed pursuant to California Code of Civil Procedure Section 640. The cost of such proceeding shall initially be borne equally by the Parties, but shall ultimately be borne by the Party who does not agreeprevail. In addition, the referee prevailing Party in the judicial reference and in any subsequent legal proceeding shall be selected entitled to have its reasonable attorneys’ fees and out-of-pocket costs paid by the Trial Courtnon-prevailing Party. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings Any referee selected pursuant to obtain any form of this section shall be considered a pre-judgment remedy shall not operate as a waiver temporary judge appointed pursuant to Article 6, Section 21 of the parties’ right to trial solely through a Judicial ReferenceCalifornia Constitution. NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED WITHIN THE SCOPE OF THE JUDICIAL REFERENCE PROVISION ABOVE DECIDED BY A request for appointment of a referee may be heard on an ex parte or expedited basisNEUTRAL REFEREE AS PROVIDED BY CALIFORNIA LAW, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not grantedAND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. The referee shall be appointed to sit with all the powers provided by lawBY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL WITH RESPECT TO THE MATTERS SUBJECT TO JUDICIAL REFERENCE, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE JUDICIAL REFERENCE PROVISION. The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of CaliforniaIF YOU REFUSE TO SUBMIT TO JUDICIAL REFERENCE AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO SUBMIT UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceedingYOUR AGREEMENT TO THIS JUDICIAL REFERENCE PROVISION IS VOLUNTARY. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudicationWE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE JUDICIAL REFERENCE PROVISION TO A NEUTRAL REFEREE. The referee shall issue a decision pursuant to CCP section 644 and the refereeDeveloper’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial, which new trial, if granted, is also to be a reference proceeding under this provision.Initials City’s Initials
Appears in 1 contract
Judicial Reference. Buyer and Seller each (i) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth in Section 15(h) herein, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section Section will be applicable until: (ai) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained in Section 15(h) herein is valid or enforceable; or (bii) the California legislature Legislature passes legislation and the governor of the State of California signs into law a statute authorizing plcpre-dispute jury trial waivers and as a result such waivers became become enforceable. Accordingly.
(ii) Other than the exercise of provisional remedies (any of which may be initiated pursuant to applicable law), Buyer and Seller each knowingly and voluntarily agree that any civil action controversy, dispute or proceeding involving claim (each, a dispute “Claim”) between the parties arising out of or relating to this Agreement, shall Agreement will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and as described herein ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Venue for the reference proceeding will be in the Superior Court or Federal District Court in Los Angeles County, California (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(iii) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(iv) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (a) set the matter for a status and trial-setting conference within forty-five (45) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within one hundred twenty (120) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
(v) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon ten (10) days written notice, and all other discovery shall be responded to within twenty (20) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(vi) Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
(vii) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section Section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(viii) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act Section 1280 through Section 1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
(ix) THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT.
Appears in 1 contract
Judicial Reference. Buyer and Seller each (i) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth in Section 15(h) herein, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section Section will be applicable until: (ai) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained in Section 15(h) herein is valid or enforceable; or (bii) the California legislature Legislature passes legislation and the governor of the State of California signs into law a statute authorizing plcpre-dispute jury trial waivers and as a result such waivers became become enforceable. Accordingly.
(ii) Other than the exercise of provisional remedies (any of which may be initiated pursuant to applicable )aw), Buyer and Seller each knowingly and voluntarily agree that any civil action controversy, dispute or proceeding involving claim (each, a dispute "Claim") between the parties arising out of or relating to this Agreement, shall Agreement will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP”) and as described herein ("CCP"), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Venue for the reference proceeding will be in the Superior Court or Federal District Court in Los Angeles County, California (the “Judicial Reference”"Court"). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(iii) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(iv) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (a) set the matter for a status and trial-setting conference within forty-five (45) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within one hundred twenty (120) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
(v) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party's failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to "priority" in conducting discovery, depositions may be taken by either party upon ten (10) days written notice, and all other discovery shall be responded to within twenty (20) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(vi) Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee's power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
(vii) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section Section 644 and the referee’s 's decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(viii) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act Section 1280 through Section 1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
(ix) THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT.
Appears in 1 contract
Judicial Reference. Buyer If and Seller each prefer that any dispute between them be resolved in litigation subject to only if the jury trial waiver set forth hereinin Section 12.1 of this Agreement is invalidated for any reason by a court of law, but statute or otherwise, the California Supreme Court has held that such pre-dispute reference provisions set forth below shall be substituted in place of the jury trial waivers are unenforceablewaiver. This section will So long as the jury trial waiver remains valid, the reference provisions set forth in this Section shall be applicable until: inapplicable.
(a) Each controversy, dispute or claim (each, a “Claim”) between the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid or enforceable; or (b) the California legislature passes legislation and the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement or any Ancillary Agreement, other than (i) all matters in connection with nonjudicial foreclosure of security interests in real or personal property; or (ii) the appointment of a receiver or the exercise of other provisional remedies (any of which may be initiated pursuant to applicable law) that are not settled in writing within fifteen days after the date on which a party to this Agreement or any of the Ancillary Agreements gives written notice to all other parties that a Claim exists (the “Claim Date”) shall be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCPProcedure, or their successor sections (“CCP”) and ), which shall constitute the exclusive remedy for the resolution of any Claim concerning this Agreement or any of the Ancillary Agreements, including whether such Claim is subject to the reference proceeding. Except as described herein set forth in this section, the parties waive the right to initiate legal proceedings against each other concerning each such Claim. Venue for these proceedings shall be in the Superior Court in Los Angeles County (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2By mutual agreement, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the referee shall be select a retired Judge or Justice selected by mutual written agreement of the parties. If Court to serve as referee, and if they cannot so agree within fifteen days after the panics do not agreeClaim Date, the referee parties shall be selected by the Trial Court. Buyer and Seller further agree request that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative) promptly select the referee. A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not granted. The referee shall be appointed to sit as a temporary judge, with all the powers provided for a temporary judge, as authorized by law, and upon selection should take and subscribe to the oath of office as provided for in Rule 244 of the California Rules of Court (or any subsequently enacted Rule). The referee shall be required to determine all issues in accordance with existing case law Purchasers (acting together)) and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee Companies (acting together) shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision each have one peremptory challenge pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial, which new trial, if granted, is also to be a reference proceeding under this provision§ 170.
Appears in 1 contract
Judicial Reference. Buyer (a) Guarantors and Seller each Agent prefer that any dispute between among them be resolved in litigation subject to the a jury trial waiver as set forth hereinin the Transaction Documents (defined below), but the California Supreme Court has held that such pre-dispute waivers of the right to a trial by jury trial waivers not authorized by statute are unenforceable. This section judicial reference provision will be applicable until: (ai) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein in the Transaction Documents is valid or enforceable; or (bii) the California legislature passes legislation and the governor of the State of California signs into law Legislature enacts a statute which becomes law, authorizing plcpre-dispute jury trial waivers and of the type in the Transaction Documents and, as a result result, such waivers became become enforceable. Accordingly.
(b) Other than (i) nonjudicial foreclosure of security interests in personal property, Buyer (ii) the appointment of a receiver or (iii) the exercise of other provisional remedies (any of which may be initiated pursuant to applicable law), any controversy, dispute or claim (each, a “Claim”) among either or both Guarantors and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute Agent arising out of or relating to this AgreementGuaranty or any other document, shall instrument or agreement among either or both Guarantors and Agent (collectively in this Section, the “Transaction Documents”), will be tried solely through resolved, notwithstanding anything to the contrary contained in the Transaction Documents, by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein provided in Paragraph 17 of this Guaranty or as otherwise provided in the Transaction Documents, venue for the reference proceeding will be in the Superior Court or Federal District Court in the County or District where the real property, if any, is located or in a County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(c) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver of the parties’ right to trial solely through a Judicial Reference. A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not granted. The referee shall be appointed to sit with all the powers provided by law. The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision pursuant to CCP section 644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trial, which new trial, if granted, is also to be a reference proceeding under this provision.Guarantor(s)
Appears in 1 contract
Sources: Continuing Guaranty (Westaff Inc)
Judicial Reference. Buyer and Seller each (i) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth hereinin Section 10.10(a) of this Agreement, but the California Supreme Court has held that such pre-dispute jury trial waivers Jury Trial Waivers not authorized by statute are unenforceable. This section will Reference Provision shall be applicable until: :
(aA) the California Supreme Court holds that a pre-dispute jury trial waiver Jury Trial Waiver provision similar to that contained set forth herein is valid or enforceable; or or
(bB) the California legislature passes legislation and the governor Legislature enacts a statute which becomes law, authorizing pre-dispute Jury Trial Waivers of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and type set forth herein and, as a result result, such waivers became become enforceable. Accordingly.
(ii) Other than (A) nonjudicial foreclosure of security interests in real or personal property, Buyer and Seller each knowingly and voluntarily agree that (B) the appointment of a receiver or (C) the exercise of other provisional remedies (any civil action of which may be initiated pursuant to applicable law), any controversy, dispute or proceeding involving claim (each, for purposes of this Section, a dispute “Claim”) between the parties arising out of or relating to this Agreement, the Loan Documents, a Swap Agreement or any other document, instrument or agreement between the Bank and the Borrower (collectively in this Section, the “Documents”), shall be tried solely through resolved by a judicial reference proceeding in California in accordance with the provisions of Section 638 et seq. of the CCP, or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as otherwise provided in sections 638 through 6452 of the California Code of Civil Procedure CCCP”) and as described herein Documents, venue for the reference proceeding shall be in a County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(iii) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(iv) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (A) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (B) if practicable, try all issues of law or fact within ninety (90) days after the date of the conference and (C) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
(v) The referee shall have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon ten (10) days written notice, and all other discovery shall be responded to within twenty (20) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(vi) Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter shall be used at any hearing conducted before the referee, and the referee shall be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties shall equally share the cost of the referee and the court reporter at trial.
(vii) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will shall be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will shall be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision and pursuant to CCP section §644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(viii) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure shall be resolved and determined by arbitration. The arbitration shall be conducted by a retired judge or Justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding.
Appears in 1 contract
Sources: Credit Agreement (Actuate Corp)
Judicial Reference. Buyer and Seller each (a) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth hereinin this Agreement, the Notes or the other Loan Documents (“Jury Trial Waiver”), but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceableJury Trial Waiver may not be enforceable under certain circumstances. This section will be applicable until: (a) In the California Supreme Court holds that a pre-dispute jury trial waiver provision similar event the Jury Trial Waiver is not enforceable, the parties elect to that contained herein is valid or enforceable; or proceed under this Reference Provision.
(b) Other than (i) nonjudicial foreclosure of security interests in real or personal property and self-help remedies, (ii) the California legislature passes legislation and appointment of a receiver or (iii) the governor exercise of other provisional remedies (any of which may be initiated pursuant to applicable law), any controversy, dispute or claim (each, a “Claim”) between the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement, shall the Notes or the other Loan Documents, will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein otherwise provided in this Agreement, the Notes or the other Loan Documents, venue for the reference proceeding will be in the Superior Court or Federal District Court in the County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(c) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Each party shall have one peremptory challenge pursuant to CCP §170.6. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(d) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested to (a) set the matter for a status and trial- setting conference within fifteen (15) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within ninety (90) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision. Any decision rendered by the referee will be final, binding and conclusive, and judgment shall be entered pursuant to CCP §644.
(e) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(f) Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
(g) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudicationadjudication . The referee shall issue a decision pursuant to CCP section 644 and at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. The referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by lawreferee. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(h) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding. THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY, AND THAT THEY ARE IN EFFECT WAIVING THEIR RIGHT TO TRIAL BY JURY IN AGREEING TO THIS REFERENCE PROVISION. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS.
Appears in 1 contract
Sources: Credit Agreement (National Technical Systems Inc /Ca/)
Judicial Reference. Buyer and Seller each (a) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth hereinin Section 11.7 of this Agreement, but the California Supreme Court has held that such pre-dispute jury trial waivers Jury Trial Waivers not authorized by statute are unenforceable. This section will Reference Provision shall be applicable until: :
(ai) the California Supreme Court holds that a pre-dispute jury trial waiver Jury Trial Waiver provision similar to that contained set forth herein is valid or enforceable; or or
(ii) the California Legislature enacts a statute which becomes law, authorizing pre-dispute Jury Trial Waivers of the type set forth herein and, as a result, such waivers become enforceable.
(b) Other than (i) nonjudicial foreclosure of security interests in real or personal property, (ii) the California legislature passes legislation and appointment of a receiver or (iii) the governor exercise of other provisional remedies (any of which may be initiated pursuant to applicable law), any controversy, dispute or claim (each, for purposes of this Section, a “Claim”) between the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement, the Loan Documents, a Swap Contract or any other document, instrument or agreement between the Bank and the Borrower (collectively in this Section, the “Documents”), shall be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein otherwise provided in the Documents, venue for the reference proceeding shall be in the Superior Court or Federal District Court in the County or District where the real property, if any, is located or in a County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(c) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(d) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested, subject to change in the time periods specified herein for good cause shown, to (i) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues of law or fact within ninety (90) days after the date of the conference and (iii) report a statement of decision within twenty (20) days after the matter has been submitted for decision.
(e) The referee shall have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based upon good cause shown, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(f) Except as expressly set forth in this Agreement, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter shall be used at any hearing conducted before the referee, and the referee shall be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee’s power to award costs to the prevailing party, the parties shall equally share the cost of the referee and the court reporter at trial.
(g) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will shall be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will shall be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudication. The referee shall issue a decision and pursuant to CCP section §644 and the referee’s decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(h) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure shall be resolved and determined by arbitration. The arbitration shall be conducted by a retired judge or Justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding. THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION SHALL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION SHALL APPLY TO ANY DISPUTE BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT OR THE DOCUMENTS.
Appears in 1 contract
Sources: Term Loan Agreement (Solarcity Corp)
Judicial Reference. Buyer and Seller each (i) The parties prefer that any dispute between them be resolved in litigation subject to the jury trial waiver a Jury Trial Waiver as set forth hereinin this Guaranty (“Jury Trial Waiver”), but the California Supreme Court has held that such preJury Trial Waiver may not be enforceable under certain circumstances. In the event the Jury Trial Waiver is not enforceable, the parties elect to proceed under this Reference Provision.
(ii) Other than (i) nonjudicial foreclosure of security interests in real or personal property and self-dispute jury trial waivers are unenforceable. This section will be applicable until: help remedies, (aii) the California Supreme Court holds that appointment of a pre-dispute jury trial waiver provision similar to that contained herein is valid or enforceable; receiver or (biii) the California legislature passes legislation and exercise of other provisional remedies (any of which may be initiated pursuant to applicable law), any controversy, dispute or claim (each, a “Claim”) between the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Agreement, shall Guaranty or any other Loan Document will be tried solely through resolved by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 et seq. of the California Code of Civil Procedure CCCP(“CCP”) and ), or their successor sections, which shall constitute the exclusive remedy for the resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except as described herein otherwise provided in the Guaranty, venue for the reference proceeding will be in the Superior Court or Federal District Court in the County or District where venue is otherwise appropriate under applicable law (the “Judicial ReferenceCourt”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2, the parties will have waived their rights to trial by jury. Buyer and Seller each further agree that the .
(iii) The referee shall be a retired Judge or Justice selected by mutual written agreement of the parties. If the panics parties do not agree, the referee shall be selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial ReferenceCourt (or his or her representative). A request for appointment of a referee may be heard on an ex parte or expedited basis, and Buyer and Seller the parties agree that irreparable harm would result if ex pane parte relief is not granted. The referee shall be appointed to sit with all the powers provided by law. Each party shall have one peremptory challenge pursuant to CCP §170.6. Pending appointment of the referee, the Court has power to issue temporary or provisional remedies.
(iv) The parties agree that time is of the essence in conducting the reference proceedings. Accordingly, the referee shall be requested to (a) set the matter for a status and trial-setting conference within fifteen (15) days after the date of selection of the referee, (b) if practicable, try all issues of law or fact within ninety (90) days after the date of the conference and (c) report a statement of decision within twenty (20) days after the matter has been submitted for decision. Any decision rendered by the referee will be final, binding and conclusive, and judgment shall be entered pursuant to CCP §644.
(v) The referee will have power to expand or limit the amount and duration of discovery. The referee may set or extend discovery deadlines or cutoffs for good cause, including a party's failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered, no party shall be entitled to “priority” in conducting discovery, depositions may be taken by either party upon seven (7) days written notice, and all other discovery shall be responded to within fifteen (15) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding.
(vi) Except as expressly set forth in this Section, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the referee, and the referee will be provided a courtesy copy of the transcript. The party making such a request shall have the obligation to arrange for and pay the court reporter. Subject to the referee's power to award costs to the prevailing party, the parties will equally share the cost of the referee and the court reporter at trial.
(vii) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable orders that will be binding on the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudicationadjudication . The referee shall issue a decision pursuant to CCP section 644 and at the close of the reference proceeding which disposes of all claims of the parties that are the subject of the reference. The referee’s 's decision shall be entered by the Court as a judgment or an order in the same manner as if the action had been tried by the Court. The parties reserve the right to appeal from the final judgment or order or from any appealable decision or order entered by the referee shall be fully appealable as provided by lawreferee. Buyer and Seller The parties reserve the right to receive findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(viii) If the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by reference procedure will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act §1280 through §1294.2 of the CCP as amended from time to time. The limitations with respect to discovery set forth above shall apply to any such arbitration proceeding. THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY, AND THAT THEY ARE IN EFFECT WAIVING THEIR RIGHT TO TRIAL BY JURY IN AGREEING TO THIS REFERENCE PROVISION. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE AMONG THEM WHICH ARISES OUT OF OR IS RELATED TO THE GUARANTY.
Appears in 1 contract
Sources: Revolving Credit Agreement (Bridgepoint Education Inc)
Judicial Reference. Buyer and Seller each prefer that any dispute between them be resolved in litigation subject to the jury trial waiver set forth herein, but the California Supreme Court has held that such pre-dispute jury trial waivers are unenforceable. This section will be applicable until: (a) the California Supreme Court holds that a pre-dispute jury trial waiver provision similar to that contained herein is valid Other than (i) nonjudicial foreclosure and all matters in connection therewith regarding security interests in real or enforceablepersonal property; or (bii) the California legislature passes legislation appointment of a receiver, or the exercise of other provisional remedies (any and all of which may be initiated pursuant to applicable law), each controversy, dispute or claim between the governor of the State of California signs into law a statute authorizing plc-dispute jury trial waivers and as a result such waivers became enforceable. Accordingly, Buyer and Seller each knowingly and voluntarily agree that any civil action or proceeding involving a dispute parties arising out of or relating to this Credit Agreement, shall any General Security Agreement executed by Borrower in favor of Bank or any Note executed by Borrower in favor of Bank (collectively in this Section 6.02, the "Agreement") which controversy, dispute or claim is not settled in writing within thirty (30) days after the "CLAIM DATE" (defined as the date on which a party subject to this Agreement gives written notice to all other parties that a controversy, dispute or claim exists), will be tried solely through settled by a judicial reference as provided proceeding in sections California in accordance with the provisions of Section 638 through 6452 ET SEQ. of the California Code of Civil Procedure CCCP”) Procedure, or their successor section ("CCP"), which shall constitute the exclusive remedy for the settlement of any controversy, dispute or claim concerning this Agreement, including whether such controversy, dispute or claim is subject to the reference proceeding and except as described herein (the “Judicial Reference”). Buyer and Seller further realize that by agreeing to Judicial Reference as provided in CCP sections 638 through 645.2set forth above, the parties will have waived waive their rights to trial by juryinitiate any legal proceedings against each other in any court or jurisdiction other than the Superior Court in the County where the Real Property, if any, is located or Los Angeles County if none (the "Court"). Buyer and Seller each further agree that the The referee shall be a retired Judge or Justice of the Court selected by mutual written agreement of the parties. If , and if they cannot so agree within forty-five (45) days after the panics do not agreeClaim Date, the referee shall be promptly selected by the Trial Court. Buyer and Seller further agree that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver Presiding Judge of the parties’ right to trial solely through a Judicial Reference. A request for appointment of a referee may be heard on an ex parte Court (or expedited basis, and Buyer and Seller agree that irreparable harm would result if ex pane relief is not grantedhis representative). The referee shall be appointed to sit as a temporary judge, with all of the powers provided for a temporary judge, as authorized by law, and upon selection should take and subscribe to the oath of office as provided for in Rule 244 of the California Rules of Court (or any subsequently enacted Rule). Each party shall have one peremptory challenge pursuant to CCP Section 170.6. The referee shall (a) be requested to set the matter for hearing within sixty (60) days after the date of selection of the referee and (b) try any and all issues of law or fact and report a statement of decision upon them, if possible, within ninety (90) days of the Claim Date. Any decision rendered by the referee will be final, binding and conclusive and judgment shall be entered pursuant to CCP Section 644 in any court in the State of California having jurisdiction. Any party may apply for a reference proceeding at any time after thirty (30) days following notice to any other party of the nature of the controversy, dispute or claim, by filing a petition for a hearing and/or trial. All discovery permitted by this Section 6.02 shall be completed no later than fifteen (15) days before the first hearing date established by the referee. The referee may extend such period in the event of a party's refusal to provide requested discovery for any reason whatsoever, including, without limitation, legal objections raised to such discovery or unavailability of a witness due to absence or illness. No party shall be entitled to "priority" in conducting discovery. Depositions may be taken by either party upon seven (7) days written notice, and request for production or inspection of documents shall be responded to within ten (10) days after service. All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the referee whose decision shall be final and binding upon the parties. Pending appointment of the referee as provided herein, the Superior Court is empowered to issue temporary and/or provisional remedies, as appropriate.
(b) Except as expressly set forth in this Section 6.02, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of all hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter except that when any party so requests, a court reporter will be used at any hearing conducted before the referee. The party making such a request shall have the obligation to arrange for and pay for the court reporter. The costs of the court reporter at the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, to provide all temporary or and/or provisional remedies, remedies and to enter equitable orders that will be binding on upon the parties and rule on any motion which would be authorized in a trial, including without limitation motions for summary judgment or summary adjudicationparties. The referee shall issue a decision pursuant to CCP section 644 and single judgment at the referee’s decision close of the reference proceeding which shall be entered by dispose of all of the Court as a judgment or an order in claims of the same manner as if parties that are the action had been tried by subject of the Courtreference. The final judgment or order entered by the referee shall be fully appealable as provided by law. Buyer and Seller parties hereto expressly reserve the right to receive contest or appeal from the final judgment or any appealable order or appealable judgment entered by the referee. The parties hereto expressly reserve the right to findings of fact, conclusions of laws, a written statement of decision, and the right to move for a new trialtrial or a different judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
(d) In the event that the enabling legislation which provides for appointment of a referee is repealed (and no successor statute is enacted), any dispute between the parties that would otherwise be determined by the reference procedure herein described will be resolved and determined by arbitration. The arbitration will be conducted by a retired judge of the Court, in accordance with the California Arbitration Act, Section 1280 through Section 1294.2 of the CCP as amended from time to time. The limitations with respect to discovery as set forth hereinabove shall apply to any such arbitration proceeding. This Agreement is executed on behalf of the parties by duly authorized representatives as of April 6, 1998. IMPERIAL BANK ("BANK") By: /s/ ▇▇▇ ▇▇▇▇▇▇▇ ----------------------------- ▇▇▇ ▇▇▇▇▇▇▇, Vice President Date: COLLATERAL THERAPEUTICS, INC. ("BORROWED") By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ----------------------------- Date: 4/30/98 ----------------------------- [LOGO] GENERAL SECURITY AGREEMENT IMPERIAL BANK (TANGIBLE AND INTANGIBLE PERSONAL PROPERTY) Member FDIC This Agreement is executed on APRIL 6, 1998, by COLLATERAL THERAPEUTICS, INC. (hereinafter called "Obligor"). In consideration of financial accommodations given, to be given, or continued, the Obligor grants to IMPERIAL BANK (hereinafter called "Bank") a security interest in (a) all property (i) delivered to Bank by Obligor, (ii) which shall be in Bank's possession or control in any matter or for any purpose, (iii) described below, (iv) now owned or hereafter acquired by Obligor of the type or class described below and/or any supplementary schedule hereto, or in any financing statement filed by Bank and executed by or on behalf of Obligor; (b) all deposits accounts of Obligor at Bank and (c) the proceeds, increase and products of such property, all accessions thereto, and all property which Obligor may receive on account of such collateral which Obligor will immediately deliver to Bank (collectively referred to as "Collateral") to secure payment and performance of all of Obligor's present or future debts or obligations to Bank, whether absolute or contingent (hereafter referred to as "Debt"). Unless otherwise defined, words used herein have the meanings given them in the California Uniform Commercial Code.
Appears in 1 contract