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Enron Mail |
Gerald, the text below is from a financing agreement that involved a Mexica=
n=20 company. I would use from it what you can but would talk to Andy Edison as= =20 to what would work in your agreement and whether he has any specific form. = =20 There are two critical issues related to your deal -- one is to get a US=20 court to be able to recognize the arbitration award and two would be in the= =20 event that your Mexican counterparty does not have assets in the US, then y= ou=20 would want to next be able to a Mexican court to recognize and enforce you= r=20 US court judgment enforcing your arbitration award. 1.01 SUBMISSION TO JURISDICTION; PROCESS AGENT; WAIVER OF JURY TRIAL. =20 (A) SUBMISSION TO JURISDICTION. ANY SUIT, ACTION OR PROCEEDING WITH=20 RESPECT TO THIS AGREEMENT OR THE NOTES OR ON ANY JUDGMENT ENTERED BY ANY=20 COURT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW= =20 YORK, AND EACH PARTY HEREBY SUBMITS TO THE JURISDICTION OF SUCH COURTS FOR= =20 THE PURPOSE OF ANY SUCH SUIT, ACTION, PROCEEDING OR JUDGMENT (AND WAIVES FO= R=20 SUCH PURPOSE ANY OTHER JURISDICTION BY REASON OF ITS PRESENT OR FUTURE=20 DOMICILE OR OTHERWISE AND ANY CLAIM OF INCONVENIENT FORUM). EACH PARTY=20 HERETO FURTHER SUBMITS, FOR THE PURPOSE OF ANY SUITS, ACTIONS OR PROCEEDING= S=20 AGAINST IT, TO THE JURISDICTION OF THE APPROPRIATE COURTS OF ITS DOMICILE. = =20 TO THE EXTENT THAT ANY OF THE COMPANY OR THE GUARANTORS HAS OR HEREAFTER MA= Y=20 ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCE= SS=20 (WHETHER FROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT I= N=20 AID OF EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS=20 PROPERTY, EACH OF THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY WAIVE= =20 SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT, THE NOTES= =20 OR THE SECURITY DOCUMENTS. (B) SERVICE OF PROCESS. THE COMPANY WAIVES PERSONAL SERVICE OF ANY PROCES= S=20 UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS,=20 PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THERE= OF=20 BY ANY AGENT OR EPCO BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO T= HE=20 COMPANY OR GUARANTORS ADDRESSED TO THEIR PROCESSING AGENT. NOTHING HEREIN= =20 SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR EPCO TO SER= VE=20 ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY=20 APPLICABLE LAW. THE COMPANY AND EACH OF THE GUARANTORS IRREVOCABLY WAIVES= =20 ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING O= F=20 VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR= =20 HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPEC= T=20 TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED O= R=20 DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE. EACH= =20 OF THE COMPANY AND THE GUARANTORS FURTHER AGREES THAT SERVICE OF ALL WRITS,= =20 PROCESS AND SUMMONSES IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN THE= =20 STATE OF NEW YORK MAY BE MADE UPON CT CORPORATION SYSTEM (=01&PROCESS AGENT= =018)=20 PRESENTLY LOCATED AT NEW YORK, NEW YORK, U.S.A. AND EACH OF THE COMPANY AND= =20 THE GUARANTORS HEREBY IRREVOCABLY APPOINTS THE PROCESS AGENT AS ITS TRUE AN= D=20 LAWFUL AGENT FOR THE SERVICE OF PROCESS IN ITS NAME, PLACE AND STEAD TO=20 ACCEPT SUCH SERVICE OF ANY AND ALL SUCH WRITS, PROCESS AND SUMMONSES, AND= =20 AGREES THAT THE FAILURE OF THE PROCESS AGENT TO GIVE ANY NOTICE OF ANY SUCH= =20 SERVICE OF PROCESS TO THE COMPANY OR THE GUARANTORS SHALL NOT IMPAIR OR=20 AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY JUDGMENT BASED THEREON. THE= =20 COMPANY AND THE GUARANTORS AGREE TO MAINTAIN AT ALL TIMES AN AGENT WITH=20 OFFICES IN NEW YORK TO ACT AS ITS PROCESS AGENT AS AFORESAID, AND TO GIVE= =20 ADVANCE NOTICE OF ANY CHANGE OF SUCH PROCESS AGENT. TO THE EXTENT THAT ANY = OF=20 THE COMPANY OR THE GUARANTORS HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FRO= M=20 JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM SERVICE O= R=20 NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION,=20 EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH OF THE= =20 COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY WAIVE SUCH IMMUNITY IN RESPEC= T=20 OF ITS OBLIGATIONS UNDER THE LIQUIDITY DOCUMENTS. (C) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES AN= Y=20 RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING= =20 IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO= =20 OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH= =20 THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR= =20 DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND=20 CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE=20 DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN= =20 ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN= =20 EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT = TO=20 TRIAL BY JURY. (D) WAIVER OF BOND. THE COMPANY WAIVES THE POSTING OF ANY BOND OTHERWISE= =20 REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR=20 PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COUR= T=20 ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE= ,=20 TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS=20 AGREEMENT OR ANY OTHER LIQUIDITY DOCUMENT. (E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PART= Y=20 HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIO= NS=20 OF THIS SECTION 9.08, WITH ITS COUNSEL.
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