The Hell or High Water Clause: What It Means and How to Negotiate It (2026)

What is a hell or high water clause? A hell or high water clause makes one party's obligation absolute: it must do what the clause requires come hell or high water, with almost no excuses. The phrase appears in two common settings. - Mergers and acquisitions. The buyer promises to take any and all actions needed to win regulatory, usually antitrust, clearance, including selling off assets, accepting conditions and even litigating against the regulator. The clause shifts regulatory risk onto the buyer and gives the seller deal certainty.

• Equipment leases and finance. The lessee must keep paying rent no matter what happens to the equipment, even if it breaks or cannot be used. Payment is unconditional and not subject to set-off. Both uses share one idea: the obliged party cannot walk away just because performance became hard or expensive. This page focuses mainly on the M&A antitrust version, which is where most searches land, and notes the lease version. This article is general guidance, not legal advice. These clauses engage antitrust, contract and, for leases, consumer and finance law, which vary by jurisdiction, so have a qualified professional review any clause before you rely on it. ## Sample hell or high water clause (M&A antitrust) ``` REGULATORY EFFORTS (HELL OR HIGH WATER) 1. The Buyer will take any and all actions necessary to obtain all Regulatory Approvals and to avoid or remove any impediment to Closing under any antitrust or competition law, so that Closing occurs no later than the Outside Date. This includes: (a) responding fully to any regulator request or second request; (b) proposing, agreeing to and effecting the sale, divestiture or licensing of any assets or businesses; (c) accepting any behavioural or structural condition imposed by a regulator; and (d) defending any action challenging the transaction, including through litigation. 2. The Buyer will not be required to take any action with respect to [assets generating more than [CURRENCY/AMOUNT] in revenue] / [the following excluded businesses: ...]. <-- optional cap/carve-out 3. The Seller will cooperate and provide information reasonably needed for the filings, but the obligation to obtain clearance rests with the Buyer.

- No cap or carve-out, so the buyer is exposed to open-ended divestitures.
- Forgetting that a breach may not be remedied if a court finds the breach was not the real cause of the deal failing, so pair the clause with a reverse termination fee.
- In leases, an unconditional-payment clause with no route for the lessee to pursue a defective supplier. ## Does it vary by jurisdiction? Yes. The clause is a contract term, not a statute, so its force depends on the governing law and on local antitrust and contract rules. - **United States.** Hell or high water clauses are well understood in large M&A, though recent Delaware decisions show that breaching the obligation does not guarantee the seller a remedy if the breach was not the cause of the failure.
- **India, UK, EU, Singapore, Australia.** Merger-control regimes differ, so the practical meaning of "any and all actions to obtain clearance" differs too. In lease and finance contexts, unconditional-payment clauses are read against local penalty, unfair-terms and consumer-protection rules, which can limit them. Because both the antitrust regime and the enforceability of unconditional obligations differ, say "varies by jurisdiction" and check local law. ## One workspace for the whole contract, not just the clause Getting the wording right is one task. The harder work is everything around it: making sure the efforts obligation lines up with the closing conditions, the outside date and any reverse termination fee, and keeping the divestiture caps and carve-outs consistent across a long agreement. Drafting, reviewing, tracking and governing a deal like this can sit in one AI contract workspace tuned to how your company handles M&A, so the regulatory-efforts clause, the outside date and the remedies stay joined up instead of scattered across files. [Adira](https://adiralaw.com) takes that single-workspace approach. The sample above is enough to frame a fair clause on its own.