Common use of Notwithstanding Section 10 Clause in Contracts

Notwithstanding Section 10. 11(a) or anything else to the contrary in this Agreement, the Company shall not be entitled to enforce specifically Parent’s, Infiniti’s, Holdco’s and Merger Sub’s obligations to consummate the Merger unless (i) all of the conditions set forth in Sections 8.01 and 8.02 (other than those conditions that by their nature are to be satisfied at the Closing (provided that such conditions would have been satisfied or waived assuming the Closing were to occur)) shall have been satisfied (or are capable of being satisfied at the Closing) or (to the extent permissible under applicable Law) waived; (ii) the Company has irrevocably confirmed in writing to Parent that (A) all of the conditions to the Company’s obligations have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing; provided that such conditions would have been satisfied or waived assuming the Closing were to occur), and (B) if specific performance is granted and the Financing is funded, then it is ready, willing and able to take the actions within its control to cause the Closing to occur; (iii) the Debt Financing has been funded or will be funded at the Closing assuming the Equity Financing is funded; and (iv) Parent, Infiniti, Holdco and Merger Sub have failed to complete the Closing by the date the Closing is required to have occurred pursuant to this Agreement .

Notwithstanding Section 10. 11(a02(a) or anything else to the contrary contained in this Agreement, the Company shall not be entitled to enforce specifically an injunction or specific performance, prior to the termination of this Agreement in accordance with Article IX, of Parent’s's obligation to cause the Equity Financing to be funded and thereafter to cause the Closing to occur if, Infiniti’s, Holdco’s and Merger Sub’s obligations to consummate the Merger unless only if: (i) all of the conditions set forth in Sections Section 8.01 and Section 8.02 have been satisfied or waived in accordance with this Agreement (other than those conditions that by their nature are to be satisfied at the Closing (provided that such conditions would have been satisfied or waived assuming the Closing were to occur)) shall have been satisfied (or are capable of being satisfied at the Closing) or (to the extent permissible under applicable Law) waived; (ii) the Company has irrevocably confirmed in writing to Parent that (A) all of the conditions to the Company’s obligations have been satisfied or waived (other than those conditions that by their nature terms are to be satisfied at the Closing; , but provided that such conditions would have been are capable of being satisfied or waived assuming if the Closing were to occuroccur on such date and the date on which the Closing would occur if the remedy herein were granted), (ii) the Preferred Equity Financing and the Debt Financing (including any alternative financing that has been obtained in accordance with Section 7.13) has been funded in accordance with the terms thereof, or are capable of being funded in accordance with the terms thereof at the Closing upon delivery of a drawdown notice by Parent or notice from Parent that the Equity Financing will be funded at the Closing, (iii) Parent and Merger Sub are required to consummate the Transactions in accordance with Section 2.01 and (Biv) if specific performance is granted and the Financing is funded, then Company has irrevocably confirmed to Parent in writing that it is ready, willing and able to take the actions within its control to cause consummate the Closing to occur; (iii) the Debt Financing has been funded or will be funded at the Closing assuming the Equity Financing and if such specific performance is funded; and (iv) Parent, Infiniti, Holdco and Merger Sub have failed to complete the Closing by the date the Closing is required to have occurred granted pursuant to this Agreement Section 10.02 and if the Equity Financing, Preferred Equity Financing and Debt Financing are funded, then the Closing would occur.