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EXHIBIT 5 <br />shall determine all issues relating to the applicability, interpretation, legality and enforceability of the <br />Borrower Loan Documents or Funding Loan Documents. The referee shall report a statement of decision <br />to the court. The Bank and Subordinating Party shall equally bear the fees and expenses of the referee, <br />unless the referee otherwise provides In the statement of decision. <br />(c) Provisional Remedies, Self -Help And Foreclosure. No provision of this Agreement <br />shall limit the right of any party to (i) exercise self-help remedies Including, without limitation, setoff, (il) <br />foreclose against or sell any collateral, by power of sale or otherwise or (lii) obtain or oppose provisional or <br />ancillary remedies from a court of competent jurisdiction before, after or during the pendency of the <br />Reference. The exercise of, or opposition to, any such remedy does not waive the right of any party to a <br />Reference pursuant to this Agreement. <br />(d) No Decision By Jurv. The parties hereby acknowledge that If a referee Is selected <br />or appointed to determine the Claims, then the Claims will not be decided by a jury. <br />(e) Miscellaneous. In the event that multiple Claims are asserted, some of which are <br />not subject to this Section, the parties agree to stay the proceedings of the Claims not subject to this Section <br />until all other Claims are resolved in accordance with this Section. In the event that Claims are asserted <br />against multiple parties, some of whom are not subject to this Section, the Parties agree to sever the Claims <br />subject to this Section and resolve them In accordance with this Section. <br />(f) Claim. "Claim" shall mean any claim, cause of action, action, dispute or <br />controversy between or among the parties, whether sounding in contract, tort or otherwise, which arises <br />out of or relates to: (1) any of the Borrower Loan Documents or the Funding Loan Documents; (ii) and <br />negotiations or communications relating to any of the Borrower Loan Documents or the Funding Loan <br />Documents, whether or not incorporated into the Borrower Loan Documents or the Funding Loan <br />Documents or any indebtedness evidenced thereby; or (lil) any alleged agreements, promises, <br />representations or transactions in connection therewith. <br />(g) Reference. "Reference" shall mean ajudicial reference conducted pursuant to this <br />Agreement and in accordance with the laws of the state in which the Property is located, as in effect at the <br />time the referee is selected or appointed. <br />[Signature Pages Follow] <br />-g- <br />4825-9439-0424v.3 0096250-000020 <br />80A-271 <br />