Common use of No Recourse Against Non-Parties Clause in Contracts

No Recourse Against Non-Parties. Except to the extent otherwise set forth in the Merger Agreement and Power of Attorney, all claims, obligations, Liabilities or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with or relate in any manner to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made by the parties hereto only against (and such representations and warranties are those solely of) the Persons that are expressly identified as parties in the preamble to this Agreement (the “Contracting Parties”). Except as set forth in the Power of Attorney and the Merger Agreement, no Person who is not a Contracting Party, including any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, or assignee of any Contracting Party, or any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, or assignee of any of the foregoing (collectively, the “Nonparty Affiliates”), shall have any Liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations, or Liabilities arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, execution, performance, or breach and, to the maximum extent permitted by Law, each Contracting Party hereby waives and releases all such Liabilities, claims, causes of action, and obligations against any such Nonparty Affiliates of another Contracting Party. Without limiting the foregoing, to the maximum extent permitted by Law, except with respect to rights, claims, demands and causes of action arising under or in respect of the Merger Agreement and the Power of Attorney, each Contracting Party hereby waives and releases any and all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose Liability of a Contracting Party on any other Contracting Party’s Nonparty Affiliate in respect of this Agreement, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise. Notwithstanding anything in this Agreement to the contrary (x) for the avoidance of doubt, nothing in this Agreement (including the provisions of Section 4.7 or this Section 8.12) shall limit in any way (i) the terms and conditions of the Power of Attorney or the Merger Agreement or any rights that Purchaser or any of its Affiliates has thereunder or (ii) any parties’ right to obtain Damages, to the extent proven, against Apco for Intentional Breach of the Merger Agreement and (y) following the Merger, Purchaser shall be entitled to obtain Damages, to the extent proven, from Seller for any Intentional Breach by Apco of which Seller had Knowledge of (i) the specific representations and warranties made as of the date hereof and set forth in Article IV the Merger Agreement or the representations and warranties made as of the Merger Closing Date to the standard set forth in the certificate delivered pursuant to Section 7.2(d) of the Merger Agreement and (ii) any of the covenants set forth in Article VI of the Merger Agreement to the standard set forth in the certificate delivered pursuant to Section 7.2(d); provided, that any such claim by Purchaser must be commenced within twelve (12) months following the Closing.

No Recourse Against Non-Parties. Except to the extent otherwise set forth in the Merger Agreement Guarantee, dated as of the date of this Agreement, between Seller, Aquiline Financial Services Fund II, L.P. and Power of AttorneyGenstar Capital Partners VI, L.P. or the Interim Investors Agreement, all claims, obligations, Liabilities claims or causes of action (whether based in contract, tort, law, equity, fraud, strict liability or otherwise) that may be based upon, arise out of or relate to this Agreement, any Debt Financing Commitment or the transactions contemplated hereby may be made only against the Persons that are expressly identified as parties to this Agreement. Seller covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any legal proceeding against any Debt Financing Source (whether based in contract, tort, law, equity, fraud, strict liability or otherwise) for any obligations or liabilities arising under, in connection with or related to this Agreement, any Debt Financing Commitment or the transactions contemplated hereby or for any claim based on, in respect of, or by reason of this Agreement, any Debt Financing Commitment or the transactions contemplated hereby. No person who is not a named party to this Agreement, including any past, present or future director, officer, employee, incorporator, member, manager, partner, equityholder, Affiliate, Debt Financing Sources, agent, attorney or representative of any named party to this Agreement (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or granted by statutebased upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) that may be based uponfor any obligations or liabilities arising under, in respect of, arise under, out or by reason of, be connected connection with or relate in any manner related to this Agreement, any Debt Financing Commitment or the negotiation, execution transactions contemplated hereby or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made by the parties hereto only against (and such representations and warranties are those solely of) the Persons that are expressly identified as parties in the preamble to this Agreement (the “Contracting Parties”). Except as set forth in the Power of Attorney and the Merger Agreement, no Person who is not a Contracting Party, including any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, or assignee of any Contracting Party, or any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, or assignee of any of the foregoing (collectively, the “Nonparty Affiliates”), shall have any Liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations, or Liabilities arising under, out of, in connection with, or related in any manner to this Agreement or claim based on, in respect of, or by reason of this Agreement Agreement, any Debt Financing Commitment or its negotiationthe transactions contemplated hereby, execution, performance, or breach and, to the maximum extent permitted by Law, and each Contracting Party hereby party hereto waives and releases all such Liabilitiesliabilities, claims, causes of action, claims and obligations against any such Nonparty Affiliates of another Contracting Party. Without limiting the foregoingNon-Party Affiliates; provided, however, that nothing in this Section 12.12 shall prohibit Parent, Borrowers or Buyer from taking any action against any party to the maximum extent permitted by Law, except with respect to rights, claims, demands and causes of action arising under Debt Financing Commitment or in respect connection with the transactions contemplated thereby. Non-Party Affiliates are expressly intended as third-party beneficiaries of the Merger Agreement and the Power of Attorney, each Contracting Party hereby waives and releases any and all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose Liability of a Contracting Party on any other Contracting Party’s Nonparty Affiliate in respect this provision of this Agreement, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise. Notwithstanding anything in this Agreement to the contrary (x) for For the avoidance of doubt, nothing no Debt Financing Source shall have any liability or obligation (whether based in this Agreement (including the provisions of Section 4.7 contract, tort, law, xxxxxx, xxxxx, xxxxxx liability or this Section 8.12otherwise) shall limit in any way (i) the terms and conditions of the Power of Attorney or the Merger Agreement or any rights that Purchaser or to Seller, any of its Affiliates has thereunder or (ii) any parties’ right of their respective successors, heirs or representatives arising out of or relating to obtain Damagesthis Agreement, to the extent proven, against Apco for Intentional Breach of the Merger Agreement and (y) following the Merger, Purchaser shall be entitled to obtain Damages, to the extent proven, from Seller for any Intentional Breach by Apco of which Seller had Knowledge of (i) the specific representations and warranties made as of the date hereof and set forth in Article IV the Merger Agreement Debt Financing Commitment or the representations and warranties made as transactions contemplated hereby or thereby. [Remainder of the Merger Closing Date to the standard set forth in the certificate delivered pursuant to Section 7.2(d) of the Merger Agreement and (ii) any of the covenants set forth in Article VI of the Merger Agreement to the standard set forth in the certificate delivered pursuant to Section 7.2(d)page intentionally left blank; provided, that any such claim by Purchaser must be commenced within twelve (12) months following the Closingsignature page follows.]

No Recourse Against Non-Parties. Except to the extent otherwise set forth in the Merger This Agreement may only be enforced against, and Power any Action based upon or arising out of Attorney, all claims, obligations, Liabilities or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with or relate in any manner to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in, in or in connection with, with this Agreement or as an inducement to, to enter into this Agreement), may only be made by brought against the parties hereto only against (and such representations and warranties are those solely of) the Persons entities that are expressly identified named as parties in hereto and then only with respect to the preamble to this Agreement (the “Contracting Parties”). Except as specific obligations set forth in herein with respect to such party. Neither the Power of Attorney and Buyer Related Parties nor the Merger Agreement, no Person who is not a Contracting Party, including any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, or assignee of any Contracting Party, or any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, or assignee of any of the foregoing (collectively, the “Nonparty Affiliates”), Seller Related Parties shall have any Liability liability (whether in contract or in tort, in law or in equity, or granted by statutebased upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any claims, causes obligations or liabilities of action, obligations, or Liabilities arising under, out of, in connection with, or related in any manner to party hereto under this Agreement or for any claim or Action based on, in respect of, of or by reason of this Agreement or its negotiation, execution, performance, or breach and, to the maximum extent permitted by Law, each Contracting transactions contemplated hereby. The Seller Party hereby waives Persons waive and releases release all such Liabilitiesliabilities, claims, causes of action, claims and obligations against any such Nonparty Buyer Related Party and the Buyer and its Affiliates and each of another Contracting their respective officers, directors, employees, partners, members, managers, agents, attorneys, representatives, successors or permitted assigns waive and release all such liabilities, claims and obligations against any such Seller Related Party. Without limiting The parties hereto hereby acknowledge and agree that the foregoing, to the maximum extent permitted by Law, except with respect to rights, claims, demands and causes of action arising under or agreements contained in respect this Section 11.4 are an integral part of the Merger Agreement transactions contemplated by this Agreement, and that, without these agreements, the Power parties would not have entered into this Agreement. The Buyer Related Parties and Seller Related Parties are expressly intended as third-party beneficiaries of Attorney, each Contracting Party hereby waives and releases any and all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose Liability of a Contracting Party on any other Contracting Party’s Nonparty Affiliate in respect this provision of this Agreement, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise. Notwithstanding anything in this Agreement to the contrary (x) for the avoidance of doubtforegoing, nothing in this Agreement (including the provisions of Section 4.7 or this Section 8.12) 11.4 shall limit in any way (i) limit or modify the terms right and conditions obligations of any Debt Financing Source’s obligations to Buyer under the Power of Attorney or the Merger Agreement or any rights that Purchaser or any of its Affiliates has thereunder or (ii) any parties’ right to obtain Damages, to the extent proven, against Apco for Intentional Breach of the Merger Agreement and (y) following the Merger, Purchaser shall be entitled to obtain Damages, to the extent proven, from Seller for any Intentional Breach by Apco of which Seller had Knowledge of (i) the specific representations and warranties made as of the date hereof and set forth in Article IV the Merger Agreement or the representations and warranties made as of the Merger Closing Date to the standard set forth in the certificate delivered pursuant to Section 7.2(d) of the Merger Agreement and (ii) any of the covenants set forth in Article VI of the Merger Agreement to the standard set forth in the certificate delivered pursuant to Section 7.2(d); provided, that any such claim by Purchaser must be commenced within twelve (12) months following the ClosingDebt Commitment Letter.

No Recourse Against Non-Parties. Except to the extent otherwise set forth in the Merger Agreement and Power of Attorney, all claims, obligations, Liabilities All claims or causes of action (whether in contract or in tort, in law, in equity or under any other theory) that may be based upon, arise out Portions of this Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. CONFIDENTIAL TREATMENT REQUESTED of or relate to this Agreement or any other Transaction Document, or the negotiation, execution or performance of this Agreement or any other Transaction Document (including any representation or warranty made in or in connection with this Agreement or any other Transaction Document or as an inducement to enter into this Agreement or any other Transaction Document), may be made only against Persons that are expressly identified as parties hereto or thereto, as applicable, or, to the extent of the assignment by a party to this Agreement or any other Transaction Document of the obligations, liabilities or claims relating to such claim or cause of action to a permitted assignee, the permitted assignees thereof. No Person who is not a named party to this Agreement or any other Transaction Document (other than, to the extent of the assignment by a party to this Agreement or any other Transaction Document of the obligations, liabilities or claims relating thereto to a permitted assignee, a permitted assignee thereof), including without limitation any past, present or future director, officer, employee, incorporator, member, manager, partner, equityholder, Affiliate, agent, attorney or representative of any named party to this Agreement (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or granted by statutebased upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) that may be based upon, in respect of, arise for any obligations or liabilities arising under, out or by reason of, be connected with or relate in any manner to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made by the parties hereto only against (and such representations and warranties are those solely of) the Persons that are expressly identified as parties in the preamble to this Agreement (the “Contracting Parties”). Except as set forth in the Power of Attorney and the Merger Agreement, no Person who is not a Contracting Party, including any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, or assignee of any Contracting Party, or any current, former or future director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, or assignee of any of the foregoing (collectively, the “Nonparty Affiliates”), shall have any Liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations, or Liabilities arising under, out of, in connection with, with or related in any manner to this Agreement or any other Transaction Document or for any claim based on, in respect of, or by reason of this Agreement or its negotiationany other Transaction Document or the negotiation or execution of this Agreement or any other Transaction Document, execution, performance, or breach and, to the maximum extent permitted by Law, and each Contracting Party hereby party hereto waives and releases all such Liabilitiesliabilities, claims, causes of action, claims and obligations against any such Nonparty Non-Party Affiliates. Non-Party Affiliates of another Contracting Party. Without limiting the foregoing, to the maximum extent permitted by Law, except with respect to rights, claims, demands and causes of action arising under or in respect of the Merger Agreement and the Power of Attorney, each Contracting Party hereby waives and releases any and all rights, claims, demands, or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose Liability of a Contracting Party on any other Contracting Party’s Nonparty Affiliate in respect are expressly intended as third party beneficiaries of this Agreement, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise. Notwithstanding anything in this Agreement to the contrary (x) for the avoidance of doubt, nothing in this Agreement (including the provisions of Section 4.7 or this Section 8.12) shall limit in any way (i) the terms and conditions of the Power of Attorney or the Merger Agreement or any rights that Purchaser or any of its Affiliates has thereunder or (ii) any parties’ right to obtain Damages, to the extent proven, against Apco for Intentional Breach of the Merger Agreement and (y) following the Merger, Purchaser shall be entitled to obtain Damages, to the extent proven, from Seller for any Intentional Breach by Apco of which Seller had Knowledge of (i) the specific representations and warranties made as of the date hereof and set forth in Article IV the Merger Agreement or the representations and warranties made as of the Merger Closing Date to the standard set forth in the certificate delivered pursuant to Section 7.2(d) of the Merger Agreement and (ii) any of the covenants set forth in Article VI of the Merger Agreement to the standard set forth in the certificate delivered pursuant to Section 7.2(d9.05(g); provided, that any such claim by Purchaser must be commenced within twelve (12) months following the Closing.