Common use of Notwithstanding Section 9 Clause in Contracts

Notwithstanding Section 9. 10(a) or anything to the contrary in this Agreement, it is acknowledged and agreed that the Company will only be entitled to an injunction, specific performance or other equitable remedy to cause the Parent Parties to consummate the Closing in the event that (and only for so long as) (A) all of the conditions set forth in Section 7.1 and Section 7.3 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing); (B) all of the conditions to the consummation of the Debt Financing provided by the Debt Commitment Letter have been satisfied (other than the receipt of the Equity Financing and the satisfaction of those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing) and the full amount of the Debt Financing (or any Alternative Financing) has been funded or will be funded at the Closing in accordance with the terms of the Debt Commitment Letter if the Equity Financing were funded at the Closing, (C) the Company has irrevocably confirmed to the Parent Parties in writing that it is ready, willing and able to consummate the Closing within five (5) Business Days and that all of the closing conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived and (D) the Parent Parties fail to consummate the Merger within such five (5) Business Day period after delivery by the Company to the Parent Parties of the notice described in preceding clause (C).

Notwithstanding Section 9. 10(a9(a) or anything else to the contrary in this Agreement, it is acknowledged the parties hereby acknowledge and agreed agree that the Company will only shall be entitled to an injunction, specific performance or other equitable remedy to cause Parent and/or Acquisition Sub to cause the Equity Financing to be funded and draw down the full proceeds of the Equity Financing pursuant to the terms and conditions of the Equity Commitment Letters and/or to cause Parent Parties and/or Acquisition Sub to consummate the transactions contemplated hereby and to effect the Closing in the event that (accordance with Section 2.2, in each case if, and only for so long as) (A) if, all of the following conditions set forth have been satisfied: (i) all conditions in Section 7.1 and Section 7.3 7.2 (but subject to the fulfillment or waiver of those conditions) have been satisfied satisfied, and remain satisfied, at the time when the Closing would have occurred (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is capable of being satisfied at the Closing); (B) all of the conditions to the consummation of the Debt Financing provided by the Debt Commitment Letter have been satisfied (other than the receipt of the Equity Financing and the satisfaction of those conditions that by their terms are to shall be satisfied at the Closing, each of which is capable of being satisfied at the Closing) but for the failure of the Financing to be funded, (ii) Parent and Acquisition Sub fail to complete the full amount of Closing by the date the Closing is required to have occurred pursuant to Section 2.2, (iii) the Debt Financing provided for by the Debt Commitment Letter (or any or, if Alternative FinancingFinancing is being used in accordance with Section 6.11(c), pursuant to the commitments with respect thereto) has been funded or will be funded at the Closing in accordance with is required under the terms of the Debt Commitment Letter to be funded at the Closing if the Equity Financing were is funded at the Closing, Closing and (Civ) the Company has irrevocably confirmed to the Parent Parties in writing to Parent that it if specific performance is readygranted and the Equity Financing and Debt Financing are funded, willing and able to consummate then the Closing within five (5) Business Days and that all of the closing conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived and (D) the Parent Parties fail to consummate the Merger within such five (5) Business Day period after delivery by the Company to the Parent Parties of the notice described in preceding clause (C)would occur.

Notwithstanding Section 9. 10(a) or anything to 6(a), the contrary in this Agreement, it is acknowledged Parties hereby further acknowledge and agreed agree that the Company will only shall be entitled to an injunction, specific performance or other equitable remedy of Parent's obligation to cause the Equity Financing to be funded and to cause Parent Parties and Merger Sub to consummate the Closing in the event that (accordance with Section 1.2 if, and only for so long as) if, (A) all of the conditions set forth in Section 7.1 and Section 7.3 have been satisfied 7.2 (other than those conditions that by their terms nature are to be satisfied at or immediately prior to the Closing, each of but which is conditions at such time are capable of being satisfied if the Closing were to occur) have been satisfied or have been waived by Parent at the Closing); time when the Closing would be required to occur pursuant to Section 1.2, (B) all of Parent and Merger Sub fail to consummate the conditions Closing on the date when the Closing should have occurred pursuant to Section 1.2, (C) the consummation of Marketing Period has ended and the Debt Financing provided by the Debt Commitment Letter have been satisfied (other than the receipt of the Equity Financing and the satisfaction of those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing) and the full amount of the Debt Preferred Financing (or any and/or, if applicable, the Alternative Financing) has been funded or will be funded at the Closing in accordance with the terms of thereof at the Debt Commitment Letter Closing if the Equity Financing were is funded at the Closing, Closing and (CD) the Company has irrevocably confirmed in a written notice to Parent that, if specific performance is granted and the Equity Financing, Preferred Financing and Debt Financing are funded, the Company is prepared to consummate the Closing, and Parent and Merger Sub fail to complete the Closing within three (3) business days after the delivery of the Company's irrevocable written confirmation. For the avoidance of doubt and notwithstanding anything in this Agreement to the Parent Parties in writing that it is readycontrary, willing the Company may concurrently pursue both (A) a grant of specific performance of Parent's obligation to cause the Equity Financing to be funded and able to consummate the Closing within five to the extent permitted by this Section 9.6(b) and (5B) Business Days and that all the payment of the closing conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived and (D) Parent Termination Fee, the Parent Parties fail Reimbursement Obligations and the Enforcement Costs if any are due pursuant to Section 8.5(e)(i); provided that under no circumstances shall the Company be entitled to receive both (A) a grant of specific performance of Parent's obligation to cause the Equity Financing to be funded and to consummate the Merger within such five Closing and (5B) Business Day period after delivery by the Company to payment of the Parent Parties of Termination Fee, the notice described in preceding clause (C)Parent Reimbursement Obligations and the Enforcement Costs if any due pursuant to Section 8.5(e)(i) or monetary damages.