LITIGATION
SHALL BE DEEMED PERSONAL SERVICE AND ACCEPTANCE BY BORROWER FOR ALL PURPOSES OF
SUCH LITIGATION.
13.3
JURY WAIVER.
IT IS MUTUALLY AGREED BY AND
BETWEEN LENDER AND BORROWER THAT THEY EACH WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER PARTY ON
ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS CREDIT
AGREEMENT, THE REVOLVING NOTE, OR THE OTHER LOAN DOCUMENTS.
13.4
ARBITRATION.
NOTWITHSTANDING THE PROVISIONS OF
SECTIONS 13.2 AND 13.3 HEREOF, THE PARTIES HERETO AGREE, UPON DEMAND BY EITHER
PARTY, TO SUBMIT TO BINDING ARBITRATION ALL CLAIMS, DISPUTES AND CONTROVERSIES
BETWEEN OR AMONG THEM (AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS,
ATTORNEYS, AND OTHER AGENTS), WHETHER IN TORT, CONTRACT OR OTHERWISE ARISING OUT
OF OR RELATING TO IN ANY WAY (A) THE LOANS AND RELATED LOAN DOCUMENTS WHICH ARE
THE SUBJECT OF THIS CREDIT AGREEMENT AND ITS NEGOTIATION, EXECUTION,
COLLATERALIZATION, ADMINISTRATION, REPAYMENT, MODIFICATION, EXTENSION,
SUBSTITUTION, FORMATION, INDUCEMENT, ENFORCEMENT, DEFAULT OR TERMINATION; OR
(B) REQUESTS FOR ADDITIONAL CREDIT.
13.4.1 GOVERNING RULES.
ANY ARBITRATION PROCEEDING WILL (A) PROCEED IN A
LOCATION IN COLORADO SELECTED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA");
(B) BE GOVERNED BY THE FEDERAL ARBITRATION ACT (TITLE 9 OF THE UNITED STATES
CODE), NOTWITHSTANDING ANY CONFLICTING CHOICE OF LAW PROVISION IN ANY OF THE
DOCUMENTS BETWEEN THE PARTIES; AND (C) BE CONDUCTED BY THE AAA, OR SUCH OTHER
ADMINISTRATOR AS THE PARTIES SHALL MUTUALLY AGREE UPON, IN ACCORDANCE WITH THE
AAA'S COMMERCIAL DISPUTE RESOLUTION PROCEDURES, UNLESS THE CLAIM OR COUNTERCLAIM
IS AT LEAST $1,000,000.00 EXCLUSIVE OF CLAIMED INTEREST,
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ARBITRATION FEES AND COSTS IN WHICH CASE THE ARBITRATION SHALL BE CONDUCTED IN
ACCORDANCE WITH THE AAA'S OPTIONAL PROCEDURES FOR LARGE, COMPLEX COMMERCIAL
DISPUTES (THE COMMERCIAL DISPUTE RESOLUTION PROCEDURES OR THE OPTIONAL
PROCEDURES FOR LARGE, COMPLEX COMMERCIAL DISPUTES TO BE REFERRED TO, AS
APPLICABLE, AS THE "RULES").
IF THERE IS ANY INCONSISTENCY BETWEEN THE TERMS
HEREOF AND THE RULES, THE TERMS AND PROCEDURES SET FORTH HEREIN SHALL CONTROL.
ANY PARTY WHO FAILS OR REFUSES TO SUBMIT TO ARBITRATION FOLLOWING A DEMAND BY
ANY OTHER PARTY SHALL BEAR ALL COSTS AND EXPENSES INCURRED BY SUCH OTHER PARTY
IN COMPELLING ARBITRATION OF ANY DISPUTE.
NOTHING CONTAINED HEREIN SHALL BE
DEEMED TO BE A WAIVER BY ANY PARTY THAT IS A BANK OF THE PROTECTIONS AFFORDED TO
IT UNDER 12 U.S.C. §91 OR ANY SIMILAR APPLICABLE STATE LAW.
13.4.2 NO WAIVER OF PROVISIONAL REMEDIES, SELF-HELP AND FORECLOSURE.
THE
ARBITRATION REQUIREMENT DOES NOT LIMIT THE RIGHT OF ANY PARTY TO (A) FORECLOSE
AGAINST REAL OR PERSONAL PROPERTY COLLATERAL; (B) EXERCISE SELF-HELP REMEDIES
RELATING TO COLLATERAL OR PROCEEDS OF COLLATERAL SUCH AS SETOFF OR REPOSSESSION;
OR (C) OBTAIN PROVISIONAL OR ANCILLARY REMEDIES SUCH AS REPLEVIN, INJUNCTIVE
RELIEF, ATTACHMENT OR THE APPOINTMENT OF A RECEIVER, BEFORE DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING.
THIS EXCLUSION DOES NOT CONSTITUTE A
WAIVER OF THE RIGHT OR OBLIGATION OF ANY PARTY TO SUBMIT ANY DISPUTE TO
ARBITRATION OR REFERENCE HEREUNDER, INCLUDING THOSE ARISING