to serve process in any
other manner permitted by law.
10.17 Waiver of Punitive and Other Damages and Jury Trial.
(a) THE PARTIES TO THIS AGREEMENT EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO
RECOVER PUNITIVE, EXEMPLARY, LOST PROFITS, CONSEQUENTIAL, SPECIAL, INDIRECT OR
SIMILAR DAMAGES IN ANY ARBITRATION, LAWSUIT, LITIGATION OR PROCEEDING ARISING
OUT OF OR RESULTING FROM ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EVEN IF ADVISED OF THE
LIKELIHOOD OR POSSIBILITY OF THE SAME.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY OR CLAIM WHICH
MAY ARISE OUT OF OR RELATE TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE
ANCILLARY AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(c) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY
59
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS,
(ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (iii)
IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 10.17.
(d) FOR THE AVOIDANCE OF DOUBT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS SECTION 10.17 OR ELSEWHERE IN THIS AGREEMENT, THE PARTIES ACKNOWLEDGE THAT
NOTHING IN THIS AGREEMENT SHALL, OR IS INTENDED TO, WAIVE OR OTHERWISE LIMIT THE
RIGHTS OF SELLERS OR PURCHASER OR ANY OF THEIR RESPECTIVE AFFILIATES UNDER THE
COPPER ROD SUPPLY AGREEMENTS.
10.18 Specific Performance. Each of the parties hereto acknowledges and
agrees that, in the event of any breach of this Agreement, the non-breaching
party would be irreparably and immediately harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto (i) shall be
entitled, in addition to any other remedy to which they may be entitled at law
or in equity, to compel specific performance of this Agreement in accordance
with any action instituted in accordance with Section 10.16 and (ii) will waive,
in any action for specific performance, the defense of the adequacy of a remedy
at law.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
PHELPS DODGE CORPORATION
By
/s/ Kalidas Madhavpeddi
Name:
Kalidas Madhavpeddi
Title:
Senior Vice President, Asia
PHELPS DODGE INDUSTRIES, INC.
By
/s/ Kalidas Madhavpeddi
Name:
Kalidas Madhavpeddi
Title:
Senior Vice President
REA MAGNET WIRE COMPANY, INC.
By
/s/ Larry E. Bagwell
Name:
Larry E. Bagwell
Title:
Chairman/CEO
61
EXHIBIT A
[FORM OF PROPERTY LEASE]
This LEASE AGREEMENT (the "Agreement") is made and entered into as of this
___day