Common use of Notwithstanding Section 10 Clause in Contracts

Notwithstanding Section 10. 10(a), (i) with respect to any third party claims against any of the Company Entities involving accidents, events, happenings, injuries, claims, conduct, losses, or circumstances occurring before the Closing, the Company or the Company Entities (including their respective assets or properties) that occurred, arose, or existed prior to the Closing Date and that are covered under any insurance policies held by Seller or its Affiliates which are occurrence-based insurance policies, after the Closing Date, at Buyer’s request, Seller or its Affiliates shall make claims under such insurance policies to the extent and as permitted under such insurance policies; and (ii) with respect to any third party claims against any of the Company Entities involving accidents, events, happenings, injuries, claims, conduct, losses, or circumstances occurring or arising before the Closing, the Company or the Company Entities (including their respective assets or properties) that were made on or prior to the Closing Date under any insurance policies held by Seller or its Affiliates which are claims-made insurance policies, upon Buyer’s reasonable request, Seller or its Affiliates shall direct any carriers under such insurance policies to continue to process any such claims described in clause (ii); provided that, in the case of each of the foregoing clauses, (A) Buyer shall exclusively bear the full amount of any “deductible” or retention associated with such claims, (B) Buyer will have sole right to control and administer all such claims and take any actions as it determines to be appropriate except to the extent any such administration or actions may materially adversely affect the availability of insurance coverage, the amount of any such coverage, the applicability of any coverage, and/or the availability of future coverage or coverage limits with respect to Seller, the Business, the Company, or the Company Entities, in which case, any administration or actions by Buyer shall only be taken with the consent of Seller, (C) Buyer shall, upon request from Seller, promptly reimburse to Seller all reasonable out-of-pocket costs and expenses incurred by Seller and its Affiliates in connection with the foregoing, including the net present value of any premium increases to the extent such increases are directly attributable to claims made pursuant to this Section 10.10(b) and (D) neither Seller nor its Affiliates shall have any obligation to initiate or maintain any litigation with respect to such claim.

Notwithstanding Section 10. 10(a)11(a) or anything else to the contrary in this Agreement, the Company shall be entitled to enforce specifically Parent’s and Merger Sub’s obligations to consummate the Merger including causing Parent and Merger Sub to enforce the terms of the Equity Commitment Letter (or any similar equity financing commitment) and the Equity Financing contemplated therein by a decree of specific performance if, and only if, (i) with respect to any third party claims against any all of the Company Entities involving accidentsconditions set forth in Section 8.1 and Section 8.3 (other than (x) those conditions that by their nature are to be satisfied at the Closing (or are capable of being, eventsand are reasonably expected to be, happenings, injuries, claims, conduct, losses, or circumstances occurring before satisfied at the Closing, the Company ) or the Company Entities (including their respective assets or properties) that occurred, arose, or existed prior to the Closing Date and that are covered under any insurance policies held by Seller or its Affiliates which are occurrence-based insurance policies, after the Closing Date, at Buyer’s request, Seller or its Affiliates shall make claims under such insurance policies to the extent and permissible under applicable Law) waived in accordance with this Agreement or (y) those conditions that have not been satisfied as permitted under such insurance policies; and a result of any material breach of this Agreement by Parent or Merger Sub) have been satisfied at the time when the Closing would have occurred in accordance with Section 2.2, (ii) with respect to any third party claims against any of the Company Entities involving accidentshas irrevocably confirmed in writing that it is ready, events, happenings, injuries, claims, conduct, losses, or circumstances occurring or arising before willing and able to consummate the Closing, the Company or the Company Entities (including their respective assets or properties) that were made on or prior to the Closing Date under any insurance policies held transactions contemplated by Seller or its Affiliates which are claims-made insurance policies, upon Buyer’s reasonable request, Seller or its Affiliates shall direct any carriers under such insurance policies to continue to process any such claims described in clause (ii); provided that, in the case of each of the foregoing clausesthis Agreement, (Aiii) Buyer shall exclusively bear the full amount of the Debt Financing has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, and (iv) the Marketing Period has ended and Parent and Merger Sub have failed to complete the Closing by the date the Closing is required to have occurred pursuant to this Agreement. For the avoidance of doubt, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance and payment of the Parent Termination Fee, provided that the Company may commence Actions for both in the alternative. For the avoidance of doubt, the parties hereto further agree that (1) by seeking the remedies provided for in this Section 10.11, a party shall not in any “deductible” or retention associated with such claims, (B) Buyer will have sole respect waive its right to control seek at any time any other form of relief that may be available to a party under this Agreement in the event that this Agreement has been terminated or in the event that the remedies provided for in this Section 10.11 are not available or otherwise are not granted, and administer all (2) nothing set forth in this Section 10.11 shall require any party hereto to institute any proceeding for (or limit any party’s right to institute any proceeding for) specific performance under this Section 10.11 prior or as a condition to exercising any termination right under Article IX (and pursuing the Parent Termination Fee after such claims and take any actions as it determines to be appropriate except termination to the extent any such administration or actions may materially adversely affect permitted in accordance with this Agreement), nor shall the availability of insurance coverage, the amount commencement of any such coverage, the applicability of any coverage, and/or the availability of future coverage or coverage limits with respect to Seller, the Business, the Company, or the Company Entities, in which case, any administration or actions by Buyer shall only be taken with the consent of Seller, (C) Buyer shall, upon request from Seller, promptly reimburse to Seller all reasonable out-of-pocket costs and expenses incurred by Seller and its Affiliates in connection with the foregoing, including the net present value of any premium increases to the extent such increases are directly attributable to claims made legal proceeding pursuant to this Section 10.10(b) and (D) neither Seller nor its Affiliates shall have 10.11 or anything set forth in this Section 10.11 restrict or limit any obligation party’s right to initiate or maintain any litigation terminate this Agreement in accordance with respect to such claimthe terms of Article IX.