Defaulting Investor Clause Samples

Defaulting Investor. If any Investor defaults in any of its obligations hereunder or is unable or unwilling to proceed with the Closing of the transactions under this Agreement, such Investor (a “Defaulting Investor”) shall notify the Company and each other Investor (each, a “Non-Defaulting Investor”) within five (5) business days prior to the date of the Authorization Date. The Non-Defaulting Investors may make arrangements reasonably satisfactory to the Company for the purchase of the Securities that were to be purchased by the Defaulting Investor by any of the Non-Defaulting Investors or by any other Person reasonably acceptable to the Company; provided, that such arrangements and purchase by any Non-Defaulting Investor or other Person shall in no way relieve such Defaulting Investor of any liability under this Agreement. Notwithstanding anything to the contrary herein, the Company may proceed with the Closing with any Non-Defaulting Investors and/or any other Person that pursuant to the previous sentence has agreed to purchase the Defaulting Investor(s) Subscriptions.

Defaulting Investor. (a) Upon any Investor failing to make any purchase referred to in Section 3.1(b) on the applicable Closing Date, the Company shall promptly thereafter provide written notice thereof to such Investor that such payment is past due. If such Investor fails to make payment for such purchase within three (3) Business Days after such notice has been given, the Board of Directors (excluding any director designated by such Investor) may deem such Investor a “Defaulting Investor” and the Company may, in its sole discretion, purchase, and the Defaulting Investor shall sell (a “Repurchase”), all or any portion (such amount to be determined by the Company in its sole discretion) of such Defaulting Investor’s Series A Shares and any shares of Series A Convertible Preferred Stock of the Company purchased pursuant to the exercise of a Warrant (the “Repurchase Shares”) at a purchase price of $0.0000001 per Series A Share (the “Repurchase Price”); provided, however, if Capital Z is the Defaulting Investor, any shares of Series A Convertible Preferred Stock issued pursuant to the exercise of the Warrant issued to Capital Z Investments, LLC, shall be deemed Repurchase Shares with respect to Capital Z. The closing of any such Repurchase shall take place at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ at such time(s), date(s) or place(s) as shall be determined by the Company in its sole discretion (the “Repurchase Closing”). With respect to any contemplated Repurchase Closing, at least two (2) Business Days prior to the contemplated date of the Repurchase Closing, the Company shall deliver to the Defaulting Investor a notice, which shall specify (i) the contemplated date for the Repurchase Closing and (ii) the number of Series A Shares to be purchased by the Company from the Defaulting Investor. At the Repurchase Closing, as consideration in full for the Series A Shares being purchased by the Company pursuant to this Section 2.3(a), the Company, at its election, shall transfer the Repurchase Price to the Defaulting Investor (by wire transfer to an account specified by the Defaulting Investor or by check delivered to the Defaulting Investor). Each Investor hereby irrevocably appoints the Company as its agent and attorney-in-fact for the purposes of effecting and completing the Repurchase from such Investor at such time or times as it may become a Defaulting Investor in accordance with this Section 2.3(a). (b) If on the date that is ninety ...

Defaulting Investor. If any Investor defaults on its obligation to purchase the Unsubscribed Notes that it has agreed to purchase hereunder (such Investor, a “Defaulting Investor”), the non-Defaulting Investors may in their discretion arrange for the purchase of such Notes by other persons (including such non-Defaulting Investors on a pro rata basis) on the terms contained in this Commitment Agreement. As used in this Commitment Agreement, the term “Investor” includes, for all purposes of this Commitment Agreement unless the context otherwise requires, any person not listed in Schedule 1(h) hereto that, pursuant to this Section 24, purchases the Unsubscribed Notes that a Defaulting Investor agreed, but failed, to purchase. Nothing contained herein shall relieve a Defaulting Investor of any liability it may have to the Company or any non-Defaulting Investor for damages caused by its default.

Defaulting Investor. (a) If, on the Closing Date, any Investor defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Investors or the Company may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company and the non-defaulting Investors on the terms contained in this Agreement. If no such arrangements are made such that the Closing can occur on or before March 15, 2004, then, at the option of the Company, either (i) this Agreement shall terminate without liability on the part of the non-defaulting Investors or (ii) the Closing shall occur without the defaulting Investors. Any termination of this Agreement pursuant to this Section 7 shall be without liability on the part of the Company or the Guarantors. As used in this Agreement, the term "Investor" includes, for all purposes of this Agreement unless the context otherwise requires, any person not an original party to this Agreement that, pursuant to this Section 7, purchases Securities that a defaulting Investor agreed but failed to purchase. (b) Nothing contained herein shall relieve a defaulting Investor of any liability it may have to the Company, the Guarantors or any non-defaulting Investor for damages caused by its default.

Defaulting Investor. If, by 2:00 p.m. (New York City time), whether or not the Agent has advanced the amount of the applicable Variable Funding Advance, one or more Investors (each, a "Defaulting Investor", and each Investor other than a Defaulting Investor being referred to as a "Non-Defaulting Investor") fails to make available to the Agent its Pro Rata Share of the Variable Funding Advance required under Section 2.03 (the aggregate amount not so made available to the Agent being herein called the "Purchase Price Deficit"), then upon notice from the Agent, each Non-Defaulting Investor shall promptly pay, by no later than 3:00 p.m. (New York City time) to the Agent, in immediately available funds at an account designated by the Agent, an amount equal to the lesser of (x) such Non-Defaulting Investor's proportionate share (based upon the relative Commitments of the Non-Defaulting Investors) of the Purchase Price Deficit and (y) its unused Commitment. A Defaulting Investor shall forthwith, upon demand, pay to the Agent for the ratable benefit of the Non-Defaulting Investors all amounts paid by each Non-Defaulting Investor on behalf of such Defaulting Investor, together with interest thereon, for each day from the date a payment was made by a Non-Defaulting Investor until the date such Non-Defaulting Investor has been paid such amounts in full, at a rate per annum equal to the sum of the Corporate Base Rate, plus 2.00% per annum. It is understood and agreed that this Section 2.07 shall in no manner relieve any Investor of its obligation to fund any Variable Funding Advance hereunder, subject to the conditions of the Agreement.

Defaulting Investor. Notwithstanding anything to the contrary (but subject to the satisfaction or (to the extent permitted by Law) waiver of the conditions to Closing set forth in this Agreement), in the event that any Investor (other than the Investor Representative) shall breach its obligation to pay to the Company at the Closing its pro rata portion of the Purchase Price in accordance with Section 2.03, the Investor Representative shall purchase from the Company, and the Company shall issue and deliver to the Investor Representative, the shares of Preferred Stock and the Warrants otherwise allocable to such defaulting Investor in accordance with this Agreement. In the event that the Investor Representative shall become obligated to purchase shares of Preferred Stock and Warrants otherwise allocable to a defaulting Investor in accordance with the foregoing sentence, the Investor Representative shall have the right, in its sole discretion, upon written notice to the Company, to delay the Closing for a period of up to five business days. This Section 2.04 shall be without prejudice to any rights or remedies that the Company, the Investor Representative or any other person may have against the defaulting Investor in respect of such breach.

Defaulting Investor. (a) If any Investor defaults on its obligation to purchase the Unsubscribed New Notes that it has agreed to purchase hereunder, the non-defaulting Investors may in their discretion arrange for the purchase of such Unsubscribed New Notes by other persons satisfactory to the Issuer (including such non-defaulting Investors on a pro rata basis) on the terms contained in this Agreement. As used in this Agreement, the term “Investor” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule A hereto that, pursuant to this Section 10, purchases the Unsubscribed New Notes that a defaulting Investor agreed but failed to purchase. (b) If, after giving effect to any arrangements for the purchase of the Unsubscribed New Notes of a defaulting Investor or Investors by the non-defaulting Investors and the Issuer as provided in paragraph (a) above, the Issuer shall not have initiated litigation against the defaulting Investor or Investors seeking specific performance of their obligations under this Agreement and the aggregate principal amount of Unsubscribed New Notes that remain unpurchased on the Effective Date exceeds $15.0 million, then this Agreement shall terminate without liability on the part of the non-defaulting Investors. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Issuer, except that the Issuer will continue to be liable for the payment of expenses as set forth in Section 3(c) hereof and except that the provisions of Section 8 hereof shall not terminate and shall remain in effect. (c) Nothing contained herein shall relieve a defaulting Investor of any liability it may have to the Issuer or any non-defaulting Investor for damages caused by its default.

Defaulting Investor. If and to the extent the Investor does not (i) subscribe to all of the Preferred Shares assigned to it in due form as set forth in this Investment Agreement, (ii) make payment of the nominal value of EUR 1.00 per each Preferred Share subscribed to as set forth in this Investment Agreement, or (iii) make the Investor’s contribution in accordance with Section 5 when due and payable (in which cases (i) – (iii) the Investor shall be referred to as “Defaulting Investor”), the Defaulting Investor shall correct such non-compliance within a period of five (5) Business Days as of receipt of a written reminder by the Existing Shareholder or the Company (“Grace Period”).