Common use of Specific Performance (Closing) Clause in Contracts

Specific Performance (Closing). 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 Section 8.1, the Company shall be entitled to an injunction, specific performance or other equitable remedy in connection with enforcing Parent’s obligation to consummate the Merger only in the event that each of the following conditions has been satisfied: (A) the conditions set forth in Section 2.2(a) and Section 2.2(b) 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) 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 shall have failed to consummate the Merger by the time the Closing was required by Section 2.1 to occur and (D) the Company has irrevocably confirmed in writing to Parent that if specific performance is granted and the Financing 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 not 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 a remedy of specific performance or other equitable remedies against any 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 Parent Termination Fee pursuant to Section 8.4(b); provided that in no event shall the Company be (i) 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 Termination 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 any money damages (including all or any portion of the Parent Termination Fee).

Specific Performance (Closing). 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 Prior to a valid termination of this Agreement pursuant to Section 8.17.1, the Company shall be entitled to seek and obtain an injunction, specific performance or and other equitable remedy in connection with enforcing remedies to enforce Parent’s obligation and Merger Subsidiary’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: (A) the conditions set forth in Section 2.2(a) 6.1 and Section 2.2(b) have been satisfied 6.2 (other than those conditions that by their terms are to be satisfied by actions taken at the Closing, each of which is 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 Parent to fund the portion of the aggregate Merger Consideration not contemplated Equity Financing to be funded from the Financingfunded, and remain satisfied, (B) the Debt Financing (or, if Alternative Debt Financing is being used in accordance with Section 5.9(c), pursuant to the commitments with respect thereto) 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, Closing if the Equity Financing is funded at the Closing and (C) Parent and Merger Sub shall have failed to consummate the Merger by the time the Closing was required by Section 2.1 to occur and (D) the Company has irrevocably confirmed in writing to Parent that if specific performance is granted and the Equity Financing is and Debt Financing are funded, then it will take such actions that are required of it by this Agreement to cause the Closing to occur. In For the avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically Parent’s obligation right to cause the Merger Equity Financing to be consummated funded or to complete the Merger if the Debt Financing has not been funded (or Parent has confirmed in writing to the Company that it will not be fundedfunded at the Closing if the Equity Financing is funded at the Closing). In no event shall the Company be entitled to specifically enforce seek the terms remedy of specific performance 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)(ii8.12(b)(ii). For the avoidance of doubt, in no event shall the Company be entitled to a 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 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 8.4(b7.4(b); provided provided, however, that in no event shall the Company be (i) permitted to pursue an injunction, specific performance or other equitable relief or any other remedy remedies under this Agreement or available at law Law or equity following the payment of the Parent Termination 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 any money damages (including all or any portion of the Parent Termination Fee).

Specific Performance (Closing). 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 Prior to a valid termination of this Agreement pursuant to Section 8.1Article VII hereof, the Company shall be entitled to seek and obtain an injunction, specific performance or and other equitable remedy in connection with enforcing remedies to enforce Parent’s obligation 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: (Ai) all of the conditions set forth in Section 2.2(a) 6.1 and Section 2.2(b) 6.2 have been satisfied (other than those conditions that by their terms 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, 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 shall have failed to consummate the Merger by the time the Closing was required by Section 2.1 to occur and (Diii) the Company has irrevocably confirmed in writing a written notice delivered to Parent and Parent’s sources of Debt Financing that if specific performance is granted and the Equity Financing is and Debt Financing are funded, then it will take such actions that are required of it by this Agreement to cause the Closing to will occur. In For the avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically the Parent’s obligation right to cause the Merger Equity Financing to be consummated funded or to complete the Merger if the Debt Financing has not been funded (or Parent has confirmed in writing to the Company that it will not be fundedfunded at the Closing if the Equity Financing is funded at the Closing). In no event shall the Company be entitled to specifically enforce seek the terms remedy of specific performance 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)(ii8.8(b). For the avoidance of doubt, in no event shall while the Company be entitled to may pursue both a remedy grant of specific performance or other equitable remedies against any 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 Parent Termination Fee pursuant to Section 8.4(b); provided that in no event shall the Company be (i) 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 Termination Fee or (ii) permitted or Fee, under no circumstances shall the Company be entitled to receive both a grant of specific performance of the obligation to close contemplated by this Section 9.11(c) and any money damages (including all or any portion payment of the Parent Termination Fee).

Specific Performance (Closing). 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 Prior to a valid termination of this Agreement pursuant to Section 8.1Article VII hereof, the Company shall be entitled to seek and obtain an injunction, specific performance or and other equitable remedy in connection with enforcing Parent’s obligation relief to cause, or to require Parent to cause, the Equity Commitment Letter to be funded and to consummate the Merger Merger, only in the event that each of the following conditions has been satisfied: (A) the conditions set forth in Section 2.2(a) 6.1 and Section 2.2(b) 6.2 have been satisfied or waived (other than those conditions that (x) by their terms nature are to be satisfied at the Closing, each of which is Closing and that would be capable of being satisfied at the if there were a Closing, or (y) at the time 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 would by the date the Closing is required to have occurred but for the failure of the Parent pursuant to fund the portion of the aggregate Merger Consideration not contemplated to be funded from the FinancingSection 1.2, (B) the Debt Financing (or, if an Alternative Financing Commitment is being used in accordance with this Agreement, such alternative 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 at the terms thereof Closing if the Equity Financing is funded at the Closing, and (C) Parent and Merger Sub shall have failed to consummate the Merger by the time the Closing was required by Section 2.1 to occur and (D) the Company has irrevocably confirmed in writing a written notice delivered to Parent and the Lenders that if specific performance is granted and the Equity Financing is and Debt Financing are funded, then it will take such actions that are required of it by this Agreement to cause the Closing to will occur. In For the avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically the Parent’s obligation right to cause the Merger Equity Financing to be consummated funded or to complete the Merger if the Debt Financing has not been funded (or Parent has confirmed in writing to the Company that it will not be fundedfunded at the Closing if the Equity Financing is funded at the Closing). In no event shall the Company be entitled to specifically enforce seek the terms remedy of specific performance 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)(ii8.8(b). For the avoidance of doubt, in no event shall while the Company be entitled to may pursue both a remedy grant of specific performance or other equitable remedies against any 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 Parent Termination Fee pursuant to Section 8.4(b); provided that in no event shall the Company be (i) 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 Termination Fee or (ii) permitted or Fee, under no circumstances shall the Company be entitled to receive both a grant of specific performance of the obligation to close contemplated by this Section 9.11(c) and any money damages (including all or any portion payment of the Parent Termination Fee).