Common use of shall apply Clause in Contracts

shall apply. Upon demand of any party hereto, whether made before or after institution of any judicial proceeding, any judicial proceeding, any dispute, claim or controversy arising out of, connected with or relating to this Agreement and other Loan Documents ("Disputes") between or among the parties to this Agreement shall be resolved by binding arbitration as provided herein. Institution of a judicial proceeding by a party does not waive the right of that party to demand arbitration hereunder. Disputes may include, without limitation, tort claims, counterclaims, disputes as to whether a matter is subject to arbitration, claims brought as class actions, claims arising from Loan Documents executed in the future, or claims arising out of or connected with the transaction reflected by this Agreement. Arbitration shall be conducted under the governed by the Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All arbitration hearings shall be conducted in Mecklenburg County, North Carolina. The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be applicable to claims of less that $1,000,000. All applicable statutes of limitation shall apply to any Dispute. A judgement upon the award may be entered in any court having jurisdiction. The panel from which all arbitrators are selected shall be comprised of licensed attorneys. The single arbitrator selected for expedited procedure shall be a retired 72 79 judge from the highest court of general jurisdiction, state or federal, of the state where the hearing will be conducted or if such person is not available to serve, the single arbitrator may be a licensed attorney. Notwithstanding the foregoing, this arbitration provision does not apply to disputes under or related to swap agreements. Notwithstanding the preceding binding arbitration provisions, Agent, the Lenders and the Borrowers agree to preserve, without diminution, certain remedies that any party hereto may employ or exercise freely, independently or in connection with an arbitration proceeding or after an arbitration action is brought. Agent, the Lenders and the Borrowers shall have the right to proceed in any count of proper jurisdiction or by self-help to exercise or prosecute the following remedies, as applicable: (i) all rights to foreclose against any real or personal property or other security by exercising a power of sale granted under Loan Documents or under applicable law or by judicial foreclosure and sale, including a proceeding to confirm the sale; (ii) all rights of self-help including peaceful occupation of real property and collection of rents, set-off, and peaceful possession of personal property; (iii) obtain provisional or ancillary remedies including injunctive relief, sequestration, garnishment, attachment, appointment of receiver and filing an involuntary bankruptcy proceeding and (iv) when applicable, a judgment by confession of judgment. Preservation of these remedies does not limit the power of an arbitrator to grant similar remedies that may be requested by a party in a Dispute. Agent, the Lenders and the Borrowers agree that they shall not have a remedy of punitive or exemplary damages against the other in any Dispute and hereby waive any right or claim to punitive or exemplary damages they have now or which may arise in the future in connection with any Dispute whether the Dispute is resolved by arbitration or judicially.

shall apply. Upon demand of any party hereto, whether made before or after institution of any judicial proceeding, any judicial proceeding, any dispute, claim or controversy arising out of, connected with or relating to this Agreement Loan Agreement, the Notes and any other Loan Documents ("Disputes") between or among the parties to this Agreement parties, shall be resolved by binding arbitration as provided herein. Institution of a judicial proceeding by a party does not waive the right of that party to demand arbitration hereunder. Disputes may include, without limitation, tort claims, counterclaims, disputes as to whether a matter is subject to arbitration, claims brought as class actions, claims arising from Loan Documents executed in the future, or claims concerning any aspect of the past, present or future relationships arising out of or connected with the transaction reflected by this AgreementLoan Documents. Arbitration shall be conducted under the and governed by the Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All arbitration hearings shall be conducted in Mecklenburg CountyCharlotte, North Carolina. The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be applicable to claims of less that than $1,000,000. All applicable statutes of limitation shall apply to any Dispute. A judgement judgment upon the award may be entered in any court having jurisdiction. The panel from which all arbitrators are selected shall be comprised of licensed attorneys. The single arbitrator selected for expedited procedure shall be a retired 72 79 judge from the highest court of general jurisdiction, state or federal, of the state where the hearing will be conducted or if such person is not available to serve, conducted. The arbitrators shall be appointed as provided in the single arbitrator may be a licensed attorney. Notwithstanding the foregoing, this arbitration provision does not apply to disputes under or related to swap agreementsArbitration Rules. Notwithstanding the preceding binding arbitration provisions, Agentthe Lenders, the Lenders Agent and the Borrowers agree to Borrower preserve, without diminution, certain remedies that any party hereto may employ or exercise freely, independently either alone, in conjunction with or in connection with an arbitration proceeding or after an arbitration action is broughtduring a Dispute. Agent, the Lenders and the Borrowers Any party hereto shall have the right to proceed in any count court of proper jurisdiction or by self-self help to exercise or prosecute the following remedies, as applicable: (i) all rights to foreclose against any real or personal property or other security by exercising a power of sale granted under in the Loan Documents or under applicable law or by judicial foreclosure and sale, including a proceeding to confirm the sale; , (ii) all rights of self-self help including peaceful occupation of real property and collection of rents, set-off, set off and peaceful possession of personal property; , (iii) obtain obtaining provisional or ancillary remedies including injunctive relief, sequestrationrequestration, garnishment, attachment, appointment of a receiver and filing an involuntary bankruptcy proceeding proceeding, and (iv) when applicable, a judgment by confession of judgment. Preservation of these remedies does not limit the power of an arbitrator to grant similar remedies that may be requested by a party in a Dispute. AgentNotwithstanding the foregoing, the Lenders and the Borrowers agree that they shall this arbitration provision does not have a remedy of punitive apply to disputes under or exemplary damages against the other in related to any Dispute and hereby waive any right or claim to punitive or exemplary damages they have now or which may arise in the future in connection with any Dispute whether the Dispute is resolved by arbitration or judiciallySwap Agreement.