Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller and, prior to the Closing, the Company, on behalf of itself, its Subsidiaries, its controlled Affiliates and its Representatives, hereby: (a) agrees that any Action of any kind or description, whether in contract or in tort or otherwise, involving any Financing Party, arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action to the exclusive jurisdiction of such court; (b) agrees that any such Action shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any applicable definitive document agreement relating to the Debt Financing; (c) agrees not to bring or support, or permit any of its controlled Affiliates to bring or support, any Action, whether in contract or in tort or otherwise, arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against any Financing Party and to cause any such Action asserted to be dismissed or otherwise terminated; (d) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Financing Party in any way arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no Financing Party shall have any liability to Seller, any of its Affiliates or any of their respective Representatives arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties are express third party beneficiaries of, and may enforce any of the provisions of this Section 10.24; and (i) agrees that this Section 10.24 and the definition of “Financing Sources” and “Financing Parties” (and any provision of this Agreement to the extent an amendment, modification, or waiver of such provision would modify the substance of the foregoing provisions) may not be amended, modified or waived in any manner that is materially adverse to the Financing Parties without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1. Notwithstanding the foregoing, nothing in this Section 10.24 shall affect the rights of Buyer against the Financing Parties with respect to the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereunder.
Appears in 5 contracts
Samples: Share Purchase Agreement (Revelyst, Inc.), Share Purchase Agreement (Outdoor Products Spinco Inc.), Share Purchase Agreement (Outdoor Products Spinco Inc.)
Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller and, prior to the Closing, the Company, Company on behalf of itself, its Subsidiaries, Subsidiaries and each of its controlled Affiliates and its Representatives, hereby: (a) agrees that any Action action, suit or proceeding of any kind or description, whether in contract or in tort or otherwise, involving any the Debt Financing PartyParties, arising out of or relating to this Agreement, the Debt Commitment Letter or the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action action, suit or proceeding to the exclusive jurisdiction of such court; (b) agrees that any such Action action, suit or proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any applicable Debt Commitment Letters or other applicable definitive document agreement relating to the Debt Financing; (c) agrees not to bring or support, support or permit any of its controlled Affiliates Subsidiaries to bring or supportsupport any action, suit or proceeding of any Actionkind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing Commitment Letters or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against in any Financing Party and to cause forum other than any such Action asserted to be dismissed federal or otherwise terminated; state court in the Borough of Manhattan, New York, New York, (d) knowinglyirrevocably waives, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury that it may effectively do so, the defense of an inconvenient forum to the maintenance of such action, suit or proceeding in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereundercourt; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law law trial by jury in any rights action, suit or claims proceeding brought against any the Debt Financing Party Parties in any way arising out of or relating to, to this Agreement, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing Commitment Letters or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no none of the Debt Financing Party shall Parties will have any liability to Seller, the Company or any of its Affiliates Subsidiaries or any of their respective Representatives Affiliates or representatives relating to or arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing Commitment Letters or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; , whether in law or in equity, whether in contract or in tort or otherwise, (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, (and each other party hereto agrees that) the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties are express third party beneficiaries of, and may enforce any of the provisions of this Section 10.24; 8.14, and (ih) agrees that the provisions of this Section 10.24 8.14 and the definition definitions of “Financing SourcesLenders” and “Debt Financing Parties” (and any provision other provisions of this Agreement to the extent an amendment, modification, or waiver of such provision a modification thereof would modify affect the substance of any of the foregoing provisionsforegoing) may shall not be amended, modified or waived amended in any manner that is way materially adverse to the Debt Financing Parties without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1Lenders. Notwithstanding the foregoing, nothing in this Section 10.24 8.14 shall affect in any way limit or modify the rights and obligations of Buyer against the Financing Parties Parent or Merger Sub under this Agreement or any Lender’s obligations to Parent or Merger Sub under the Debt Commitment Letters or Parent or Merger Sub, (and following the Closing Date, the Company or any of its Subsidiaries) under the definitive agreements governing the Debt Financing. This Section 8.14 shall, with respect to the Debt Financing or matters referenced herein, supersede any provision of this Agreement to the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereundercontrary.
Appears in 2 contracts
Samples: Merger Agreement (Sirius International Insurance Group, Ltd.), Merger Agreement (Third Point Reinsurance Ltd.)
Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller and, prior to the Closing, the Companyparties hereto, on behalf of itself, its Subsidiaries, Subsidiaries and each of its controlled Affiliates and its Representatives, hereby: hereby (a) agrees that any Action action, suit or proceeding of any kind or description, whether in contract or in tort or otherwise, involving any the Debt Financing PartySources, arising out of or relating to this Agreement, Agreement or the Debt DIP Financing or any of the agreements entered into in connection with the Debt DIP Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of the Bankruptcy Court and, if the Bankruptcy Court does not have (or abstains from) jurisdiction, the courts of the State of New York, the courts of the United States of America for the Southern District of New York and appellate courts from any thereof, and any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum if the Bankruptcy Court is and remains not available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action action, suit or proceeding to the exclusive jurisdiction of such court; (b) agrees that any such Action action, suit or proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state)York, except as otherwise expressly provided in any the DIP Credit Agreement or other applicable definitive document agreement relating to the Debt DIP Financing; (c) agrees not to bring or support, support or permit any of its controlled Affiliates Subsidiaries to bring or supportsupport any action, suit or proceeding of any Actionkind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt DIP Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against in any Financing Party forum other than the Bankruptcy Court and, if the Bankruptcy Court does not have (or abstains from) jurisdiction, the courts of the State of New York, the courts of the United States of America for the Southern District of New York and to cause appellate courts from any such Action asserted to be dismissed or otherwise terminatedthereof; (d) knowinglyirrevocably waives, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury that it may effectively do so, the defense of an inconvenient forum to the maintenance of such action, suit or proceeding in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereundercourt; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law law trial by jury in any rights action, suit or claims proceeding brought against any the Debt Financing Party Sources in any way arising out of or relating to, to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt DIP Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) solely with respect to Seller, its Subsidiaries and its Affiliates, agrees that no none of the Debt Financing Party shall Sources will have any liability to Seller, its Subsidiaries or any of its Affiliates or any of their respective Representatives officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent or representative relating to or arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt DIP Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise and neither Seller, its Subsidiaries nor its Affiliates will have any rights or claims against any of the Debt Financing Sources hereunder or thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties Sources are express third third-party beneficiaries of, and may enforce any of the provisions of this Section 10.249.13; and (ih) agrees that the provisions of Section 4.25, Section 9.10, this Section 10.24 9.13 and the definition definitions of “DIP Lenders” and “Debt Financing Sources” and “Financing Parties” (and any provision of this Agreement to the extent an amendment, modification, or waiver of such provision would modify the substance of the foregoing provisions) may shall not be amended, modified or waived in any manner that is way materially adverse to the Debt Financing Parties Sources without the prior written consent of the Financing Sources; provided that notwithstanding Required Lenders (as defined in the foregoingDIP Credit Agreement) or with respect to any Alternative Financing, this Section 10.24 shall apply solely the equivalent term to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant Required Lenders with respect to Section 8.11.1such Alternative Financing. Notwithstanding the foregoing, nothing in this Section 10.24 9.13 shall affect in any way limit or modify the rights and obligations of Buyer against Buyer, the Financing Parties DIP Borrower or any of their respective Subsidiaries under this Agreement or any DIP Lender’s obligations to Buyer, the DIP Borrower or any of their respective Subsidiaries under the DIP Credit Agreement. This Section 9.13 shall, with respect to the Debt Financing or matters referenced herein, supersede any provision of this Agreement to the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereundercontrary.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Intelsat S.A.), Purchase and Sale Agreement (Gogo Inc.)
Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller and, prior to the Closing, the Company, on behalf of itself, its Subsidiaries, its controlled Affiliates and its Representatives, hereby: (a) agrees that Parent will use reasonable best efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable to cause the Debt Financing to be consummated (including by taking enforcement action to cause the Lenders to provide the Debt Financing). Without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), Parent shall not, and shall cause TIFSA and the Borrower not to, consent or agree to any Action material amendment or modification to, or any waiver of any kind material provision under, or description, whether in contract or in tort or otherwise, involving any Financing Party, arising out of or relating to this Agreementreplacement of, the Debt Commitment Letters or the definitive agreements relating to the Debt Financing, or enter into any material agreement or arrangement with respect to the Debt Financing (including in respect of any alternative financing) other than definitive agreements relating to the Debt Financing as contemplated by (and substantially upon the express terms set forth in) the Debt Commitment Letters, as in effect on the date hereof; provided that, in any event, Parent shall be permitted to, and shall be permitted to cause TIFSA or the Borrower to, consent or agree to any amendment or modification, or any waiver of any provision, under any Debt Commitment Letter if such amendment, modification or waiver solely adds (i) lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the agreements entered date hereof as parties thereto, or (ii) the Borrower (and correspondingly removes TIFSA) as a party thereto, and/or in each case to make conforming modifications to any Debt Commitment Letter in respect of such changes. Any such amendment, modification or waiver in violation or breach of, or in conflict with, the terms and conditions set forth in Section 6.16(c) shall be deemed to be material for purposes of this Section 6.16(a) and the Company’s withholding, conditioning or delaying of consent with respect thereto shall be deemed to be reasonable. At the Company’s reasonable request from time to time, Parent shall inform the Company in reasonable detail of the status of its efforts to arrange the Debt Financing; provided that in no event will Parent be under any obligation to disclose any information that is subject to attorney-client, attorney work product or other legal privilege (provided, however, that Parent shall use its reasonable best efforts, including entering into a common defense or common interest, or other similar agreement, to allow for such disclosure to the maximum extent that does not result in a loss of any such attorney-client, attorney work product or other legal privilege).
(b) Subject to the terms and conditions set forth in Section 6.16(c), the Company shall use its reasonable best efforts to provide to Parent and its Subsidiaries such cooperation and assistance as may be reasonably requested by Parent and its Subsidiaries that is customary in connection with the arranging, obtaining and syndication of the Debt Financing, including using reasonable best efforts to (i) make its senior management and advisors available to participate in a reasonable number of informational meetings, presentations, and roadshows with proposed lenders, underwriters, initial purchasers or placement agents, and in sessions with rating agencies, in each case, in connection with the Debt Financing, (ii) assist Parent and the Borrower in their preparation of rating agency presentations, lender presentations, offering memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Debt Financing and (iii) participate in drafting sessions with Parent and the Borrower with respect to the Debt Financing. Notwithstanding the foregoing, Parent and Merger Sub hereby agree that neither the Company nor any Company Subsidiary shall be required to (i) deliver any financial or other information with respect to the Company or any Company Subsidiary in connection with the Debt Financing or (ii) cause the independent auditors of the Company to cooperate with Parent or the Borrower in connection with the Debt Financing.
(c) Parent hereby agrees that the definitive agreements relating to the Debt Financing shall not (i) require the Company or any of its Subsidiaries to guarantee, grant liens on their respective properties or assets or otherwise provide, directly or indirectly, credit or collateral support for the transactions contemplated hereby Debt Financing, whether prior to or thereby after the Effective Time, or (ii) contain any representations, warranties, covenants or events of default, or any other terms or conditions, in each case that would apply to the performance Company, any of its Subsidiaries or any services thereunder of their respective properties or assets, whether prior to or after the Effective Time (it being understood, for the avoidance of doubt, that (x) the consummation of the Merger and the other Transactions shall be subject a condition to the exclusive jurisdiction closing of any federal the Debt Financing and (y) certain representations, warranties, covenants or state court sitting events of default, or other terms or conditions may restrict or otherwise affect the Borrower’s and its Subsidiaries’ dealings with the Company and its Subsidiaries). Parent shall use reasonable best efforts to cause its financing sources (including the Lead Arranger under the Debt Commitment Letters) to confirm in writing (which confirmation may be contained in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action to the exclusive jurisdiction of such court; (b) agrees that any such Action shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any applicable definitive document agreement agreements relating to the Debt Financing; (c) agrees not to bring or support, or permit any of its controlled Affiliates to bring or support, any Action, whether in contract or in tort or otherwise, arising out of or relating to this Agreement, that the Debt Financing is being provided to Borrower on the basis of its properties, assets and credit only.
(d) Parent and the Company agree to cooperate and use commercially reasonable efforts to take, or any of the agreements entered into cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable and proper in connection with the Debt Financing or any arrangement, marketing and consummation of the transactions contemplated hereby or thereby upsizing and amendment of the current revolving credit facility of Parent and TIFSA (or the performance of any services thereunder against any Financing Party and to cause any such Action asserted to be dismissed or otherwise terminated; (dreplacement thereof) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of Transactions (the transactions contemplated hereby or thereby or the performance of any services thereunder; (e) knowingly“Revolver Financing”), intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Financing Party in any way arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no Financing Party shall have any liability to Seller, any of its Affiliates or any of their respective Representatives arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties are express third party beneficiaries of, and may enforce any of the provisions of this Section 10.24; and including (i) agrees that this Section 10.24 participating in the marketing and the definition of “Financing Sources” and “Financing Parties” (and any provision of this Agreement syndication efforts related to the extent an amendmentRevolver Financing, modification(ii) participating in the preparation of rating agency presentations and meetings with rating agencies, or waiver of such provision would modify the substance of the foregoing provisions) may not be amendedroadshows, modified or waived due diligence sessions, drafting sessions and meetings with prospective lenders, in any manner that is materially adverse to the Financing Parties without the prior written consent of the Financing Sources; provided that notwithstanding the foregoingeach case, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1. Notwithstanding the foregoing, nothing in this Section 10.24 shall affect the rights of Buyer against the Financing Parties with respect to the Debt Financing Revolver Financing, (iii) delivering to the financing sources as promptly as reasonably practicable such financial and other information customary or any reasonably necessary for the completion of the agreements entered into Revolver Financing and (iv) providing authorization letters to the financing sources authorizing the distribution of information to prospective lenders containing a representation to the financing sources that the information provided for inclusion in connection with the Debt Financing or any public side versions of the transactions contemplated thereby such documents, if any, does not include material non-public information about Parent or the performance of any services thereunderCompany, as applicable, or their respective securities.
Appears in 2 contracts
Samples: Merger Agreement (TYCO INTERNATIONAL PLC), Merger Agreement (Johnson Controls Inc)
Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller and, prior to the Closing, the Company, on behalf of itself, its Subsidiaries, its controlled Affiliates and its Representatives, hereby: Company hereby (ai) agrees that any Action of any kind legal proceeding, whether in law or descriptionin equity, whether in contract or in tort or otherwise, involving any Financing Party, arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action to the exclusive jurisdiction of such court; (b) agrees that any such Action shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any applicable definitive document agreement relating to the Debt Financing; (c) agrees not to bring or support, or permit any of its controlled Affiliates to bring or support, any Action, whether in contract or in tort or otherwise, arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against any Financing Party and to cause any such Action asserted to be dismissed or otherwise terminated; (d) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Financing Party in any way Source arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; thereunder (fa “Debt Financing Action”) shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and the Company hereby irrevocably submits itself and its property with respect to any such Debt Financing Action to the exclusive jurisdiction of such court, and such Debt Financing Action (except to the extent relating to the interpretation of any provisions in this Agreement (including any provision in any documentation related to the Debt Financing (including the Debt Commitment Letter)) that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the law of the State of Delaware)) shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another jurisdiction), (ii) agrees that no not to bring or support any Debt Financing Party shall have Action against any liability to Seller, Debt Financing Source in any of its Affiliates or any of their respective Representatives way arising out of or relating to to, this Agreement, the Debt Financing or any of the agreements entered into transactions contemplated hereby or thereby or the performance of any services thereunder in connection any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (iii) agrees that service of process in any such Debt Financing Action shall be effective if notice is given in accordance with the procedures set forth in Section 9.2, (iv) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any Debt Financing Action in any such court with respect to any Debt Financing Action against any Debt Financing Source, (v) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law, trial by jury in any Debt Financing Action brought against the Debt Financing Sources in any way arising out of or relating to, this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; , (gvi) agrees that no none of the Debt Financing Party shall be subject Sources will have any liability to any special, consequential, punitive the parties hereto relating to or indirect damages or damages arising out of a tortious nature in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; , whether in law or in equity, whether in contract or in tort or otherwise (h) agrees that the Financing Parties are express third party beneficiaries ofprovided that, and may enforce any of the provisions of this Section 10.24; and (i) agrees that this Section 10.24 and the definition of “Financing Sources” and “Financing Parties” (and any provision of this Agreement to the extent an amendment, modification, or waiver of such provision would modify the substance of the foregoing provisions) may not be amended, modified or waived in any manner that is materially adverse to the Financing Parties without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1. Notwithstanding the foregoing, nothing in this Section 10.24 herein shall affect the rights of Buyer the Surviving Corporation and Parent and their respective subsidiaries against the Debt Financing Parties Sources under the Debt Commitment Letter or any definitive financing agreement with respect to the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereunderthereunder following the Merger) and (vii) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, any of the provisions in this Agreement reflecting the foregoing agreements in this Section 9.14 and such provisions and the definitions of “Lenders”, “Debt Financing” and “Debt Financing Source” shall not be amended in any way adverse to any Debt Financing Source without the prior written consent of such Debt Financing Source (such consent not to be unreasonably withheld, conditioned or delayed). In furtherance and not in limitation of the foregoing waivers and agreements, it is acknowledged that no Debt Financing Source shall have any liability for any claims or damages to the Company in connection with this Agreement, the Debt Financing and the transactions contemplated hereby and thereby.
Appears in 1 contract
Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller and, prior to the Closing, the Company, party hereto on behalf of itself, its Subsidiaries, Subsidiaries and each of its controlled Affiliates and its Representatives, hereby: (a) agrees that any Action action, suit or proceeding of any kind or description, whether in contract or in tort or otherwise, involving any the Debt Financing PartySources, arising out of or relating to this Agreement, the Debt Commitment Letter or the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action action, suit or proceeding to the exclusive jurisdiction of such court; (b) agrees that any such Action action, suit or proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any applicable Debt Commitment Letter or other applicable definitive document agreement relating to the Debt Financing; (c) agrees not to bring or support, support or permit any of its controlled Subsidiaries, Affiliates or Representatives to bring or supportsupport any action, suit or proceeding of any Actionkind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against in any Financing Party and to cause forum other than any such Action asserted to be dismissed federal or otherwise terminatedstate court in the Borough of Manhattan, New York, New York; (d) knowinglyirrevocably waives, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury that it may effectively do so, the defense of an inconvenient forum to the maintenance of such action, suit or proceeding in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereundercourt; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Applicable Law trial by jury in any rights action, suit or claims proceeding brought against any the Debt Financing Party Sources in any way arising out of or relating to, to this Agreement, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no (i) none of the Debt Financing Party shall Sources will have any liability to SellerSellers, any of its Affiliates the Transferred Companies or any of their respective Subsidiaries, Affiliates or Representatives relating to, arising out of or relating to in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise and (ii) agrees not to commence (and if commenced agrees to dismiss or otherwise terminate) any claim, cause of action, suit, litigation or other proceeding (including any civil, criminal, administrative, investigative or appellate proceeding) against any Debt Financing Source arising out of this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder or based on, in respect of or by reason of this Agreement, the Debt Commitment Letter or their respective negotiation, execution, performance or breach; (g) agrees that (and each other party hereto agrees that) the Debt Financing Sources are express third-party beneficiaries of, and may enforce any of the provisions of Section 10.10 and this Section 10.15; and (h) agrees that the provisions of Section 10.10 and this Section 10.15 and the definitions of “Lender” and “Debt Financing Sources” (and any other provisions of this Agreement to the extent a modification thereof would affect the substance of any of the foregoing) shall not be amended in any way adverse to the Debt Financing Sources without the prior written consent of the Debt Financing Sources party to the Debt Commitment Letter or definitive documentation related to the Debt Financing. Without limiting the generality of the foregoing, (i) no Debt Financing Party Source shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreementto Sellers, the Transferred Companies or any of their respective Subsidiaries, Affiliates or Representatives or (ii) neither Sellers, the Transferred Companies or any of their respective Subsidiaries, Affiliates or Representatives shall be entitled to specifically enforce any rights of Buyer or any Affiliate thereof to cause the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties are express third party beneficiaries of, and may enforce any of the provisions of this Section 10.24; and (i) agrees that this Section 10.24 and the definition of “Financing Sources” and “Financing Parties” (and any provision of this Agreement to the extent an amendment, modification, or waiver of such provision would modify the substance of the foregoing provisions) may not be amended, modified or waived in any manner that is materially adverse to the Financing Parties without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1funded. Notwithstanding the foregoing, nothing in this Section 10.24 10.15 shall affect in any way limit or modify the rights and obligations of Buyer against under this Agreement or any Lender’s obligations to Buyer under the Financing Parties Debt Commitment Letter or Buyer (and following the Closing Date, the Transferred Companies) under the definitive agreements governing the Debt Financing. This Section 10.15 shall, with respect to the Debt Financing or matters referenced herein, supersede any provision of this Agreement to the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereundercontrary.
Appears in 1 contract
Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller andParty, prior to the Closing, the Company, each on behalf of itselfitself and its subsidiaries, and each of its Subsidiaries, its and their controlled Affiliates and its Representatives, hereby: :
(a) agrees that any Action of any kind proceeding, whether in Law or descriptionin equity, whether in contract or in tort or otherwise, involving any the Debt Financing PartySources, arising out of or relating to to, this Agreement, the Debt Financing or and/or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto Party irrevocably submits itself and its property with respect to any such Action proceeding to be the exclusive jurisdiction of such court; ;
(b) agrees that any such Action proceeding shall be governed by the laws Laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws Laws of another state), except as otherwise expressly provided in any the applicable definitive document agreement relating to the Debt Financing; ;
(c) without limiting the rights of any Person under the definitive documentation governing the Debt Financing, agrees not to bring or support, support or permit any of its controlled Affiliates to bring or supportsupport any proceeding of any kind or description, any Actionwhether in Law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Source in any way arising out of or relating to to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing Agreement or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against in any Financing forum other than any federal or state court in the Borough of Manhattan, New York, New York;
(d) agrees that service of process upon any Seller Party and to cause and/or their respective controlled Affiliates in any such Action asserted proceeding shall be effective if notice is given in accordance with Section 14.01;
(e) irrevocably waives, to be dismissed or otherwise terminated; the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such legal proceeding in any such court;
(df) knowingly, intentionally and voluntarily waives waives, to the fullest extent permitted by applicable Law Law, trial by jury in any such Action proceeding brought against any Debt Financing Party Source in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into transactions contemplated hereby or thereby or the performances of any services thereunder;
(g) without limiting the rights of any Person under the definitive documentation governing the Debt Financing, agrees that none of the Debt Financing Sources will have any liability to any Person (in connection with each case, other than the Buyer and its subsidiaries) relating to or arising out of this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in Law or in equity, whether in contract or in tort or otherwise; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Financing Party in any way arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no Financing Party shall have any liability to Seller, any of its Affiliates or any of their respective Representatives arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; and
(h) agrees that the Debt Financing Parties Sources are express third party beneficiaries of, and may enforce enforce, any of the provisions of Section 14.05, Section 14.17 and this Section 10.24; 14.19, and (i) agrees that this Section 10.24 such provisions and the definition of “Debt Financing SourcesSource” and “Financing Parties” (and any provision of this Agreement to the extent an amendment, modification, or waiver of such provision would modify the substance of the foregoing provisions) may shall not be amended, modified or waived amended in any manner that is materially way adverse to the any Debt Financing Parties Source without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable such Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1. Notwithstanding the foregoing, nothing in this Section 10.24 shall affect the rights of Buyer against the Financing Parties with respect to the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereunderSource.
Appears in 1 contract
Debt Financing. (a) Notwithstanding anything in this Agreement to the contrary, each of Seller and, prior to the Closing, the Company, Company on behalf of itself, its Subsidiaries, its controlled Affiliates itself and its Representatives, Subsidiaries hereby: :
(ai) agrees that any Action action, suit or proceeding of any kind or description, whether in contract Contract or in tort or otherwise, involving any the Debt Financing PartySources, arising out of or relating to this Agreement, or the Debt Financing or any of the agreements definitive agreement entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action action, suit or proceeding to the exclusive jurisdiction of such court; ;
(bii) agrees that any such Action action, suit or proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any applicable commitment letter or other applicable definitive document agreement relating to the Debt Financing; ;
(ciii) agrees not to bring or support, support or permit any of its controlled Affiliates Subsidiaries to bring or supportsupport any action, suit or proceeding of any Actionkind or description, whether in contract law or in equity, whether in Contract or in tort or otherwise, against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against in any Financing Party and forum other than any federal or state court in the Borough of Manhattan, New York, New York;
(iv) irrevocably waives, to cause the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such action, suit or proceeding in any such Action asserted to be dismissed or otherwise terminated; court;
(dv) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law law trial by jury in any such Action action, suit or proceeding brought against any the Debt Financing Party Sources in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with transactions contemplated hereby or thereby or the performance of any services thereunder;
(vi) agrees that none of the Debt Financing Sources will have any liability to the Company, any of its Subsidiaries or any of their respective Representatives relating to or arising out of this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; , whether in law or in equity, whether in Contract or in tort or otherwise;
(evii) knowingly, intentionally agrees that (and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Financing Party in any way arising out of or relating to, this Agreement, each other party hereto agrees that) the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no Financing Party shall have any liability to Seller, any of its Affiliates or any of their respective Representatives arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties Sources are express third third-party beneficiaries of, and may enforce any of the provisions of this Section 10.2411.12; and and
(iviii) agrees that the provisions of this Section 10.24 11.12 and the definition of “Debt Financing Sources” and “Financing Parties” (and any provision other provisions of this Agreement to the extent an amendment, modification, or waiver of such provision a modification thereof would modify affect the substance of any of the foregoing provisionsforegoing) may shall not be amended, modified or waived amended in any manner that is way materially adverse to the Debt Financing Parties Sources without the prior written consent of the Debt Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing .
(and received copies of the agreements related theretob) as required pursuant to Section 8.11.1. Notwithstanding the foregoing, nothing in this Section 10.24 11.12 shall affect in any way limit or modify the rights and obligations of Buyer against the Parent, or Merger Sub under this Agreement or any Debt Financing Parties with respect Source’s obligations to Parent, Merger Sub or any of their applicable Affiliates under any debt commitment letter relating to the Debt Financing or any of the agreements entered into in connection with the Debt Financing Parent, Borrower, Merger Sub or any of their applicable Affiliates (and following the transactions contemplated thereby Closing Date, the Company or any of its Subsidiaries) under the performance definitive agreements governing the Debt Financing. This Section 11.12 shall, with respect to the matters referenced herein, supersede any provision of any services thereunder.this Agreement to the contrary. [Signature Page Follows]
Appears in 1 contract
Samples: Merger Agreement (National Western Life Group, Inc.)
Debt Financing. Notwithstanding anything to the contrary contained in this Agreement to the contrary, each of Seller and, prior to the Closing, the Agreement:
(a) The Company, on behalf of itself, each of the Company Subsidiaries and each of its Subsidiariesand their respective Affiliates, its controlled Affiliates and its each of their respective Representatives, hereby (i) acknowledges that no Debt Financing Source shall have any liability under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby: (a) agrees that , including, but not limited to, any Action of any kind dispute related to, or description, whether in contract or in tort or otherwise, involving any Financing Party, arising out of or relating to this Agreementfrom, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing or any of the transactions contemplated hereby or thereby Commitment Letters or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattanthereof, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action to the exclusive jurisdiction of such court; (bii) agrees that any such Action shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any applicable definitive document agreement relating to the Debt Financing; (c) agrees not to bring or support, or permit any of its controlled Affiliates to bring or support, any Action, whether in contract or in tort or otherwise, arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against any Financing Party and to cause any such Action asserted to be dismissed or otherwise terminated; (d) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims that it may have against any Financing Party in any way arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no Financing Party shall have any liability to Seller, any of its Affiliates or any of their respective Representatives arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature Source in connection with this Agreement, the Debt Financing or the Debt Commitment Letters, whether at law or equity, in contract, in tort or otherwise, and (iii) agrees not to commence (and if commenced agrees to dismiss or otherwise terminate, and not to assist) any of the agreements entered into action, arbitration, audit, hearing, investigation, litigation, petition, grievance, complaint, suit or proceeding against any Debt Financing Source in connection with this Agreement, the Debt Financing Financing, the Debt Commitment Letters or any of the transactions contemplated hereby or thereby thereby.
(b) With respect to any dispute or proceeding against any Debt Financing Source relating to this Agreement, the Debt Financing, the Debt Commitment Letters or the performance transactions contemplated hereby or thereby, each party hereto, on behalf of itself, each of its Subsidiaries and Affiliates, and each of their respective Representatives, (i) submits to the exclusive jurisdiction of the courts of the State of New York or federal courts of the United States of America, in each case, sitting in the Borough of Manhattan, and any appellate court from any thereof (the courts described in this clause (i), the “Applicable Courts”), and agrees that all claims in respect of any services thereunder; such litigation may be heard and determined only in the Applicable Courts, (hii) waives, to the fullest extent permitted by Law, any objection which it may now or hereafter have to the laying of venue of any proceeding in any Applicable Court, (iii) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such proceeding in any Applicable Court, and (iv) agrees that the Financing Parties are express third party beneficiaries of, a final judgment in any such proceeding shall be conclusive and may be enforced in other jurisdictions by suit in on the judgment or any other manner provided by Law.
(c) Parent and Merger Subsidiary may collaterally assign any or all of its rights hereunder to any Debt Financing Source.
(d) Each party hereto agrees that each Debt Financing Source shall be an intended third-party beneficiary of each of the provisions of Section 8.1, Section 8.4, Section 8.6 and this Section 8.11 and shall be entitled to rely on and enforce any and all such provisions.
(e) None of the provisions of this Agreement described in Section 10.24; and (i) agrees that 8.1, Section 8.4, Section 8.6 or this Section 10.24 and the definition of “Financing Sources” and “Financing Parties” (and any provision of this Agreement to the extent an amendment, modification, or waiver of such provision would modify the substance of the foregoing provisions) 8.11 may not be amended, modified or waived supplemented in any a manner that is materially adverse in any material respect to the any Debt Financing Parties Source without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable such Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1. Notwithstanding the foregoing, nothing in this Section 10.24 shall affect the rights of Buyer against the Financing Parties with respect to the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereunderSource.
Appears in 1 contract
Samples: Merger Agreement (Bazaarvoice Inc)
Debt Financing. Notwithstanding anything to the contrary contained herein, (i) in the case of the Debt Financing committed pursuant to the Commitment Papers on the date hereof, or any Alternative Financing where the commitment is obtained by Aebi Schmidt or any of its Affiliates, none of Shyft and its Affiliates and their respective shareholders, partners, members, officers, directors, employees, controlling persons, agents and representatives (other than Aebi Schmidt and its Affiliates after Closing) shall and (ii) in the case of any Alternative Financing where the commitment is obtained by Shyft or any of its Affiliates, none of Aebi Schmidt and its Affiliates and their respective shareholders, partners, members, officers, directors, employees, controlling persons, agents and representatives (other than Shyft and its Affiliates after Closing) shall (such Persons, as the case may be in respect of a given financing, the “Finance No Recourse Parties”), in each case, have any rights or claims against any Lender thereunder in connection with this Agreement Agreement, such Debt Financing or Alternative Financing, or the transactions contemplated hereby or thereby, and no such Lender shall have any rights or claims against any Finance No Recourse Party in connection with this Agreement, such Debt Financing or Alternative Financing, or the transactions contemplated hereby or thereby, whether at law or equity, in contract, in tort or otherwise; provided that the foregoing will not limit the rights of the parties to any Debt Financing or Alternative Financing under any commitment letter or other definitive documents related thereto. Notwithstanding anything herein to the contrary, each Finance No Recourse Party and each of Seller and, prior to the Closing, the Company, on behalf of itself, its Subsidiaries, its controlled Affiliates and its Representatives, hereby: other Parties (a) agrees that that, subject to this Section 10.18, it will not bring or support any Action action, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, involving against any Financing Party, arising out of or Lender in any way relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing Agreement or any of the transactions contemplated hereby by this Agreement, including but not limited to any dispute arising out of or thereby relating in any way to the Debt Financing or the performance thereof or the transactions contemplated thereby, in any forum other than exclusively in the Supreme Court of any services thereunder shall be subject to the exclusive jurisdiction State of any federal or state court New York, County of New York, sitting in the Borough of ManhattanManhattan or, if under applicable law exclusive jurisdiction is vested in the federal courts, the United States District Court for the Southern District of New YorkYork sitting in the Borough of Manhattan (and appellate courts thereof) (or, New Yorkif applicable, so long as such any other forum is and remains availablefor the resolution of disputes agreed to in the relevant Commitment Papers), and any appellate court thereof and each party hereto irrevocably (b) submits for itself and its property with respect to any such Action action to the exclusive jurisdiction of such court; (b) agrees that any such Action shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state)courts, except as otherwise expressly provided in any applicable definitive document agreement relating to the Debt Financing; (c) agrees not that service of process, summons, notice or document by registered mail addressed to bring or support, or permit any it at its address provided in Section 10.02 shall be effective service of its controlled Affiliates to bring or support, any Action, whether in contract or in tort or otherwise, arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder process against any Financing Party and to cause it for any such Action asserted to be dismissed or otherwise terminated; action brought in any such court, (d) knowinglywaives and hereby irrevocably waives, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury law, any objection which it may now or hereafter have to the laying of venue of, and the defense of an inconvenient forum to the maintenance of, any such action in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; court and (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Financing Party agrees that a final judgment in any way arising out of such action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or relating toin any other manner provided by law. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, this AgreementEACH FINANCE NO RECOURSE PARTY AND EACH OTHER PARTY HEREBY IRREVOCABLY WAIVES, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS OF TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (fWHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) agrees that no Financing Party shall have any liability to SellerARISING OUT OF OR RELATING TO THE DEBT FINANCING OR ANY OF THE OTHER TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, any of its Affiliates or any of their respective Representatives arising out of or relating to this AgreementINCLUDING IN ANY ACTION, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party PROCEEDING OR COUNTERCLAIM AGAINST ANY LENDER. No Lender shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreementdamages. Notwithstanding anything to the contrary contained herein, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties are express third party beneficiaries of, and may enforce any of the provisions of this Section 10.24; and (i) agrees that this Section 10.24 and the definition of “Financing Sources” and “Financing Parties” 10.18 (and any other provision of this Agreement to the extent an amendment, modificationsupplement, waiver or waiver other modification of such provision would modify the substance of the foregoing provisionsthis Section 10.18) may shall not be amended, supplemented, waived or otherwise modified or waived in any a manner that is materially adverse to the Financing Parties a Lender without the prior written consent of such Lender (or of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely Affiliate or related party of such Lender who is party to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1. Notwithstanding the foregoing, nothing in this Section 10.24 shall affect the rights of Buyer against the Financing Parties with respect to the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereunderrelevant Commitment Papers).
Appears in 1 contract
Samples: Merger Agreement (Shyft Group, Inc.)
Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller and, prior to the Closing, the Company, Acquiror on behalf of itself, its Subsidiaries, Subsidiaries and each of its controlled Affiliates and its RepresentativesAffiliates, hereby: (a) agrees that any Action action, suit or proceeding of any kind or description, whether in contract or in tort or otherwise, involving any the Debt Financing PartySources, arising out of or relating to this Agreement, the Debt Commitment Letter or the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action action, suit or proceeding to the exclusive jurisdiction of such court; (b) agrees that any such Action action, suit or proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any the Debt Commitment Letter or other applicable definitive document agreement relating to the Debt Financing; (c) agrees not to bring or support, or permit any of its controlled Affiliates to bring or support, any Actionaction, suit or proceeding, whether in contract or in tort or otherwise, arising out of or relating to this Agreement, the Debt Commitment Letter or the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against any Debt Financing Party and to cause Source in any such Action asserted to be dismissed forum other than any federal or otherwise terminatedstate court sitting in the Borough of Manhattan, New York, New York; (d) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law law trial by jury in any such Action action, suit or proceeding brought against any the Debt Financing Party Sources in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (e) knowingly, intentionally and voluntarily waives agrees that none of the Debt Financing Sources will have any liability prior to the fullest extent permitted by applicable Law Effective Time to the Acquiror or any rights of its Subsidiaries or claims against any Financing Party in any way of their respective controlled Affiliates or representatives relating to or arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with Financing, the Debt Financing Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise; (f) agrees that no Financing Party shall have any liability to Seller, any of its Affiliates or any of their respective Representatives arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties Sources are express third party beneficiaries of, and may enforce any of the provisions of this Section 10.2411.18; and (ig) agrees that that, notwithstanding anything to the contrary herein, this Section 10.24 11.18 and the definition of “Debt Financing Sources” and “Financing Parties” (and any provision of this Agreement to the extent an amendment, modification, or waiver of such provision would modify the substance of the foregoing provisions) may not be amended, modified or waived in any manner that is materially adverse to the Debt Financing Parties Sources without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1Lenders. Notwithstanding the foregoing, nothing in this Section 10.24 11.18 shall affect in any way limit or modify the rights and obligations of Buyer against the Financing Parties with respect to the Debt Financing Company or any of the agreements its Subsidiaries under this Agreement or any Debt Financing Source’s (or any other Person’s that entered into agreements in connection with the Debt Financing Financing) obligations to the Company or any of its Subsidiaries under the transactions contemplated thereby Debt Commitment Letter or the performance definitive agreements governing the Debt Financing. This Section 11.18 shall, with respect to the matters referenced herein, supersede any provision of any services thereunderthis Agreement to the contrary.
Appears in 1 contract
Debt Financing. Notwithstanding anything in this Agreement (including, Section 7.4, Section 7.5, Section 8.8, Section 8.11 and Section 8.12) to the contrary, each of Seller and, prior to the Closing, :
(a) the Company, on behalf of itself, itself and its Subsidiaries, hereby agrees that none of the Debt Financing Sources or any of their respective Affiliates will have any liability to the Company or any of its controlled Affiliates Subsidiaries, and neither the Company nor any of its Subsidiaries shall have any right or claim against any Debt Financing Source or any of its Affiliates, in each case, in any way relating to or arising out of this Agreement, the Facilities Agreement or any of the transactions contemplated hereby or thereby (including any Debt Financing) or the performance of any services thereunder, whether at law, in equity, in contract, in tort or otherwise;
(b) the Company, on behalf of itself and its RepresentativesSubsidiaries, hereby: (a) hereby agrees that not to bring or support or permit any Action of its Subsidiaries to bring or support any Legal Proceeding of any kind or description, whether at law, in contract or equity, in contract, in tort or otherwise, involving against any Debt Financing Party, Source or any of their respective Affiliates in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing Facilities Agreement or any of the transactions contemplated hereby or thereby (including the Debt Financing) or the performance of any services thereunder shall be subject to the exclusive jurisdiction of in any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains availableother than The Tribunal de Commerce de Paris, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action to the exclusive jurisdiction of such court; (b) agrees that any such Action Legal Proceeding shall be exclusively governed by by, and construed in accordance with, the laws of the State of New York France (without giving effect to any conflicts of law principles that would result in the application of the laws of another statejurisdiction), except as otherwise expressly provided in any applicable definitive document agreement relating to the Debt Financing; Facilities Agreement;
(c) agrees not to bring or supportParent, or permit any of its controlled Affiliates to bring or supportMerger Sub, any Action, whether in contract or in tort or otherwise, arising out of or relating to this Agreement, Guarantor and the Company hereby agree that the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against any Financing Party and to cause any such Action asserted to be dismissed or otherwise terminated; (d) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Financing Party in any way arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no Financing Party shall have any liability to Seller, any of its Affiliates or any of their respective Representatives arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties Sources are express third party beneficiaries of, and may enforce any of enforce, this Section 8.17; and
(d) Parent, Merger Sub, Guarantor and the Company hereby agree that the provisions of in this Section 10.24; 8.17 and (i) agrees that this Section 10.24 8.13 and the definition of the term “Debt Financing Sources” and “Financing Parties” (and any other definition set forth in, or any other provision of of, this Agreement to the extent that an amendment, modification, waiver or waiver other modification of such definition or other provision would amend, waive or otherwise modify the substance of this Section 8.17, Section 8.13 or the foregoing provisionsdefinition of the term “Debt Financing Sources”) may shall not be amended, modified waived or waived otherwise modified, in each case, in any manner that is materially way adverse to the Debt Financing Parties Sources without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable affected Debt Financing Source(s) (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1. Notwithstanding the foregoingany such amendment, nothing in this Section 10.24 waiver or other modification without such prior written consent shall affect the rights of Buyer against the Financing Parties with respect to the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereunderbe null and void).
Appears in 1 contract
Debt Financing. Notwithstanding anything in this Agreement to the contrary, each of Seller andParent, prior to Merger Subsidiary and the Closing, the Company, Company on behalf of itself, its Subsidiaries, its controlled Affiliates Subsidiaries and its RepresentativesAffiliates, hereby: (a) agrees that any Action Proceeding of any kind or description, whether in contract or in tort or otherwise, involving any the Debt Financing PartySources, arising out of or relating to this Agreement, the Debt Commitment Letter or the Debt Financing or any of the definitive agreements entered into in connection with the Debt Financing or any of the Transactions or the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action action, suit or proceeding to the exclusive jurisdiction of such court; (b) agrees that any such Action Proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise expressly provided in any the Debt Commitment Letter or other applicable definitive document agreement relating to the Debt Financing; (c) agrees not to bring or support, support or permit any of its controlled Affiliates Subsidiaries to bring or supportsupport any Proceeding of any kind or description, any Actionwhether in law or in equity, whether in contract or in tort or otherwise, arising out of or relating to this Agreement, the against any Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder against any Financing Party and to cause any such Action asserted to be dismissed or otherwise terminated; (d) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any such Action brought against any Financing Party Source in any way arising out of or relating to this Agreement, the Debt Financing Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing Transactions or any of the transactions contemplated hereby or thereby or the performance of any services thereunderthereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (d) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such Proceeding in any such court; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Applicable Law trial by jury in any rights or claims Proceeding brought against any the Debt Financing Party Sources in any way arising out of or relating to, to this Agreement, the Debt Financing Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing Transactions or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no none of the Debt Financing Party shall Sources will have any liability to Seller, the Company or any of its Affiliates Subsidiaries or any of their respective Representatives Affiliates or representatives relating to or arising out of or relating to this Agreement, the Debt Financing Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing Transactions or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; , whether in law or in equity, whether in contract or in tort or otherwise, (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, (and each other party hereto agrees that) the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (h) agrees that the Financing Parties Sources are express third party beneficiaries of, and may enforce any of the provisions of Section 11.4(e) and this Section 10.24; 11.14, and (ih) agrees that the provisions of Section 11.4(e), this Section 10.24 11.14 and the definition of “Debt Financing Sources” and “Financing Parties” (and any provision other provisions of this Agreement to the extent an amendment, modification, or waiver of such provision a modification thereof would modify affect the substance of any of the foregoing provisionsforegoing) may shall not be amended, modified or waived amended in any manner that is materially way adverse to the Debt Financing Parties Sources without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1Lenders. Notwithstanding the foregoing, nothing in this Section 10.24 11.14 shall affect in any way limit or modify the rights and obligations of Buyer against Parent and Merger Subsidiary under this Agreement or any Debt Financing Sources’ obligations to Parent and Merger Subsidiary under the Financing Parties Debt Commitment Letter or Parent and Merger Subsidiary (and following the Closing Date, the Company or any of the Company’s Subsidiaries), under the definitive agreements governing the Debt Financing. This Section 11.14 shall, with respect to the Debt Financing or matters referenced herein, supersede any provision of this Agreement to the agreements entered into in connection with the Debt Financing or any of the transactions contemplated thereby or the performance of any services thereundercontrary.
Appears in 1 contract
Samples: Merger Agreement (Veritiv Corp)
Debt Financing. Notwithstanding anything to the contrary contained in this Agreement to the contraryAgreement, each of Seller and, prior the parties to the Closing, the Company, on behalf of itself, its Subsidiaries, its controlled Affiliates and its Representatives, herebythis Agreement: (ai) agrees that it will not bring or support any Action person, or permit any of its affiliates to bring or support any person, in any litigation of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, involving against any Debt Financing PartySource in any way relating to this Agreement or any of the Transactions, including, but not limited to, any dispute arising out of or relating in any way to this Agreementthe Commitment Papers or the performance thereof or the financings contemplated thereby, in any forum other than the state or federal courts located in New York County, State of New York; (ii) agrees that, except as specifically set forth in the Commitment Papers, all litigation (whether at law, in equity, in contract, in tort or otherwise) against any of the Debt Financing or Sources in any of way relating to the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby Commitment Papers or the performance of any services thereunder thereof or the financings contemplated thereby, shall be subject to the exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, New York, New York, so long as such forum is and remains availableexclusively governed by, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action to construed in accordance with, the exclusive jurisdiction of such court; (b) agrees that any such Action shall be governed by the internal laws of the State of New York (York, without giving effect to any conflicts principles or rules of law conflict of laws to the extent such principles that or rules would result in require or permit the application of the laws of another state)jurisdiction; and (iii) HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (WHETHER AT LAW OR IN EQUITY, except as otherwise expressly provided IN CONTRACT, IN TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING IN ANY WAY TO THE COMMITMENT PAPERS OR THE PERFORMANCE THEREOF OR THE FINANCING CONTEMPLATED THEREBY. Other than SPAC in any applicable definitive document agreement relating to accordance with the Debt Financing; (c) agrees not to bring or supportexpress terms of the Commitment Papers, or permit any each of its controlled Affiliates to bring or support, any Action, whether in contract or in tort or otherwise, arising out of or relating parties to this Agreement, on behalf of itself and each of their respective Subsidiaries and affiliates, and each director, officer, employee, agent or representative of the Debt Financing foregoing persons or any person acting on behalf of any of the agreements entered into in connection with the Debt Financing or foregoing persons hereby waives any of the transactions contemplated hereby or thereby or the performance of any services thereunder against any Financing Party and to cause any such Action asserted to be dismissed or otherwise terminated; (d) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any such Action brought against any Financing Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any all rights or claims against any Financing Party in any way arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that no Financing Party shall have any liability to Seller, any of its Affiliates or any of their respective Representatives arising out of or relating to this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (g) agrees that no Financing Party shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature Source in connection with this Agreement, the Debt Financing or any of Financing, the agreements entered into in connection with the Debt Financing or any of Commitment Papers and/or the transactions contemplated hereby and thereby, whether at law or thereby equity, in contract, in tort or the performance of any services thereunder; (h) agrees that the Financing Parties are express third party beneficiaries ofotherwise, and may enforce any of the provisions of this Section 10.24; and (i) each such person agrees that this Section 10.24 and the definition of “Financing Sources” and “Financing Parties” not to commence (and if commenced agrees to dismiss or otherwise terminate) any provision of this Agreement to the extent an amendment, modification, proceeding or waiver of such provision would modify the substance of the foregoing provisions) may not be amended, modified legal or waived in equitable action against any manner that is materially adverse to the Financing Parties without the prior written consent of the Financing Sources; provided that notwithstanding the foregoing, this Section 10.24 shall apply solely to the extent the Group Companies have been provided notice of the existence of any applicable Debt Financing (and received copies of the agreements related thereto) as required pursuant to Section 8.11.1. Notwithstanding the foregoing, nothing in this Section 10.24 shall affect the rights of Buyer against the Financing Parties with respect to the Debt Financing or any of the agreements entered into Source in connection with this Agreement, the Debt Financing or any of Financing, the Commitment Papers and/or the transactions contemplated hereby and thereby (including any such proceeding or action relating to the Financing) and it is agreed that no Debt Financing Source shall have any liability or obligations, including for any claims, losses, settlements, liabilities, damages, costs, expenses, fines or penalties to any party to this Agreement in connection with this Agreement or the performance transactions contemplated hereby (other than to SPAC in accordance with the terms of any services thereunderthe Commitment Papers).
Appears in 1 contract
Samples: Business Combination Agreement (CHW Acquisition Corp)
