Exhibit 10.66
ARBITRATION AND NOTICE OF
FINAL AGREEMENT
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To:
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U.S. Home
Systems, Inc.
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405 State Highway 121
Bypass
Building A, Suite 250
Lewisville, Texas 75067
(collectively, whether one or more,
“ Borrower ”)
As of the effective date of this
Notice, Borrower and THE FROST NATIONAL BANK, a national banking
association (“ Lender ”) have consummated a
transaction pursuant to which Lender has agreed to renew and extend
an existing loan or loans to Borrower in the principal amounts of
$2,000,000.00 and $999,999.90 and/or to otherwise extend credit or
make financial accommodations to or for the benefit of Borrower
(collectively, whether one or more, the “ Loan
”).
ARBITRATION
Upon written request of either
Lender or Borrower, any controversy or claim between or among the
parties hereto including but not limited to those arising out of or
relating to the Loan, any of the loan documents or any related
agreements or instruments executed in connection with the Loan (the
“ Loan Documents ”), including any claim based
on or arising from an alleged tort, shall be determined by binding
arbitration in accordance with the Federal Arbitration Act (or if
not applicable, the applicable state law), the Commercial
Arbitration Rules of the American Arbitration Association, and the
“Special Rules” set forth below unless both Lender and
Borrower, in their respective sole discretion, agree in writing to
mediate the dispute prior to submitting to binding arbitration. In
the event of any inconsistency, the Special Rules shall control.
Judgment upon any arbitration award may be entered in any court
having jurisdiction. Any party to this Agreement may bring an
action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim to which this agreement
applies in any court having jurisdiction over such action. The
party that requests arbitration has the burden to initiate the
arbitration proceedings pursuant to and by complying with the
Commercial Arbitration Rules of the American Arbitration
Association and shall pay all associated administrative and filing
fees.
The arbitration shall be conducted
in the City of San Antonio, Bexar County, Texas and administered by
the American Arbitration Association. All arbitration hearings will
be commenced within sixty (60) days of the written request for
arbitration, and if the arbitration hearing is not commenced within
the sixty (60) days, the party that requested arbitration
shall have waived its election to arbitrate. Nothing in this
Agreement shall be deemed to (i) limit the applicability of
any otherwise applicable statutes of limitation or repose and any
waivers contained in this Agreement; or (ii) be a waiver by
Lender of the protection afforded to it by 12 U.S.C. Sec. 91 or any
substantially equivalent state law; or (iii) limit the right
of Lender hereto (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose against any
real or personal property collateral in accordance with applicable
law, or (C) to obtain from a court provisional or ancillary
remedies such as (but not limited to) injunctive relief or the
appointment of a receiver in accordance with applicable law. Lender
may exercise such self help remedies, foreclose upon such property,
or obtain such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought pursuant
to this Agreement or any other Loan Document. At Lender’s
option, foreclosure under a deed of trust or mortgage may be
accomplished by any of the following: the exercise of a power of
sale under the deed of trust or mortgage, or by judicial sale under
the deed of trust or mortgage, or by judicial foreclosure. Neither
this exercise of self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or
ancillary remedies shall constitute a waiver of the right of any
party, including the claimant in any such action, to arbitrate the
merits of the controversy or claim occasioning resort to such
remedies.
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ARBITRATION
AND NOTICE OF FINAL AGREEMENT
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