Elba Express Company, L.L.C.

Original Volume No. 1

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Effective Date: 03/01/2010, Docket: RP10-342-000, Status: Effective

Original Sheet No. 126 Original Sheet No. 126

 

CONTEMPLATED HEREBY OR THEREBY, SUCH DISPUTE SHALL, PRIOR TO INITIATING ANY FORMAL LEGAL

PROCEEDING, BE REFERRED FOR NO LESS THAN THIRTY (30) DAYS TO A SENIOR MANAGEMENT

REPRESENTATIVE OF EACH OF THE PARTIES FOR RESOLUTION. EACH PARTY AGREES THAT NEW YORK, NEW

YORK, SHALL BE THE EXCLUSIVE VENUE FOR LITIGATION OF ANY DISPUTE OR CLAIM ARISING UNDER OR

RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY

OR THEREBY, AND THAT SUCH CITY IS A CONVENIENT FORUM IN WHICH TO DECIDE ANY SUCH DISPUTE OR

CLAIM. EACH PARTY CONSENTS TO THE PERSONAL JURISDICTION OF THE FEDERAL AND STATE COURTS

LOCATED IN NEW YORK, NEW YORK, FOR THE LITIGATION OF ANY SUCH DISPUTE OR CLAIM AND WAIVES ANY

OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH PROCEEDING

BROUGHT IN SUCH A COURT. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT

PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING

DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENT

OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY

OTHER THEORY).

 

c. LIMITATION OF LIABILITY; EQUITABLE REMEDIES

 

EXCEPT AS PART OF ANY EXPRESS REMEDY PROVIDED FOR SPECIFICALLY IN THIS AGREEMENT OR ANY

RELATED AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO ANY OTHER PARTY (INCLUDING A THIRD-PARTY

BENEFICIARY, IF ANY) FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL (INCLUDING ANY LOST

PROFIT, REVENUE OR OPPORTUNITY) OR INCIDENTAL DAMAGES OR ANY EQUITABLE REMEDIES ARISING OUT

OF OR RELATED TO A BREACH OF THIS AGREEMENT.

 

d. ATTORNEYS FEES; LITIGATION EXPENSES

 

EXCEPT AS PART OF ANY EXPRESS REMEDY PROVIDED FOR SPECIFICALLY HEREIN OR IN ANY RELATED

AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO OR SHALL CLAIM FROM ANY OTHER PARTY ANY COURT

COSTS, LITIGATION EXPENSES, OR ANY FEES OR EXPENSES PAID OR OWING TO ATTORNEYS, EXPERTS,

CONSULTANTS, OR WITNESSES RETAINED FOR ANY DISPUTE OR CLAIM HEREUNDER OR IN ANY WAY RELATED

HERETO.

 

 

 

Upon termination of this Guaranty, Counterparty shall execute a release of the Guarantor from its obligations

hereunder substantially in the form and substance of Exhibit B hereto.

 

 

 

By: _______________________________

Name: _______________________________

Title: _______________________________