TO THE FULLEST. EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF BORROWER, GUARANTOR, AND LENDER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY ANY RIGHT, POWER, REMEDY, OR DEFENSE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR WITH RESPECT TO ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY PARTY; AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. EACH OF BORROWER, GUARANTOR, AND LENDER FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. FURTHER, BORROWER AND GUARANTOR HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF LENDER, INCLUDING LENDER'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. BORROWER AND GUARANTOR ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO LENDER'S ACCEPTANCE OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. The waiver and stipulations of Borrower, Guarantor, and Lender in this Section 11.13 shall survive the final payment or performance of all of the Obligations and the resulting termination of this Agreement.
TO THE FULLEST. EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT (A) AS A RESULT OF FRAUD OR WILLFUL MISCONDUCT AND (B) TO THE EXTENT OWED BY THE INDEMNIFIED PARTY TO A THIRD PARTY UNDER A THIRD PARTY CLAIM, NEITHER HORIZON NOR ASTRAZENECA SHALL BE LIABLE TO THE OTHER, OR THEIR AFFILIATES, FOR ANY CLAIMS, DEMANDS OR SUITS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE, INDIRECT OR MULTIPLE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE OR INCOME, DIMINUTION IN VALUE OR LOSS OF BUSINESS OPPORTUNITY (WHETHER OR NOT FORESEEABLE AT THE EXECUTION DATE), CONNECTED WITH OR RESULTING FROM ANY BREACH OF THIS AGREEMENT, OR ANY ACTIONS UNDERTAKEN IN CONNECTION WITH, OR RELATED HERETO, INCLUDING ANY SUCH DAMAGES WHICH ARE BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND MISREPRESENTATION), BREACH OF WARRANTY, STRICT LIABILITY, STATUTE, OPERATION OF LAW OR ANY OTHER THEORY OF RECOVERY.
TO THE FULLEST. EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
TO THE FULLEST. EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND EACH SUBSIDIARY GUARANTOR IRREVOCABLY AGREES THAT ANY LEGAL SUIT, ACTION OR PROCEEDING BROUGHT BY ANY INITIAL PURCHASER OR BY ANY PERSON WHO CONTROLS SUCH INITIAL PURCHASER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK, NEW YORK, AND IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
TO THE FULLEST. EXTENT PERMITTED BY APPLICABLE LAW, BORROWER, AGENT AND LENDERS EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE FINANCING DOCUMENTS (OTHER THAN THE SWISS SECURITY DOCUMENTS) OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
TO THE FULLEST. EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, THE CREDIT AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF. [REMAINDER OF PAGE INTENTIONALLY BLANK] EXECUTED as of the day midyear first written above. GUARANTORS: PEGASUS NO. 1, LLC By: /s/ William C. Hammett, Jr. Manager PEGASUS NO.2, LLC By: /s/ William C. Hammett, Jr. Manager PEGASUS GP, LLC By: Pegasus Solutions, Inc., its Sole Member By: /s/ Ric L.Floyd Executive Vice Presixxxx PEGASUS BUSINESS INTELLIGENCE, LP, (successor by merger to Pegasus Electronic Distribution, LP and Pegasus Commission Processing, LP) By Pegasus GP. LLC, its General Partner By: Pegasus Solutions, Inc., its Sole Member By: /s/ Ric L. Floyd Executive Vice Prexxxxxx PEGASUS SOLUTIONS COMPANIES, (successor by merger to Pegasus Solutions Acquisition Company [formerly known as REZ, Inc ], Anasazi Service Corporation and Anasazi Travel Resources, Inc, and formerly known as Rezolutions, Inc.) By: /s/ Ric L. Floyd Executive Vice Prexxxxxx **************************************************************************** AMENDED AND RESTATED CONTRIBUTION AND INDEMNIFICATION AGREEMENT AMENDED AND RESTATED CONTRIBUTION AND INDEMNIFICATION AGREEMENT ("Agreement") dated us of March 31, 2002, among Pegasus Solutions, Inc., formerly known as Pegasus Systems, Inc., a Delaware corporation (the "Borrower"), and the undersigned guarantors (each a "Guarantor and, collectively, the "Guarantors," and together with the Borrower, each a "Company" and, collectively, the "Companies").
TO THE FULLEST. EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS (EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED, AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF, OR RELATED TO, THIS LICENSE OR THE SPECIFICATIONS, INCLUDING THE USE OR PERFORMANCE OF THE SPECIFICATIONS AND OF ANY PRODUCTS OR SERVICES IMPLEMENTING, IN WHOLE OR IN PART, THE SPECIFICATIONS.
TO THE FULLEST. EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED HEREIN: (a) IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (b) IN NO EVENT SHALL DEDISTRIBUTED'S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO DEDISTRIBUTED BY YOU UNDER THE APPLICABLE ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICE, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
TO THE FULLEST. EXTENT ALLOWED BY LAW, FINANCIAL INSTITUTION’S LIABILITY TO YOU UNDER THIS MASTER AGREEMENT OR ANY APPLICABLE PRODUCT SCHEDULE SHALL BE LIMITED TO CORRECTING ERRORS RESULTING FROM FINANCIAL INSTITUTION’S FAILURE TO EXERCISE ORDINARY CARE OR TO ACT IN GOOD FAITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL FINANCIAL INSTITUTION BE LIABLE TO YOU FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU AND RECEIVED BY FINANCIAL INSTITUTION DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WHICH SHALL BE DETERMINED BY THE EARLIER OF THE DATE WHEN YOU FIRST BECAME AWARE OF THE CLAIM OR THE DATE WHEN, THROUGH THE EXERCISE OF REASONABLE CARE, YOU REASONABLY SHOULD HAVE BECOME AWARE OF THE CLAIM. 10.10.3. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED BY FINANCIAL INSTITUTION ON AN “AS IS” BASIS.
TO THE FULLEST. EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET OUT ABOVE IN THIS AGREEMENT, CONTENTSQUARE MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS WARRANTIES, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER WITH RESPECT TO THE CS SOLUTION, SCRIPTS, DOCUMENTATION, OR ADDITIONAL SERVICES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, QUALITY, PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FOR THE AVOIDANCE OF DOUBT, CONTENTSQUARE DOES NOT WARRANT THAT THE CS SOLUTION, SCRIPTS, DOCUMENTATION, OR ADDITIONAL SERVICES SHALL MEET CUSTOMER NEEDS, BE ERROR FREE, OR THAT THE OPERATION OF THE CS SOLUTION WILL BE UNINTERRUPTED. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE CS SOLUTION BY CUSTOMER AND FOR CONCLUSIONS DRAWN FROM SUCH USE. CONTENTSQUARE SHALL HAVE NO LIABILITY FOR ANY DAMAGES CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO CONTENTSQUARE BY CUSTOMER IN CONNECTION WITH THE CS SOLUTIONS OR ANY ACTIONS BY CONTENTSQUARE AT CUSTOMER’S DIRECTION. THE CS SOLUTION, SCRIPTS, DOCUMENTATION, OR ADDITIONAL SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORM THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES.
