Common use of Specific Performance (Closing) Clause in Contracts

Specific Performance (Closing). Prior to a valid termination of this Agreement pursuant to Article VII hereof, the Company shall be entitled to seek and obtain an injunction, specific performance and other equitable remedies to enforce Parent’s and Merger Sub’s obligations to cause the Equity Financing to be funded and to consummate the Merger only in the event that each of the following conditions has been satisfied: (i) all of the conditions set forth in Section 6.1 and Section 6.2 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing), and Parent and Merger Sub fail to complete the Closing by the date the Closing is required to have occurred pursuant to Section 1.2, (ii) the Debt Financing (or, if alternative financing is being used in accordance with Section 5.12, such alternative financing) has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, and (iii) the Company has irrevocably confirmed in a written notice delivered to Parent and Parent’s sources of Debt Financing that if specific performance is granted and the Equity Financing and Debt Financing are funded, then the Closing will occur. For the avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically the Parent’s right to cause the Equity Financing to be funded or to complete the Merger if the Debt Financing has not been funded (or will not be funded at the Closing if the Equity Financing is funded at the Closing). In no event shall the Company be entitled to seek the remedy of specific performance of this Agreement other than solely under the specific circumstances and as specifically set forth in this Section 8.8(b). For the avoidance of doubt, while the Company may pursue both a grant of specific performance and the payment of the Parent Termination Fee, under no circumstances shall the Company be entitled to receive both a grant of specific performance and payment of the Parent Termination Fee.

Specific Performance (Closing). Prior to a valid termination of this Agreement pursuant to Article VII hereofSection 7.1, the Company shall be entitled to seek and obtain an injunction, specific performance and other equitable remedies to enforce Parent’s and Merger SubSubsidiary’s obligations to cause the Equity Financing to be funded (and to exercise its third party beneficiary rights under the Equity Commitment Letters) and to consummate the Merger only in the event that each of the following conditions has been satisfied: (iA) all of the conditions set forth in Section 6.1 and Section 6.2 have been satisfied (other than those conditions that by their nature terms are to be satisfied by actions taken at the Closing), each of which shall be capable of being satisfied at the Closing) have been satisfied at the time the Closing would have occurred but for the failure of the Equity Financing to be funded, and Parent and Merger Sub fail to complete the Closing by the date the Closing is required to have occurred pursuant to Section 1.2remain satisfied, (iiB) the Debt Financing (or, if alternative financing Alternative Debt Financing is being used in accordance with Section 5.125.9(c), such alternative financingpursuant to the commitments with respect thereto) has been funded in accordance with the terms thereof or will be funded in accordance with the terms thereof at the Closing if the Equity Financing is funded at the Closing, Closing and (iiiC) the Company has irrevocably confirmed in a written notice delivered writing to Parent and Parent’s sources of Debt Financing that if specific performance is granted and the Equity Financing and Debt Financing are funded, then it will take such actions that are required of it by this Agreement to cause the Closing will to occur. For the avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically the Parent’s right to cause the Equity Financing to be funded or to complete the Merger if the Debt Financing has not been funded (or will not be funded at the Closing if the Equity Financing is funded at the Closing). In no event shall the Company be entitled to seek the remedy of specific performance of this Agreement other than solely under the specific circumstances and as specifically set forth in this Section 8.8(b8.12(b)(ii). For the avoidance of doubt, while in no event shall the Company may pursue both a grant be entitled to seek any remedy of specific performance or other equitable remedies against any Debt Financing Source. The election to pursue an injunction, specific performance or other equitable relief, in each case in accordance with the terms of this Agreement, shall not restrict, impair or otherwise limit the Company from, in the alternative, seeking to terminate the Agreement and collect the Parent Termination Fee pursuant to Section 7.4(b); provided, however, that in no event shall the Company be permitted to pursue an injunction, specific performance or other equitable relief or any other remedies under this Agreement or available at Law or equity following the payment of the Parent Termination Fee, under no circumstances shall the Company be entitled to receive both a grant of specific performance and payment of the Parent Termination Fee.

Specific Performance (Closing). Prior The parties hereto hereby agree that irreparable injury would occur in the event that any provision of this Agreement were not performed in accordance with the specific terms hereof or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages (notwithstanding the termination fees contemplated hereby). Accordingly, the parties hereto acknowledge and hereby agree that, prior to a valid termination of this Agreement pursuant to Article VII hereofSection 8.1, the Company shall be entitled to seek and obtain an injunction, specific performance and or other equitable remedies to enforce remedy in connection with enforcing Parent’s and Merger Sub’s obligations to cause the Equity Financing to be funded and obligation to consummate the Merger only in the event that each of the following conditions has been satisfied: (iA) all of the conditions set forth in Section 6.1 2.2(a) and Section 6.2 2.2(b) have been satisfied (other than those conditions that by their nature terms are to be satisfied by actions taken at the Closing), and each of which is capable of being satisfied at the Closing) at the time the Closing would have occurred but for the failure of the Parent to fund the portion of the aggregate Merger Consideration not contemplated to be funded from the Financing, (B) the Financing has been funded in accordance with the terms thereof or the Financing Sources have confirmed in writing that it will be funded in accordance with the terms thereof at the Closing, (C) Parent and Merger Sub fail shall have failed to complete consummate the Merger by the time the Closing was required by the date the Closing is required Section 2.1 to have occurred pursuant to Section 1.2, (ii) the Debt Financing (or, if alternative financing is being used in accordance with Section 5.12, such alternative financing) has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, occur and (iiiD) the Company has irrevocably confirmed in a written notice delivered writing to Parent and Parent’s sources of Debt Financing that if specific performance is granted and the Equity Financing and Debt Financing are is funded, then it will take such actions that are required of it by this Agreement to cause the Closing to occur. In no event shall the Company be entitled to enforce specifically Parent’s obligation to cause the Merger to be consummated if the Financing has not been funded (or Parent has confirmed in writing to the Company that it will occurnot be funded). In no event shall the Company be entitled to specifically enforce the terms of this Agreement other than solely under the specific circumstances and as specifically set forth in Section 9.11(c)(i) and this Section 9.11(c)(ii). For the avoidance of doubt, in no event shall the Company be entitled to enforce a remedy of specific performance or seek other equitable remedies against any Financing Source. The election to enforce specifically pursue an injunction, specific performance or other equitable relief shall not restrict, impair or otherwise limit the Parent’s right Company from, in the alternative, seeking to cause terminate the Equity Financing Agreement and collect the Parent Termination Fee pursuant to be funded or to complete the Merger if the Debt Financing has not been funded (or will not be funded at the Closing if the Equity Financing is funded at the ClosingSection 8.4(b). In ; provided that in no event shall the Company be entitled (i) permitted to seek the remedy of pursue an injunction, specific performance of or other equitable relief or any other remedy under this Agreement other than solely under the specific circumstances and as specifically set forth in this Section 8.8(b). For the avoidance of doubt, while the Company may pursue both a grant of specific performance and or available at law or equity following the payment of the Parent Termination Fee, under no circumstances shall the Company be Fee or (ii) permitted or entitled to receive both a grant of specific performance of the obligation to close contemplated by this Section 9.11(c) and payment any money damages (including all or any portion of the Parent Termination Fee).

Specific Performance (Closing). Prior to a valid termination of this Agreement pursuant to Article VII hereof, the Company shall be entitled to seek and obtain an injunction, specific performance and other equitable remedies relief to enforce Parent’s and Merger Sub’s obligations cause, or to cause require Parent to cause, the Equity Financing Commitment Letter to be funded and to consummate the Merger Merger, only in the event that each of the following conditions has been satisfied: (iA) all of the conditions set forth in Section 6.1 and Section 6.2 have been satisfied or waived (other than those conditions that (x) by their nature are to be satisfied by actions taken at the Closing and that would be capable of being satisfied if there were a Closing), or (y) have not been satisfied as a result of Parent or Merger Sub’s breach or failure to perform any of their respective covenants in this Agreement) and Parent and Merger Sub fail to complete the Closing by the date the Closing is required to have occurred pursuant to Section 1.2, (iiB) the Debt Financing (or, if alternative financing an Alternative Financing Commitment is being used in accordance with Section 5.12this Agreement, such alternative financing) has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, and (iiiC) the Company has irrevocably confirmed in a written notice delivered to Parent and Parent’s sources of Debt Financing the Lenders that if specific performance is granted and the Equity Financing and Debt Financing are funded, then the Closing will occur. For the avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically the Parent’s right to cause the Equity Financing to be funded or to complete the Merger if the Debt Financing has not been funded (or will not be funded at the Closing if the Equity Financing is funded at the Closing). In no event shall the Company be entitled to seek the remedy of specific performance of this Agreement other than solely under the specific circumstances and as specifically set forth in this Section 8.8(b). For the avoidance of doubt, while the Company may pursue both a grant of specific performance and the payment of the Parent Termination Fee, under no circumstances shall the Company be entitled to receive both a grant of specific performance and payment of the Parent Termination Fee.

Specific Performance (Closing). Prior The parties hereto hereby agree that irreparable injury would occur in the event that any provision of this Agreement were not performed in accordance with the specific terms hereof or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages (notwithstanding the termination fees contemplated hereby). Accordingly, the parties hereto acknowledge and hereby agree that, prior to a valid termination of this Agreement pursuant to Article VII hereofSection 8.1, the Company shall be entitled to seek and obtain an injunction, specific performance and or other equitable remedies to enforce Parentremedy in connection with enforcing Newco’s and Merger Sub’s obligations obligation to cause the Equity Financing to be funded (and to exercise its third-party beneficiary rights under the Equity Commitment Letter) and to consummate the Merger only in the event that each of the following conditions has been satisfied: (iA) all of the conditions set forth in Section 6.1 2.2(a) and Section 6.2 2.2(b) have been satisfied (other than those conditions that by their nature terms are to be satisfied by actions taken at the Closing), and Parent and Merger Sub fail to complete each of which is capable of being satisfied at the Closing) at the time the Closing by the date the Closing is required to would have occurred pursuant but for the failure of the Equity Financing to Section 1.2be funded, (iiB) the Debt Financing (or, if alternative financing is being used has been funded in accordance with Section 5.12, such alternative financing) has been funded the terms thereof or the Debt Financing Sources have confirmed in writing that it will be funded in accordance with the terms thereof at the Closing if the Equity Financing is funded at the Closing, (C) Newco and Merger Sub shall have failed to consummate the Merger by the time the Closing was required by Section 2.1 to occur and (iiiD) the Company has irrevocably confirmed in a written notice delivered writing to Parent and Parent’s sources of Debt Financing Newco that if specific performance is granted and the Equity Financing and Debt Financing are funded, then it will take such actions that are required of it by this Agreement to cause the Closing will to occur. For the avoidance of doubt, in In no event shall the Company be entitled to enforce or seek to enforce specifically the ParentNewco’s right obligation to cause the Equity Financing to be funded (or to complete exercise its third party beneficiary rights under the Merger Equity Commitment Letter) if the Debt Financing has not been funded (or will not be funded at the Closing if the Equity Financing is funded at the Closing). In no event shall the Company be entitled to seek specifically enforce the remedy of specific performance terms of this Agreement other than solely under the specific circumstances and as specifically set forth in Section 9.11(c)(i) and this Section 8.8(b9.11(c)(ii). For the avoidance of doubt, while the Company may pursue both a grant of specific performance and the payment of the Parent Termination Fee, under in no circumstances event shall the Company be entitled to receive both a grant remedy of specific performance or other equitable remedies against any Debt Financing Source. The election to pursue an injunction, specific performance or other equitable relief shall not restrict, impair or otherwise limit the Company from, in the alternative, seeking to terminate the Agreement and collect the Newco Termination Fee pursuant to Section 8.4(b); provided that in no event shall the Company be permitted to pursue an injunction, specific performance or other equitable relief or any other remedy under this Agreement or available at law or equity following the payment of the Parent Newco Termination FeeFee in accordance with the terms of this Agreement.

Specific Performance (Closing). Prior The parties hereto hereby agree that irreparable injury would occur in the event that any provision of this Agreement were not performed in accordance with the specific terms hereof or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages (notwithstanding the termination fees contemplated hereby). Accordingly, the parties hereto acknowledge and hereby agree that, prior to a valid termination of this Agreement pursuant to Article VII hereofSection 8.1, the Company shall be entitled to seek and obtain an injunction, specific performance and or other equitable remedies to enforce Parentremedy in connection with enforcing Newco’s and Merger Sub’s obligations obligation to cause the Equity Financing to be funded (and to exercise its third party beneficiary rights under the Equity Commitment Letters) and to consummate the Merger only in the event that each of the following conditions has been satisfied: (iA) all of the conditions set forth in Section 6.1 2.2(a) and Section 6.2 2.2(b) have been satisfied (other than those conditions that by their nature terms are to be satisfied by actions taken at the Closing), and Parent and Merger Sub fail to complete each of which is capable of being satisfied at the Closing) at the time the Closing by the date the Closing is required to would have occurred pursuant but for the failure of the Equity Financing to Section 1.2be funded, (iiB) the Debt Financing (or, if alternative financing is being used has been funded in accordance with Section 5.12, such alternative financing) has been funded the terms thereof or the Debt Financing Sources have confirmed in writing that it will be funded in accordance with the terms thereof at the Closing if the Equity Financing is funded at the Closing, (C) Newco and Merger Sub shall have failed to consummate the Merger by the time the Closing was required by Section 2.1 to occur and (iiiD) the Company has irrevocably confirmed in a written notice delivered writing to Parent and Parent’s sources of Debt Financing Newco that if specific performance is granted and the Equity Financing and Debt Financing are funded, then it will take such actions that are required of it by this Agreement to cause the Closing will to occur. For the avoidance of doubt, in In no event shall the Company be entitled to enforce or seek to enforce specifically the ParentNewco’s right obligation to cause the Equity Financing to be funded (or to complete exercise its third party beneficiary rights under the Merger Equity Commitment Letters) if the Debt Financing has not been funded (or will not be funded at the Closing if the Equity Financing is funded at the Closing). In no event shall the Company be entitled to seek specifically enforce the remedy of specific performance terms of this Agreement other than solely under the specific circumstances and as specifically set forth in Section 9.11(c)(i) and this Section 8.8(b9.11(c)(ii). For the avoidance of doubt, while the Company may pursue both a grant of specific performance and the payment of the Parent Termination Fee, under in no circumstances event shall the Company be entitled to receive both a grant remedy of specific performance or other equitable remedies against any Debt Financing Source. The election to pursue an injunction, specific performance or other equitable relief shall not restrict, impair or otherwise limit the Company from, in the alternative, seeking to terminate the Agreement and collect the Newco Termination Fee pursuant to Section 8.4(b); provided that in no event shall the Company be permitted to pursue an injunction, specific performance or other equitable relief or any other remedy under this Agreement or available at law or equity following the payment of the Parent Newco Termination Fee.