LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT
LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF
MORTGAGEE RELATING TO THE ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN
DOCUMENTS EVIDENCING AND/OR SECURING THE LOAN, AND AGREE THAT NEITHER PARTY WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED.
EXCEPT AS PROHIBITED BY LAW, MORTGAGOR HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES.
MORTGAGOR CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF MORTGAGEE HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT MORTGAGEE
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR MORTGAGEE TO ACCEPT THIS
MORTGAGE AND MAKE THE LOAN.
Section 9.17
Choice of Law.
This Note and its validity, enforcement and interpretation shall be governed by
the laws of the State of New York (without regard to any principles of conflicts
of laws) and applicable United States federal law.
MORTGAGOR AGREES THAT ANY
SUIT FOR THE ENFORCEMENT OF THIS MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS MAY
BE BROUGHT IN THE COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBURG
COUNTY AND OF UNITED STATES FEDERAL COURT IN THE WESTERN DISTRICT OF NORTH
CAROLINA AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE
OF PROCESS IN ANY SUCH SUIT BEING MADE UPON MORTGAGOR BY MAIL AT THE ADDRESS SET
FORTH IN THIS MORTGAGE.
MORTGAGOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT FORUM.
Section 9.18
Time of Essence.
It is specifically agreed that time is of the essence as to all matters provided
for in this Mortgage.
Section 9.19
Survival of Warranties and Covenants.
The warranties, representations, covenants and agreements set forth in this
Mortgage shall survive the making of the Loan and the execution and delivery of
the Note, and shall continue in full force and effect until all of the
Obligations shall have been paid and performed in full.
Section 9.20
Dispute Resolution.
(a)
Arbitration.
Except to the extent expressly provided below, any Dispute shall,
upon the request of either party, be determined by binding arbitration in
accordance with the Federal Arbitration Act, Title 9, United States Code (or if
not applicable, the applicable state law), the then current rules for
arbitration of financial services disputes of the American Arbitration
Association "AAA" and the "Special Rules" set forth below.
In the event of any
inconsistency, the Special Rules shall control.
The filing of a court action is
not intended to constitute a waiver of the right of Mortgagor