Notwithstanding Section 5 Clause Samples
The "Notwithstanding Section 5" clause serves to establish that the provisions it introduces will take precedence over any conflicting terms found in Section 5 of the agreement. In practice, this means that if there is any inconsistency between what is stated in Section 5 and the terms of the clause containing this phrase, the latter will override the former. This approach is commonly used to carve out exceptions or clarify that certain obligations or rights apply even if Section 5 suggests otherwise, thereby ensuring that specific intentions of the parties are honored without ambiguity.
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Notwithstanding Section 5. 2.1(a) or anything to the contrary in this Agreement or pursuant to applicable Laws (including, without limitation, New York Uniform Commercial Code § 2-602(1) or any state law equivalent to Section 2-602(1) of the Uniform Commercial Code), Buyer or its representatives may, by notice to Seller pursuant to Section 5.2.1(c), reject any non-conforming Product or shipments of Products up to the earlier of: (a) fifteen (15) days following the discovery of any Product that does not conform with the applicable Specification, the applicable Purchase Order, the applicable Warranty, or any other requirement set forth in this Agreement; (b) commencement of installation of the Product; or (c) sixty (60) days following the Delivery Date. Without limiting the generality of the foregoing, Buyer (or the Carrier on Buyer’s behalf) may reject any Product if, after visual inspection of the Product or its packaging at the time that such Product is received by the Carrier, it appears that any portion thereof or the containers in which such items were shipped have been damaged. If Buyer rejects any Product, Buyer shall have the right to take the following actions, at Buyer’s option: (i) retain the non-conforming Products in whole or in part with an appropriate adjustment in the price as mutually agreed upon by the Parties, in which case, Buyer shall, by its retention of the defective Products, waive all claims or liabilities related to, or resulting from, the failure of the Products to conform to the applicable Warranty, or (ii) require Seller to replace the rejected Product at Seller’s sole cost and expense (including shipping and transportation costs to the nominated Destination Point) and promptly deliver the replacement Product to Buyer within thirty (30) days after receiving Buyer’s written notice of rejection.
Notwithstanding Section 5. 03(a), from and after the Effective Time, with respect to any Liability incurred by Baxalta or any of the Baxalta Subsidiaries prior to the Effective Time (or, with respect to any Deferred Baxalta Local Business, prior to the Local Closing Date), to the extent reasonably possible, Baxter will, or will cause the applicable insurance companies or a Baxter Subsidiary that is insured thereunder to (i) continue to provide Baxalta and the Baxalta Subsidiaries with access to and coverage under the applicable insurance policies, and (ii) reasonably cooperate with Baxalta and take commercially reasonable actions as may be necessary or advisable to assist Baxalta in submitting such claims under the applicable insurance policies; provided, that Baxalta shall be responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge or fee legally due and owing relating to such claims and neither Baxter nor the insurance company or any Baxter Subsidiary shall be required to maintain such insurance policies. For the avoidance of doubt, if an occurrence date is after the Effective Time (or, with respect to any Deferred Baxalta Local Business, after the Local Closing Date), then no payment for any damages, costs of defense, or other sums with respect to such claim shall be available to Baxalta under such insurance policies. Neither Baxalta nor any Baxalta Subsidiary, in connection with making a claim under any insurance policy of Baxter or any Baxter Subsidiary pursuant to this Section 5.03(b), shall take any action that would be reasonably likely to: (A) have an adverse impact on the then-current relationship between Baxter or any Baxter Subsidiary, on the one hand, and the applicable insurance company, on the other hand; (B) result in the applicable insurance company terminating or reducing coverage, or increasing the amount of any premium owed by Baxter or any Baxter Subsidiary under the applicable insurance policy; or (C) otherwise compromise, jeopardize or interfere with the rights of Baxter or any Baxter Subsidiary under the applicable insurance policy. At all times, the Parties shall, and shall cause their respective Subsidiaries to, cooperate with reasonable requests for information by the other Party or the insurance companies regarding any such insurance policy claim.
Notwithstanding Section 5. 3(a), the Borrower shall not be required to indemnify or pay any additional amounts in respect of withholding tax applicable to any amount payable under this Agreement pursuant to Section 5.3(a) above to any Non-U.S. Lender, except if any such Revolving Credit Loans were assigned, participated or transferred to such Non-U.S. Lender at the request or with the consent of the Borrower or were assigned, participated or transferred to such Non-U.S. Lender following the occurrence of and during the continuance of an Event of Default pursuant to Section 10.1 or 10.
Notwithstanding Section 5. 1.1.1, Developer shall be responsible for obtaining amendments or modifications to any Authority Obtained Governmental Approval necessary to reflect Developer’s Final Design and/or means and methods should the Final Design and/or means and methods deviate from the basis upon which the Authority Obtained Governmental Approval was initially granted by the Governmental Entity. In the event that any modifications are not permitted by the Governmental Entity, Developer shall be responsible, at its own risk of delay and cost, for revising its Final Design and/or means and methods as necessary to satisfy the requirements and conditions of the relevant Governmental Entity.
Notwithstanding Section 5. 1.3.1 above, (i) if Department determines that the NTP will not be issued on or before the date that is six (6) months following the NTP Delay Date (such date, the “Extended NTP Delay Date”), provided that Department may not make such determination more than ninety (90) days in advance of the Extended NTP Delay Date, or (ii) if the NTP is not issued by Department on or before the Extended NTP Delay Date, the Contract Price, the Substantial Completion Deadline, and the Final Completion Deadline shall be subject to good faith renegotiation, in accordance with the following protocol:
(a) Department shall direct Design-Builder in writing to provide a proposal with respect to its contemplated adjustments to the Contract Price and Contract Times, with Department identifying those assumptions upon which the proposal is to be based;
(b) Design-Builder shall promptly furnish its proposal after receipt of Department’s directive; and
(c) if the parties do not reach agreement on a revised Contract Price, Substantial Completion Deadline and Final Completion Deadline within thirty (30) days of the date Department receives Design-Builder’s proposal (or such longer period as the parties may mutually agree to in writing), either party may deliver notice to the other party that it wishes to terminate this Agreement (an “Extended NTP Delay Termination Notice”). An Extended NTP Delay Termination Notice must (i) provide a proposed date for termination and (ii) be delivered to the other party at least fourteen (14) days before such proposed date of termination.
Notwithstanding Section 5. 1(a), from and after the Effective Time, with respect to any Liability incurred by any member of the Aptevo Group prior to the Effective Time, to the extent reasonably possible, Emergent will, or will cause the applicable insurance companies or the member of the Emergent Group that is insured thereunder to (i) continue to provide the members of the Aptevo Group with access to and coverage under the applicable insurance policies, and (ii) reasonably cooperate with Aptevo and take commercially reasonable actions as may be necessary or advisable to assist Aptevo in submitting such claims under the applicable insurance policies; provided, that Aptevo shall be responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge or fee legally due and owing relating to such claims and neither Emergent nor the insurance company or any other member of the Emergent Group shall be required to maintain such insurance policies. For the avoidance of doubt, if an occurrence date is after the Effective Time, then no payment for any damages, costs of defense, or other sums with respect to such claim shall be available to Aptevo under such insurance policies. No member of the Aptevo Group, in connection with making a claim under any insurance policy of any member of the Emergent Group pursuant to this Section 5.1(b), shall take any action that would be reasonably likely to: (A) have an adverse impact on the then-current relationship between any member of the Emergent Group, on the one hand, and the applicable insurance company, on the other hand; (B) result in the applicable insurance company terminating or reducing coverage, or increasing the amount of any premium owed by any member of the Emergent Group under the applicable insurance policy; or (C) otherwise compromise, jeopardize or interfere with the rights of any member of the Emergent Group under the applicable insurance policy. At all times, the Parties shall, and shall cause the other members of its Group to, cooperate with reasonable requests for information by the other Party or the insurance companies regarding any such insurance policy claim.
Notwithstanding Section 5. 2.1, the license granted hereunder to CGI shall not terminate by reason of a delay in meeting the [***] milestone set forth in Section 5.1.1, to the extent that prudent business judgment, based on circumstances outside of CGI's reasonable control, reasonably justifies such delay.
Notwithstanding Section 5. 02(a), during the Interim Period, except as otherwise expressly set forth in Section 5.02(b) of the Alignvest Disclosure Schedule, as required by applicable Law or as consented to in writing in advance by Sagicor (such consent not to be unreasonably withheld, conditioned or delayed, and in the event Sagicor does not acknowledge receiving a request for consent within seven (7) Business Days after such consent is requested by Alignvest, Sagicor shall be deemed to have consented to such request) or as otherwise contemplated, permitted or required by this Agreement, the Scheme of Arrangement, the Alignvest Arrangement or the Alignvest Continuance, Alignvest shall not, directly or indirectly, do any of the following (it being understood that no action with respect to subject matters specifically addressed by this Section 5.02(b) shall be deemed a breach of Section 5.02(a)):
(i) amend any Constitutive Documents of Alignvest in any respect that would be material to Sagicor (other than as contemplated under this Agreement or in connection with the Sagicor Arrangement or the Plan of Arrangement);
(ii) (A) directly or indirectly issue, sell or grant any Alignvest Shares or any other Equity Interests of Alignvest, other than the issuance of any shares or other convertible securities in an amount up to the Redemption Replacement Amount to replace some or all of the Alignvest Class A Shares as to which a redemption right has been exercised or in connection with the Forward Purchase Agreements entered into on or prior to the Agreement Date, in accordance with the rules of the TSX applicable to SPACs and on terms acceptable to Sagicor, acting reasonably, (B) redeem, purchase or otherwise reacquire any issued and outstanding Alignvest Shares, except in connection with the redemption by Alignvest Shareholders of Class A Shares in accordance with the share terms and as described in the Final IPO Prospectus, or (C) split, combine or reclassify any Alignvest Shares, except as described in the Final IPO Prospectus;
(iii) make, by contribution to capital, property transfers, purchase of securities or otherwise, any material investment (other than investments in marketable securities and cash equivalents) in any Person;
(iv) lend money to any Person;
(v) except for indebtedness for borrowed money not to exceed a maximum aggregate principal amount equal to the lesser of (i) 10% of the gross proceeds raised from the issuance of Class A Restricted Voting Units by Alignvest in conne...
Notwithstanding Section 5. 6.1, if Eiger or any of its Affiliates, either through its own development efforts or by acquisition, or obtains ownership of or a license to, or is acquired by or otherwise merges with an entity (or an Affiliate of such entity) that owns or has a license to, a Competitive Compound, in all such cases that would result in a violation of Section 5.6.1 (any such event, a “Triggering Event”), then Eiger shall promptly notify BMS in writing and elect (as applicable) one of the following actions within [ * ] after such Triggering Event:
(a) divest itself of such Competitive Compound and notify BMS in writing of such divestiture, which divestiture may occur by an outright sale to a Third Party of all of Eiger’s and its Affiliate’s rights to such Competitive Compound or by an outlicense arrangement under which Eiger has no continuing active involvement in the development or commercialization of such Competitive Compound (for clarity, efforts in connection with (i) the receipt and audit of payments in respect of the Competitive Compound, (ii) the maintenance, defense and enforcement of any applicable licensed patents, and (iii) the receipt of information to ensure compliance with the applicable agreement (including efforts to enforce or terminate same, or seek damages, for breach) shall not constitute continuing active involvement). Eiger shall use Commercially Reasonable Efforts to complete such divestiture within [ * ] after the applicable Triggering Event. If Eiger is unable to complete the divesture within such [ * ] period, Eiger may continue to divest such Competitive Compound thereafter, provided, that Eiger or its Affiliate shall cease the Development and Commercialization of the Competitive Compound prior to the end of such [ * ] period and shall not restart the Development and Commercialization of the Competitive Compound thereafter (and if such Development or Commercialization is restarted, then BMS may immediately terminate this Agreement upon written notice to Eiger). For clarity, Eiger’s (or its Affiliates’) Development and Commercialization of the Competitive Compound in the ordinary course during such [ * ] period shall not be deemed a breach of Eiger’s exclusivity obligations set forth herein; or
(b) Eiger shall notify BMS in writing whether Eiger desires to negotiate terms under which the Competitive Compound would be included as a Product within this Agreement. If the Parties can agree and execute a binding agreement, within [ * ] after notice fr...
Notwithstanding Section 5. 2(a) or any other provision of this Agreement, at any time prior to obtaining the Stockholder Approval: