6.8
WAIVER OF JURY TRIAL.
WITHOUT
INTENDING IN ANY WAY TO LIMIT THE PARTIES' AGREEMENT TO SUBMIT TO JUDICIAL
REFERENCE OR ARBITRATION ANY "DISPUTE" (AS DEFINED IN SECTION 1.2(A)) AS SET
FORTH IN THE CREDIT AGREEMENT, GRANTOR, HOLDER AND
33
LENDERS WAIVE TRIAL BY JURY IN RESPECT OF ANY AND ALL "DISPUTES" AND ANY ACTION
ON ANY "DISPUTE."
THIS WAIVER SHALL APPLY TO THE EXTENT ANY "DISPUTE" IS NOT
SUBMITTED TO JUDICIAL REFERENCE OR ARBITRATION, OR IS DEEMED BY THE ARBITRATOR,
REFEREE OR ANY COURT WITH JURISDICTION TO BE NOT REQUIRED TO BE DETERMINED BY
JUDICIAL REFERENCE OR ARBITRATION, OR NOT SUSCEPTIBLE OF BEING SO DETERMINED.
THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY GRANTOR, HOLDER AND
LENDERS, AND GRANTOR, HOLDER AND LENDERS HEREBY REPRESENT THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS
EFFECT.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO
THE LOAN DOCUMENTS.
GRANTOR, HOLDER AND LENDERS ARE EACH HEREBY AUTHORIZED TO
FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER OF JURY TRIAL.
GRANTOR FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN
REPRESENTED IN THE SIGNING OF THIS DEED OF TRUST AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT
IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
SECTION 6.9
SUBROGATION TO EXISTING LIENS;
VENDOR'S LIEN.
TO THE EXTENT THAT PROCEEDS OF THE LOAN ARE USED TO PAY
INDEBTEDNESS SECURED BY ANY OUTSTANDING LIEN, SECURITY INTEREST, CHARGE OR PRIOR
ENCUMBRANCE AGAINST THE PROPERTY, SUCH PROCEEDS HAVE BEEN ADVANCED BY HOLDER AND
LENDERS AT BORROWERS' REQUEST, AND HOLDER AND LENDERS SHALL BE SUBROGATED TO ANY
AND ALL RIGHTS, SECURITY INTERESTS AND LIENS OWNED BY ANY OWNER OR HOLDER OF
SUCH OUTSTANDING LIENS, SECURITY INTERESTS, CHARGES OR ENCUMBRANCES, HOWEVER
REMOTE, REGARDLESS OF WHETHER SAID LIENS, SECURITY INTERESTS, CHARGES OR
ENCUMBRANCES ARE RELEASED, AND ALL OF THE SAME ARE RECOGNIZED AS VALID AND
SUBSISTING AND ARE RENEWED AND CONTINUED AND MERGED HEREIN TO SECURE THE SECURED
INDEBTEDNESS, BUT THE TERMS AND PROVISIONS OF THIS DEED OF TRUST SHALL GOVERN
AND CONTROL THE MANNER AND TERMS OF ENFORCEMENT OF THE LIENS, SECURITY
INTERESTS, CHARGES AND ENCUMBRANCES TO WHICH HOLDER AND LENDERS ARE SUBROGATED
HEREUNDER.
IT IS EXPRESSLY UNDERSTOOD THAT, IN CONSIDERATION OF THE PAYMENT OF
SUCH INDEBTEDNESS BY HOLDER AND LENDERS, GRANTOR HEREBY WAIVES AND RELEASES ALL
DEMANDS AND CAUSES OF ACTION FOR OFFSETS AND PAYMENTS IN CONNECTION WITH SAID
INDEBTEDNESS.
IF ALL OR ANY PORTION OF THE PROCEEDS OF THE LOAN OR OF ANY OTHER
SECURED INDEBTEDNESS HAS BEEN ADVANCED FOR THE PURPOSE OF PAYING THE PURCHASE
PRICE FOR ALL OR A PART OF THE PROPERTY, NO VENDOR'S LIEN IS WAIVED; AND HOLDER
SHALL HAVE, AND IS HEREBY GRANTED, FOR