Message-ID: <2751499.1075858570279.JavaMail.evans@thyme> Date: Tue, 29 May 2001 17:16:00 -0700 (PDT) From: carlos.sole@enron.com To: gerald.nemec@enron.com Subject: Waiver of Forum Non-Conveniens Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: quoted-printable X-From: Carlos Sole X-To: Gerald Nemec X-cc: X-bcc: X-Folder: \Nemec, Gerald (Non-Privileged)\Nemec, Gerald\Inbox X-Origin: Nemec-G X-FileName: Nemec, Gerald (Non-Privileged).pst Gerald, the text below is from a financing agreement that involved a Mexica= n company. I would use from it what you can but would talk to Andy Edison = as to what would work in your agreement and whether he has any specific for= m. There are two critical issues related to your deal -- one is to get a U= S court to be able to recognize the arbitration award and two would be in t= he event that your Mexican counterparty does not have assets in the US, the= n you would want to next be able to a Mexican court to recognize and enforc= e your US court judgment enforcing your arbitration award. 1.01=09SUBMISSION TO JURISDICTION; PROCESS AGENT; WAIVER OF JURY TRIAL. =20 (A) =09SUBMISSION TO JURISDICTION. ANY SUIT, ACTION OR PROCEEDING WITH RE= SPECT TO THIS AGREEMENT OR THE NOTES OR ON ANY JUDGMENT ENTERED BY ANY COUR= T IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK,= AND EACH PARTY HEREBY SUBMITS TO THE JURISDICTION OF SUCH COURTS FOR THE P= URPOSE OF ANY SUCH SUIT, ACTION, PROCEEDING OR JUDGMENT (AND WAIVES FOR SUC= H PURPOSE ANY OTHER JURISDICTION BY REASON OF ITS PRESENT OR FUTURE DOMICIL= E OR OTHERWISE AND ANY CLAIM OF INCONVENIENT FORUM). EACH PARTY HERETO FUR= THER SUBMITS, FOR THE PURPOSE OF ANY SUITS, ACTIONS OR PROCEEDINGS AGAINST = IT, TO THE JURISDICTION OF THE APPROPRIATE COURTS OF ITS DOMICILE. TO THE = EXTENT THAT ANY OF THE COMPANY OR THE GUARANTORS HAS OR HEREAFTER MAY ACQUI= RE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (W= HETHER FROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN = AID OF EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PRO= PERTY, EACH OF THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY WAIVE SUCH= IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT, THE NOTES OR = THE SECURITY DOCUMENTS. (B) =09SERVICE OF PROCESS. THE COMPANY WAIVES PERSONAL SERVICE OF ANY PROC= ESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS= , PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THE= REOF BY ANY AGENT OR EPCO BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,= TO THE COMPANY OR GUARANTORS ADDRESSED TO THEIR PROCESSING AGENT. NOTHING= HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR EPC= O TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITT= ED BY APPLICABLE LAW. THE COMPANY AND EACH OF THE GUARANTORS IRREVOCABLY W= AIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LA= YING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY= NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WIT= H RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT = EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH = ABOVE. EACH OF THE COMPANY AND THE GUARANTORS FURTHER AGREES THAT SERVICE = OF ALL WRITS, PROCESS AND SUMMONSES IN ANY SUCH SUIT, ACTION OR PROCEEDING = BROUGHT IN THE STATE OF NEW YORK MAY BE MADE UPON CT CORPORATION SYSTEM ("P= ROCESS AGENT") PRESENTLY LOCATED AT NEW YORK, NEW YORK, U.S.A. AND EACH OF = THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY APPOINTS THE PROCESS AGEN= T AS ITS TRUE AND LAWFUL AGENT FOR THE SERVICE OF PROCESS IN ITS NAME, PLAC= E AND STEAD TO ACCEPT SUCH SERVICE OF ANY AND ALL SUCH WRITS, PROCESS AND S= UMMONSES, AND AGREES THAT THE FAILURE OF THE PROCESS AGENT TO GIVE ANY NOTI= CE OF ANY SUCH SERVICE OF PROCESS TO THE COMPANY OR THE GUARANTORS SHALL NO= T IMPAIR OR AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY JUDGMENT BASED TH= EREON. THE COMPANY AND THE GUARANTORS AGREE TO MAINTAIN AT ALL TIMES AN AG= ENT WITH OFFICES IN NEW YORK TO ACT AS ITS PROCESS AGENT AS AFORESAID, AND = TO GIVE ADVANCE NOTICE OF ANY CHANGE OF SUCH PROCESS AGENT. TO THE EXTENT T= HAT ANY OF THE COMPANY OR THE GUARANTORS HAS OR HEREAFTER MAY ACQUIRE ANY I= MMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER F= ROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF E= XECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, E= ACH OF THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY WAIVE SUCH IMMUNIT= Y IN RESPECT OF ITS OBLIGATIONS UNDER THE LIQUIDITY DOCUMENTS. (C)=09WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES = ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUN= DING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELAT= ED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTIO= N WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUT= ED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES = AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL B= E DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE = AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITT= EN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIG= HT TO TRIAL BY JURY. (D) =09WAIVER OF BOND. THE COMPANY WAIVES THE POSTING OF ANY BOND OTHERWI= SE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR = PROCEEDING TO REALIZE ON THE COLLATERAL, ENFORCE ANY JUDGMENT OR OTHER COUR= T ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMAN= CE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS = AGREEMENT OR ANY OTHER LIQUIDITY DOCUMENT. (E) =09ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PA= RTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROV= ISIONS OF THIS SECTION 9.08, WITH ITS COUNSEL.