Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject to the proviso at the end of this paragraph), each Party, on behalf of itself, its Subsidiaries, its controlled Affiliates and the Representatives of each of the foregoing, hereby: (a) agrees that any Proceeding involving a Debt Financing Source arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter 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 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 irrevocably submits itself and its property with respect to any such Proceeding to the exclusive jurisdiction of such court, (b) agrees that any such Proceeding (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 that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the Laws 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), (c) agrees not to bring or support any Proceeding of any kind 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder 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 any such Proceeding in any such court, (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in any Proceeding brought against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) agrees that no Debt Financing Source 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against any Debt Financing Source and agrees that no Debt Financing Source will have any liability to the Partnership, any of its Subsidiaries or any of their respective Representatives, and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Debt Financing Source, in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt 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, (h) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, this Section 8.14 and (i) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision or definition in this Agreement to the extent an amendment, modification, waiver or termination of such provision or definition would modify the substance of any of the foregoing provisions or definitions) may not be amended, modified, waived or terminated 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; provided that notwithstanding the foregoing, nothing in this Section 8.14 shall in any way limit or modify the obligations of any Debt Financing Source to the Parent or any of its Subsidiaries, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case under the Debt Commitment Letter or the definitive agreements executed in connection with the Debt Financing.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (GasLog Ltd.), Agreement and Plan of Merger (GasLog Ltd.), Agreement and Plan of Merger (GasLog Partners LP)
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject to the proviso at the end of this paragraph), each Party, on behalf of itself, The Company and its Subsidiaries, its controlled Affiliates acknowledge and the Representatives of each of the foregoing, hereby: agree that (a) agrees that any Proceeding involving a each Debt Financing Source arising out of will act as an independent contractor for the Parent and no fiduciary, advisory or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with agency relationship between the Debt Financing Sources, on the one hand, and the Parent or the Debt Commitment Letter Company, on the other hand, is intended to be or has been created in respect of any of the transactions contemplated hereby by this Agreement and the Debt Financing, irrespective of whether the Debt Financing Sources have advised or thereby are advising the Parent or the performance of any services thereunder 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 each Party irrevocably submits itself and its property with respect to any such Proceeding to the exclusive jurisdiction of such courtCompany on other matters, (b) agrees that any such Proceeding (except to each Debt Financing Source is acting solely as a principal and not as an agent of the extent relating to Parent under the interpretation of any provisions in this Agreement (including any provision in any documentation related to Debt Commitment Letter and the Debt Financing Sources, on the one hand, and the Parent, on the other hand, have an arm’s-length business relationship that expressly specifies that does not directly or indirectly give rise to, nor do Parent or the interpretation of such provisions shall be governed by and construed in accordance with Company rely on, any fiduciary duty on the Laws part 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)Debt Financing Sources, (c) agrees not to bring or support any Proceeding the Parent and the Company are capable of any kind or descriptionevaluating and understanding, whether in law or in equityand Parent and the Company understand and accept, whether in contract or in tort or otherwisethe terms, against any Debt Financing Source in any way arising out risks and conditions of or relating to the transactions contemplated by this Agreement, Agreement and the Debt Financing, (d) Parent and the Debt Commitment Letter or any of the agreements entered into in connection with Company have been advised that the Debt Financing Sources are engaged in a broad range of transactions that may involve interests that differ from the Parent’s or the Company’s interests and that the Debt Commitment Letter or Financing Sources do not have any of obligation to disclose such interests and transactions to the transactions contemplated hereby or thereby Parent or the performance Company by virtue of any services thereunder in any forum other than any federal fiduciary, advisory 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 any such Proceeding in any such court, agency relationship and (e) knowinglythe Company and its Affiliates waive, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in law, any Proceeding brought claims the Company and its Affiliates may have against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing Sources for breach of fiduciary duty or the Debt Commitment Letter or any alleged breach of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) agrees that no Debt Financing Source 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against any Debt Financing Source fiduciary duty and agrees that no Debt Financing Source will have any liability to the Partnership, any of its Subsidiaries or any of their respective Representatives, and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Debt Financing Source, in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt 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, (h) agrees agree that the Debt Financing Sources are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, this Section 8.14 and not have any liability (iwhether direct or indirect) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision or definition in this Agreement to the extent an amendment, modification, waiver or termination Company and its Affiliates in respect of such provision a fiduciary duty claim or definition would modify the substance to any person asserting a fiduciary duty claim on behalf of any or in right of the foregoing provisions Company, including the Company’s stockholders, employees or definitions) may not be amended, modified, waived or terminated 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; provided creditors. The Company and its Affiliates further acknowledge and agree that notwithstanding the foregoing, nothing in this Section 8.14 shall in any way limit or modify the obligations of any Debt Financing Source to the Parent or any of its Subsidiaries, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case under the Debt Commitment Letter is not intended to confer any benefits upon, or create any rights in favor of, any person (including the definitive agreements executed in connection with Company) other than the Debt Financingparties thereto.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Verso Paper Corp.), Agreement and Plan of Merger (NewPage Holdings Inc.)
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject to the proviso at the end of this paragraph)contrary, each Party, of the parties on behalf of itself, its Subsidiaries, its controlled Affiliates itself and the Representatives of each of the foregoing, its affiliates hereby: (a) agrees that any Proceeding Action, whether in law or in equity, whether in contract or in tort or otherwise, involving a the Debt Financing Source Sources, arising out of or relating to to, this Agreement, the Debt Financing, the Debt Commitment Letter Letter, the definitive documents governing the Debt Financing or any of the agreements entered into in connection with the Debt Financing or Financing, the Debt Commitment Letter or the definitive documents governing 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 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 party irrevocably submits itself and its property with respect to any such Proceeding Action to the exclusive jurisdiction of such court, (b) agrees that any such Proceeding (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 that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the Laws 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), (c) agrees not to bring or support or permit any Proceeding of its affiliates to bring or support any Action, including any 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, against any the Debt Financing Source Sources in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter Letter, the definitive documents governing the Debt Financing or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (dc) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any such Proceeding Action in any such court, (ed) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in any Proceeding Action brought against any the Debt Financing Source Sources in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter Letter, the definitive documents governing the Debt Financing or any of the agreements entered into in connection with the Debt Financing or Financing, a Debt Commitment Letter, the definitive documents governing the Debt Commitment Letter Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (e) waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action involving any Debt Financing Source or the transactions contemplated hereby, any claim that it is not subject to the jurisdiction of the courts in New York as described herein for any reason, (f) agrees that no Debt Financing Source shall be subject to any special, consequential, punitive or indirect damages or damages none of a tortious nature in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against any Debt Financing Source and agrees that no Debt Financing Source Sources will have any liability to the Partnership, any of its Subsidiaries the Parties or any of their respective Representativescontrolled Affiliates or Representatives (in each case, and hereby knowingly, intentionally and voluntarily waives other than under any binding agreement to the fullest extent permitted by applicable Law any rights or claims against any which a Debt Financing Sourceis a party, in connection with including the Debt Commitment Letter) relating to or arising out of this Agreement, the Debt FinancingCommitment Letter, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt 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, (g) hereby waives any and all claims and causes of action against the Debt Financing Sources relating to or arising out of this Agreement, the Debt Commitment Letter, 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 (in each case, other than Buyer pursuant to the terms of the Debt Financing or the Debt Commitment Letter), (h) agrees not to commence (and if commenced agree to dismiss or otherwise terminate, and not to assist) any Action against any Debt Financing Sources under this Agreement, the Debt Financing, the Debt Commitment Letter or the transactions contemplated hereby or thereby (in each case, other than Buyer pursuant to the terms of the Debt Financing or the Debt Commitment Letter), and (i) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, any of the provisions in this Section 8.14 12.14 and (i) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision or definition in this Agreement 12.8 to the extent an amendment, modification, waiver or termination of contemplated thereby (and to the extent any amendments to such provision or definition would modify the substance of any of the foregoing provisions or definitions) may not be amended, modified, waived or terminated in any way are materially adverse to the Debt Financing Sources Sources, such provisions shall not be amended without the prior written consent of the Debt Financing Sources party Sources). Notwithstanding anything contained herein to the Debt Commitment Letter; provided that notwithstanding the foregoingcontrary, nothing in this Section 8.14 12.14 shall in any way limit affect any party’s or modify the obligations any of their respective affiliates’ rights and remedies under any binding agreement to which a Debt Financing Source to the Parent or any of its Subsidiariesis a party, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case under including the Debt Commitment Letter or the definitive agreements executed in connection with the Debt FinancingLetter.
Appears in 1 contract
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject to the proviso at the end of this paragraph)contrary, each Party, of the parties on behalf of itself, its Subsidiaries, its controlled Affiliates itself and the Representatives of each of the foregoing, its Affiliates hereby: (a) agrees that any Proceeding Action, whether in law or in equity, whether in contract or in tort or otherwise, involving a the Debt Financing Source Sources, arising out of or relating to to, this Agreement, the Debt Financing, the Debt Commitment Letter Documentation, the definitive documentation governing the Debt Financing or any of the agreements entered into in connection with the Debt Financing or Financing, the Debt Commitment Letter Documentation or the definitive documentation governing 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 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 party irrevocably submits itself and its property with respect to any such Proceeding Action to the exclusive jurisdiction of such court, (b) agrees that any such Proceeding (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 that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the Laws 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), (c) agrees not to bring or support or permit any Proceeding of its Affiliates to bring or support any Action, including any 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, against any the Debt Financing Source Sources in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter Documentation, the definitive documentation governing the Debt Financing or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (dc) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any such Proceeding Action in any such court, (ed) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in any Proceeding Action brought against any the Debt Financing Source Sources in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter Documentation, the definitive documentation governing the Debt Financing or any of the agreements entered into in connection with the Debt Financing or Financing, the Debt Commitment Letter Documentation, the definitive documentation governing the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (e) agrees that none of the Debt Financing Sources will have any liability to any of the Company, the Seller, the Parent or any of their respective Affiliates or Representatives relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Documentation, the definitive documentation governing the Debt Financing or any of the agreements entered into in connection with the Debt Financing, the Debt Commitment Documentation or the definitive documentation governing the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder and that it shall not and shall not permit any of its Affiliates or any of their respective officers, directors, or employees to seek any action for specific performance against any of the Debt Financing Sources relating to or in any way arising out of this Agreement, the Debt Financing, the Debt Commitment Documentation, the definitive documentation governing the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) waives, and agrees that no Debt Financing Source shall be subject not to assert, by way of motion or as a defense, counterclaim or otherwise, in any special, consequential, punitive or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against Action involving any Debt Financing Source and agrees that no Debt Financing Source will have any liability to the Partnership, any of its Subsidiaries or any of their respective Representatives, and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Debt Financing Source, in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or hereby, any claim that it is not personally subject to the performance jurisdiction of the courts in New York as described herein for any services thereunderreason, whether in law or in equity, whether in contract or in tort or otherwise, and (hg) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, any of the provisions in this Section 8.14 11.16 and (i) agrees that Sections 7.2Section 10.03(e), 8.4Section 11.06, 8.15 Section 11.07, Section 11.08 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision or definition in this Agreement 11.10 to the extent an amendment, modification, waiver or termination of contemplated thereby (and to the extent any amendments to such provision or definition would modify the substance of any of the foregoing provisions or definitions) may not be amended, modified, waived or terminated in any way are materially adverse to the Debt Financing Sources Sources, such provisions shall not be amended without the prior written consent of the Debt Financing Sources party to the Debt Commitment Letter; provided that notwithstanding ). Notwithstanding anything contained herein to the foregoingcontrary, nothing in this Section 8.14 11.16 shall in any way limit affect any party’s or modify the obligations any of their respective Affiliates’ rights and remedies under any binding agreement to which a Debt Financing Source to the Parent or any of its Subsidiaries, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case under the Debt Commitment Letter or the definitive agreements executed in connection with the Debt Financingis a party.
Appears in 1 contract
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject to the proviso at the end of contained in this paragraph)Agreement, each Party, on behalf of itself, its Subsidiaries, its controlled Affiliates and the Representatives of each of the foregoing, herebyparties hereto: (a) agrees that any Proceeding involving a Debt Financing Source arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter 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 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 irrevocably submits itself and its property with respect to any such Proceeding to the exclusive jurisdiction of such court, (b) agrees that any such Proceeding (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 that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the Laws 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), (c) agrees it will not to bring or support any Proceeding person in any action, suit, proceeding, 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, against any of the Debt Financing Source Sources in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter 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 Commitment Letter or the performance of any services thereunder thereof or the Debt Financing contemplated thereby, in any forum other than any the federal or state court and New York State courts located in the Borough of Manhattan, Manhattan of the City of New York; (b) agrees that, except as specifically set forth in the Debt Commitment Letter, all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any of the Debt Financing Sources in any way relating to the Debt Commitment Letter, the performance thereof or its negotiation, execution, performance or breach or any transaction contemplated hereby or the Debt Financing contemplated thereby, shall be exclusively governed by, and construed in accordance with, the Laws of the State of New York, ; and (dc) hereby irrevocably waives, and unconditionally waives any right such party may have to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any such Proceeding in any such court, (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of a trial by jury in any Proceeding brought against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance respect of any services thereunder, litigation (f) agrees that no Debt Financing Source 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against any Debt Financing Source and agrees that no Debt Financing Source will have any liability to the Partnership, any of its Subsidiaries or any of their respective Representatives, and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Debt Financing Source, in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt 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) directly or indirectly arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the Debt Financing contemplated thereby. Notwithstanding anything to the contrary contained in this Agreement, (hi) agrees Seller and the Precoat Business and their respective representatives, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders shall not have any rights or claims against any Debt Financing Source, in any way relating to this Agreement or any of the transactions contemplated by this Agreement or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the Debt Financing contemplated thereby, whether based on contract, tort or strict liability by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation, or applicable Laws or otherwise and whether by or through attempted piercing of the corporate, limited liability company or partnership veil, by or through a claim by or on behalf of a party hereto or another Person (including a claim to enforce the Debt Commitment Letter) or otherwise and (ii) no Debt Financing Source shall have any liability (whether in contract, in tort or otherwise) to Seller, the Precoat Business, their respective representatives and their respective Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders for any obligations or liabilities of any party hereto under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby and thereby or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Debt Commitment Letter or the performance thereof or the Debt Financing contemplated thereby, whether based on contract, tort or strict liability by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Laws or otherwise and whether by or through attempted piercing of the corporate, limited liability company or partnership veil, by or through a claim by or on behalf of a party hereto or another Person (including a claim to enforce the Debt Commitment Letter) or otherwise; provided that notwithstanding the foregoing, nothing herein shall affect the rights, claims or remedies of Buyer against the Debt Financing Sources with respect to the Debt Commitment Letter, the Debt Financing or the definitive documentation with respect thereto or any of the transactions contemplated thereby or the performance of services thereunder. Notwithstanding anything to the contrary contained in this Agreement, (i) the Debt Financing Sources are express third intended third-party beneficiaries of, and may enforce, and shall be entitled to rely onthe protections of Section 11.02 (Waiver; Amendment), Section 11.08 (Rights of Third Parties), Section 11.10 (Severability) and this Section 8.14 and 11.16 (i) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” ) and (ii) each of (x) Section 11.02 (Waiver; Amendment), Section 11.08 (Rights of Third Parties), Section 11.10 (Severability) and any other provision or definition in this Agreement to the extent an amendment, modification, waiver or termination of such provision or definition would modify the substance of any of the foregoing provisions or definitionsSection 11.16 (Debt Financing Sources) may not be amended, modified, waived or terminated amended in any way a manner adverse to the Debt Financing Sources and (y) any other provision of this Agreement may not be amended in a way that conflicts with this Section 11.16 in a manner adverse to the Debt Financing Sources, in each case, without the prior written consent of the Debt Financing Sources party to the Debt Commitment Letter; provided that notwithstanding . This Section 11.16 is intended to benefit and may be enforced by Buyer and the foregoing, nothing in this Section 8.14 shall in any way limit or modify the obligations of any Debt Financing Source to Sources and shall be binding on all successors and assigns of Seller, the Parent Precoat Business, their respective representatives and their respective Affiliates, directors, officers, employees, agents, partners, managers, members or any of its Subsidiaries, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case under the Debt Commitment Letter or the definitive agreements executed in connection with the Debt Financingstockholders.
Appears in 1 contract
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject contained in this Agreement, except for claims by Next Alt Sarl, Parent or Merger Sub against the Debt Financing Sources pursuant to the proviso at the end of this paragraph)Financing Agreements, each Party, on behalf of itself, its Subsidiaries, its controlled Affiliates and the Representatives of each of the foregoing, hereby: (a) agrees that any Proceeding involving a Debt Financing Source arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any none of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter 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 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 irrevocably submits itself and its property with respect to any such Proceeding to the exclusive jurisdiction of such court, (b) agrees that any such Proceeding (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 that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the Laws 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), (c) agrees not to bring or support any Proceeding of any kind 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder 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 any such Proceeding in any such court, (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in any Proceeding brought against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) agrees that no Debt Financing Source 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against any Debt Financing Source and agrees that no Debt Financing Source will have any liability to the Partnership, any of its Subsidiaries parties hereto or any of their respective RepresentativesAffiliates nor any of their and their respective Affiliates’ directors, and hereby knowinglyofficers, intentionally and voluntarily waives to the fullest extent permitted by applicable Law employees, agents, partners, managers, controlling persons, representatives, members or stockholders shall have any rights or claims against any Debt Financing Source, in connection with any way relating to this Agreement, the Debt FinancingMerger, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby thereby, or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Financing Agreements or the performance of any services thereunderthereof or the financings contemplated thereby, whether in at law or in equity, in contract, in tort or otherwise and (b) no Debt Financing Source shall have any liability (whether in contract or contract, in tort or otherwise) to any party hereto or any of their respective Affiliates nor any of their respective Affiliates’ directors, officers, employees, agents, partners, managers, controlling persons, representatives, members or stockholders for any obligations or liabilities of any party hereto under this Agreement, the Merger or the Financing or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby and thereby or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Financing Agreements or the performance thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise. In addition, in no event will any Debt Financing Source be liable for consequential, special, exemplary, punitive or indirect damages (hincluding any loss of profits, business or anticipated savings) agrees that or damages of a tortuous nature. If, notwithstanding the foregoing waivers, any claim is brought against the Debt Financing Sources, such claim will be governed by New York law and subject to the jurisdiction limitations and waiver of jury trial provisions set forth in the commitment letter as if fully set forth herein. The Debt Financing Sources are express intended third party beneficiaries of, and may enforce, and shall be entitled to rely on, of this Section 8.14 and (i) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision or definition in this Agreement to the extent an amendment, modification, waiver or termination of such provision or definition would modify the substance of any of the foregoing provisions or definitions) may not be amended, modified, waived or terminated 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; provided that notwithstanding the foregoing, nothing in this Section 8.14 shall in any way limit or modify the obligations of any Debt Financing Source to the Parent or any of its Subsidiaries, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case under the Debt Commitment Letter or the definitive agreements executed in connection with the Debt Financing8.16.
Appears in 1 contract
Debt Financing Sources. Notwithstanding anything in this Agreement herein to the contrary (but subject to contrary, the proviso at Sellers, the end of this paragraph), each PartySeller Representative and the Company, on behalf of itselfthemselves and any of their respective Affiliates, its Subsidiaries, its controlled Affiliates and the Representatives of each of the foregoing, hereby: hereby (a) agrees acknowledge that any Proceeding involving a the Debt Financing Source arising out Sources (in their capacities as such) shall not have any liability (whether in contract, in tort or otherwise) to the Sellers, the Seller Representative or the Company, or any of their respective Affiliates, for any obligations or relating to liabilities of any Party hereto under this Agreement or the Debt Commitment Letter or for any claim based on, in respect of, or by reason of this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to any Debt Financing or the performance of any services thereunder shall be subject to thereof or the exclusive jurisdiction of any federal financings contemplated thereby, whether at law or state court equity, in the Borough of Manhattancontract, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each Party irrevocably submits itself and its property with respect to any such Proceeding to the exclusive jurisdiction of such courtin tort or otherwise, (b) agrees that waives any such Proceeding rights or claims (except to whether in contract, in tort or otherwise) the extent relating to Sellers, the interpretation Seller Representative or the Company or their respective Affiliates may have against any of any provisions in this Agreement (including any provision in any documentation related to the Debt Financing that expressly specifies that Sources in connection with this Agreement, the interpretation of such provisions shall be governed by and construed in accordance with Debt Commitment Letter, the Laws of Debt Financing or 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)Contemplated Transactions, (c) agrees not to bring or support any Proceeding of any kind or description, Action (whether in law or in equitycontract, 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder 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 any such Proceeding in any such court, (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in any Proceeding brought against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) agrees that no Debt Financing Source shall be subject to any special, consequential, punitive or indirect damages or damages of a tortious nature Sources in connection with this Agreement, the Debt FinancingCommitment Letter, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, and (gd) agrees that this Agreement may not be enforced to commence (and if commenced agrees to dismiss or otherwise terminate) any Action against any Debt Financing Source and agrees that no Debt Financing Source will have any liability to the Partnership, any of its Subsidiaries or any of their respective Representatives, and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Debt Financing Source, in connection with this Agreement, the Debt FinancingCommitment Letter, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or thereby; provided that, in no event will the performance Sellers, the Seller Representative and the Company, on behalf of themselves and any of their respective Affiliates have any liability of any services thereunderkind or nature to any lender or related party arising or resulting from any cooperation or assistance provided pursuant to this Agreement, whether in law or in equity, whether in contract or in tort or otherwise, (h) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, this Section 8.14 and (i) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision or definition in this Agreement except to the extent an amendmentthat such liability results from the gross negligence, modificationbad faith or willful misconduct of the Sellers, waiver the Seller Representative or termination of such provision the Company or definition would modify the substance of any of the foregoing provisions their respective directors, managers, officers, employees, agents or definitions) may not be amended, modified, waived or terminated 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; provided that notwithstanding the foregoing, nothing representatives. Nothing in this Section 8.14 10.16 shall in any way limit or modify qualify the rights and obligations of any (i) the Debt Financing Source Sources for the Debt Financing and the other parties to the Parent or any of its Subsidiaries, Debt Financing (or the rights of the Parent definitive documents entered into pursuant thereto) to each other thereunder or any its Subsidiaries against any Debt Financing Sourcein connection therewith, in each case under including pursuant to the Debt Commitment Letter Letter, and (ii) the Sellers, the Seller Representative or the definitive agreements executed in connection with the Debt FinancingCompany against Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Shenandoah Telecommunications Co/Va/)
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject to contrary, the proviso at the end of this paragraph), each PartyCompany, on behalf of itself, and each of its Subsidiaries, its Subsidiaries and controlled Affiliates and the Representatives of each of the foregoing, hereby: (a) agrees that any Proceeding Action, whether in law or in equity, whether in contract or in tort or otherwise, involving a the Debt Financing Source Sources, arising out of or relating to to, this Agreement, the Debt Financing, the Debt Commitment Letter Financing or any of the agreements (including the Debt Commitment Letters) entered into in connection with the Debt Financing or the Debt Commitment Letter 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 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 party hereto irrevocably submits itself and its property with respect to any such Proceeding Action to the exclusive jurisdiction of such court, (b) agrees that any such Proceeding (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 that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the Laws of the State of Delaware)) Action 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 of another jurisdictionState), except as may otherwise be provided in the Debt Commitment Letters or other applicable definitive document relating to the Debt Financing, (c) agrees not to bring or support or permit any Proceeding of its Subsidiaries or controlled Affiliates to bring or support any Action of any kind 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 to, this Agreement, the Debt Financing, the Debt Commitment Letter Letters or any of the agreements entered into in connection with document relating to the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (d) agrees that service of process upon the Company, or their respective Subsidiaries or controlled Affiliates in any such Action or proceeding shall be effective if notice is given in accordance with Section 9.4, (e) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any such Proceeding Action in any such court, (ef) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of law trial by jury in any Proceeding such Action, including any Action brought against any the Debt Financing Source Sources in any way arising out of or relating to to, this Agreement, the Debt Financing, the Debt Commitment Letter Letters or any of the agreements entered into in connection with document relating to the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) agrees that no Debt Financing Source 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against any Debt Financing Source and agrees that no Debt Financing Source will have any liability to (i) neither the Partnership, Company nor any of its Subsidiaries or any of their respective Representativescontrolled Affiliates (in each case, and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law other than Buyer or its Subsidiaries) shall have any rights or claims against any Debt Financing SourceSource in any way arising out of or relating to, in connection with this Agreement, the Debt Financing, the Debt Commitment Letter Letters or any of the agreements entered into transactions contemplated hereby or thereby or the performance of any services thereunder, whether at law or in connection with equity, in contract, in tort or otherwise and (ii) none of the Debt Financing Sources will have any liability (including by way of consequential, punitive or indirect damages of a tortious nature) to the Company or any of its Subsidiaries or controlled Affiliates or representatives (in each case, other than Buyer or its Subsidiaries) relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter 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, (h) agrees not to commence (and if commenced agrees to dismiss or otherwise terminate, and not to assist) any Action against any Debt Financing Source under this Agreement, the Debt Financing, the Debt Commitment Letters or the transactions contemplated hereby or thereby or the performance of any of the services thereunder, (i) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, any of the provisions of this Section 8.14 9.19 and (i) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 such provisions and the definition of “Debt Financing Sources” (and or any other provision or definition in of this Agreement to the extent that an amendment, modification, waiver or termination amendment of such provision or definition would modify the substance of any of the foregoing provisions or definitionsforegoing) may shall not be amended, modified, waived or terminated amended in any way adverse to the Debt Financing Sources without the prior written consent of the Debt Financing Sources party affected thereby) and (j) Buyer may assign its rights under this Agreement to the Debt Commitment Letter; provided that notwithstanding the foregoing, nothing in this Section 8.14 shall in any way limit or modify the obligations of any Debt Financing Source to the Parent or any of its Subsidiaries, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case under the Debt Commitment Letter or the definitive agreements executed in connection with the Debt Financing.as collateral security. (SIGNATURE PAGE FOLLOWS)
Appears in 1 contract
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject to the proviso at the end of this paragraph), each PartyParent, on behalf of itself, its Subsidiaries, Subsidiaries and each of its controlled Affiliates and the Representatives of each of the foregoingAffiliates, hereby: (a) agrees that any Proceeding legal action, whether in Law or in equity, whether in contract or in tort or otherwise, involving a the Debt Financing Source Sources, arising out of or relating to to, this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder Financing, 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 thereof, and each Party party hereto irrevocably submits itself and its property with respect to any such Proceeding legal action to the exclusive jurisdiction of such court, and agrees not to bring or support any such legal action against any Debt Financing Source in any forum other than such courts, (b) agrees that any such Proceeding (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 that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the Laws of the State of Delaware)) legal 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 Laws of another jurisdictionstate), (c) agrees not to bring or support any Proceeding of any kind or description, whether except as otherwise provided 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, the Debt Commitment Letter or any of the agreements entered into in connection with other agreement relating to the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New YorkFinancing, (d) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any such Proceeding in any such court, (ec) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in any Proceeding such legal action brought against any the Debt Financing Source Sources in any way arising out of or relating to to, this Agreement, the Debt Financing, the Debt Commitment Letter or any the Debt Financing, (d) agrees that none of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter Sources shall have any liability to Parent or any of the transactions contemplated hereby its Subsidiaries relating to or thereby or the performance arising out of any services thereunder, (f) agrees that no Debt Financing Source 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against any Debt Financing Source and agrees that no Debt Financing Source will have any liability subject to the Partnership, any last sentence of its Subsidiaries or any of their respective Representativesthis Section 11.14), and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Debt Financing Source, in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt 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, (he) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, this Section 8.14 and (i) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision or definition in this Agreement to the extent an amendment, modification, waiver or termination of such provision or definition would modify the substance of any of the foregoing provisions or definitions) of this Section 11.14 and that this Section 11.14 may not be amended, modified, waived or terminated in any way adverse to the Debt Financing Sources amended without the prior written consent of the Debt Financing Sources party to the Debt Commitment Letter; provided that notwithstanding Lenders. Notwithstanding the foregoing, nothing in this Section 8.14 11.14 shall in any way limit or modify the rights and obligations of any Debt Financing Source to the Parent or any of its SubsidiariesAcquiror under this Agreement, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case ’s obligations to the Acquiror under the Debt Commitment Letter or the definitive agreements executed in connection with the Debt FinancingLetter.
Appears in 1 contract
Samples: Stock Purchase Agreement (Renaissancere Holdings LTD)
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary (but subject to the proviso at the end of this paragraph)contrary, each Party, of the parties on behalf of itself, its Subsidiaries, itself and each of its controlled Affiliates and the Representatives of each of the foregoing, hereby: (a) agrees that any Proceeding legal action (whether in law or in equity, whether in contract or in tort or otherwise), involving a the Debt Financing Source Related Parties, arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of Letter, the definitive agreements entered into in connection with the Debt Financing or (the “Definitive Debt Commitment Letter Financing Agreements”) or any of the transactions contemplated hereby or thereby or the performance of any services thereunder thereunder, shall be subject to the exclusive jurisdiction of any New York State court or federal or state court of the United States of America, in the Borough of Manhattaneach case, sitting in New York, New York, so long as such forum is and remains available, York County and any appellate court thereof (each such court, the “Subject Courts”) and each Party party hereto irrevocably submits itself and its property with respect to any such Proceeding legal action to the exclusive jurisdiction of such court, (b) court and agrees that any such Proceeding dispute shall be governed by, and construed in accordance with, the laws of the State of New York (except to provided, however, that notwithstanding the extent relating to forgoing and the governing law provisions of the Debt Commitment Letter, the Definitive Debt Financing Agreements or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, it is understood and agreed that (A) the interpretation of the definition of Company Material Adverse Effect (and whether or not a Company Material Adverse Effect has occurred), (B) the determination of the accuracy of any provisions “target representation” (as such term or similar term is defined in this Agreement (including any provision in any documentation related to the Debt Financing that expressly specifies that Commitment Letter) and whether as a result of any inaccuracy thereof the interpretation Parent or any of such provisions its Affiliates has the right to terminate its or their obligations hereunder or decline to consummate the Closing as a result thereof and (C) the determination of whether the Closing has been consummated in all material respects in accordance with the terms hereof, shall in each case be governed by and construed in accordance with the Laws of the State of Delaware)) shall be governed by the Laws of the State of New York (terms applicable to governing law as set forth in Section 8.07, without giving effect to any conflicts choice or conflict of law principles provision or rule that would result in cause the application of the laws of another any other jurisdiction), (cb) agrees not to bring or support or permit any Proceeding of its controlled Affiliates to bring or support any legal action (including any 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), against any the Debt Financing Source Related Parties in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of Letter, the agreements entered into in connection with the Definitive Debt Financing or the Debt Commitment Letter Agreements or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New YorkSubject Court, (dc) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of any such Proceeding legal action in any such courtSubject Court, (ed) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in any Proceeding legal action brought against any the Debt Financing Source Related Parties in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter Letter, the Definitive Debt Financing Agreements or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (e) agrees that none of the Debt Financing Source Related Parties will have any liability to any of the Company and its Subsidiaries or their Affiliates relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter, the Definitive Debt Financing Agreements or any of the agreements entered into in connection with the Debt Financing or Financing, the Debt Commitment Letter Letter, the Definitive Debt Financing Agreements or any of the transactions contemplated hereby or thereby or the performance of any services thereunder and that the Company and its Subsidiaries and each of their respective Affiliates and their respective representatives shall not bring or support any legal action (including any 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), against any of the Debt Financing Source Related Parties relating to or in any way arising out of this Agreement, the Debt Financing, the Debt Commitment Letter, the Definitive Debt Financing Agreements or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) waives, and agrees that no not to assert, by way of motion or as a defense, counterclaim or otherwise, in any legal action involving any Debt Financing Source shall be subject to any special, consequential, punitive Related Party or indirect damages or damages of a tortious nature in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or hereby, any claim that it is not personally subject to the performance jurisdiction of the Subject Courts as described herein for any services thereunderreason, and (g) agrees that this Agreement may not be enforced against any Debt Financing Source and agrees that no Debt Financing Source will have any liability to the Partnership, any of its Subsidiaries or any of their respective Representatives, and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Debt Financing Source, in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt 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, (hx) agrees that the Debt Financing Sources Source Related Parties are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, any of the provisions in this Section 8.14 8.17 and (iy) agrees that Sections 7.2, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision or definition in this Agreement to the extent an amendment, modification, waiver or termination any amendments to any provision of such provision or definition would modify the substance of any of the foregoing provisions or definitions) may not be amended, modified, waived or terminated in any way this Section 8.17 are adverse to the Debt Financing Sources Source Related Parties, such provisions shall not be amended without the prior written consent of the Debt Financing Sources party Source Related Parties. Notwithstanding anything contained herein to the Debt Commitment Letter; provided that notwithstanding the foregoingcontrary, nothing in this Section 8.14 8.17 shall in any way limit affect any party’s or modify the obligations any of their respective Affiliates’ rights and remedies under any binding agreement to which a Debt Financing Source to the Parent or any of its Subsidiaries, or the rights of the Parent or any its Subsidiaries against any Debt Financing Source, in each case under the Debt Commitment Letter or the definitive agreements executed in connection with the Debt FinancingRelated Party is a party.
Appears in 1 contract
Samples: Transaction Agreement (Mimecast LTD)
Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary contained herein, the Seller (but subject to the proviso at the end of this paragraph), each Party, on behalf of itselfitself and its affiliates and each officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative thereof), solely in its Subsidiaries, its controlled Affiliates and the Representatives of each of the foregoing, hereby: (a) agrees that any Proceeding involving capacity as a Debt Financing Source arising out of or relating party to this Agreement, the Debt Financing, the Debt Commitment Letter (i) hereby waives any claims or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter 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 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 irrevocably submits itself and its property with respect to any such Proceeding to the exclusive jurisdiction of such court, (b) agrees that any such Proceeding (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 that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the Laws 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), (c) agrees not to bring or support any Proceeding of any kind 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder 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 any such Proceeding in any such court, (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights of trial by jury in any Proceeding brought against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) agrees that no Debt Financing Source 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, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that this Agreement may not be enforced against any Debt Financing Source and agrees that no Debt Financing Source will have any liability to the Partnership, any of its Subsidiaries or any of their respective Representatives, and hereby knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law any rights or claims against any Debt Financing Source, solely in their respective capacities as lenders or arrangers in connection with the financing of the transactions contemplated hereby, relating to or arising out of this Agreement, the Commitment Letter and the transactions contemplated hereby and thereby, whether at law or in equity and whether in tort, contract or otherwise, (ii) hereby agrees not to commence any suit, action or proceeding against any Debt Financing Source, solely in their respective capacities as lenders or arrangers in connection with the financing of the transactions contemplated hereby, in connection with this Agreement, the Debt Financing, the Debt Commitment Letter or any of the agreements entered into in connection with the Debt Financing or the Debt Commitment Letter or any of and the transactions contemplated hereby or thereby or the performance of any services thereunderand thereby, whether in at law or in equity, equity and whether in tort, contract or in tort or otherwise, (h) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, and shall be entitled to rely on, this Section 8.14 and (iiii) hereby agrees that Sections 7.2to cause any suit, 8.4, 8.15 and 8.13, this Section 8.14 and the definition of “Debt Financing Sources” (and any other provision action or definition in this Agreement to the extent an amendment, modification, waiver or termination of such provision or definition would modify the substance of any of the foregoing provisions or definitions) may not be amended, modified, waived or terminated 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; provided that notwithstanding the foregoing, nothing in this Section 8.14 shall in any way limit or modify the obligations of any Debt Financing Source to the Parent or any of its Subsidiaries, or the rights of the Parent or any its Subsidiaries proceeding asserted against any Debt Financing Source, solely in each case under the Debt Commitment Letter their respective capacities as lenders or the definitive agreements executed arrangers in connection with the financing of the transactions contemplated hereby, by or on behalf of the Seller, any of its affiliates or any officer, director, employee, member, manager, partner, controlling person, advisor, attorney, agent and representative thereof in connection with this Agreement, the Commitment Letter and the transactions contemplated hereby and thereby to be dismissed or otherwise terminated. The Debt Financing Sources, solely in their respective capacities as lenders or arrangers in connection with the financing of the transactions contemplated hereby, shall not have any rights or claims against the Seller or any related person thereof, in connection with this Agreement or the Financing., whether at law or equity, in contract, in tort or otherwise. For the avoidance of doubt, this Section shall not amend or impinge the Seller’s rights under any separate agreements between the Seller and any Debt Financing Source. [Signature page follows]
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