Common use of Failing Investors Clause in Contracts

Failing Investors. With respect to any Failing Investor, Parent and Merger Sub, acting on the instruction by the Determining Investor (who has the right but not the obligation to give such instruction), shall terminate such Failing Investor’s participation in the Transactions (which shall not constitute a termination of the Failing Investor’s Equity Commitment Letter, the Limited Guarantee or the Support Agreement for purposes thereof) by assigning the Failing Investor’s participation rights to another Investor and/or one or more third parties, in each such case, subject to the same priority allocations as set forth in Section 2.4 with respect to reallocating the participation rights of Non-Consenting Investors which shall apply mutatis mutandis, subject to the consent of such assignee, and, in connection with the completion of such assignment, the Failing Investor and the other Investors shall cooperate in such reasonable arrangements to permit Parent, Merger Sub and the other Investors to proceed with the Transactions and to terminate any liability or obligation of the Failing Investor under this Agreement (other than as specifically set forth in Sections 2.7, 2.13, 2.14, 4.8, 4.14 and 4.17, and with respect to breaches of this Agreement by the Failing Investor prior to the date of the completion of such arrangements); provided, that any assignee of the Failing Investor’s participation rights pursuant to this sentence shall assume (in a written agreement with the Failing Investor that is reasonably acceptable to Parent and the Determining Investor) the Failing Investor’s obligations under the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, and this Agreement, as applicable. Upon the relevant assignee assuming the Failing Investor’s obligations under the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, and this Agreement, as applicable, pursuant to the preceding sentence, and with the prior written consent of the Determining Investor and (to the extent necessary) the Company, all of the Failing Investor’s liabilities and obligations under the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, and this Agreement, as applicable, (other than as specifically set forth in Sections 2.7, 2.13, 2.14, 4.8, 4.14 and 4.17, and with respect to breaches of this Agreement by the Failing Investor prior to the date of the effectiveness of such termination) shall be terminated in accordance with their respective provisions, provided that in the case of a Failing Investor that is the Lead Investor, such Failing Investor’s Equity Commitment Letter and Limited Guarantee shall not be terminated unless (a) with the Determining Investor’s consent and (b) such Failing Investor has satisfied in full its indemnification obligations pursuant to Section 2.14 of this Agreement. For avoidance of doubt, except as set forth in the immediately preceding sentence, all other Investors shall remain bound by this Agreement.

Failing Investors. With respect to any Failing Investor, Parent and Merger Sub, acting on the instruction by the Determining Investor (who has Sub shall have the right (but not the obligation obligation) to give such instruction), shall terminate such Failing Investor’s participation in the Transactions transactions contemplated by the Merger Agreement and such Failing Investor’s Equity Commitment Letter, its Limited Guarantee or the Consortium Support Agreement (which shall not constitute a termination of the Failing Investor’s Equity Commitment Letter, the its Limited Guarantee or the Consortium Support Agreement for purposes thereof) by assigning the Failing Investor’s participation rights to another Investor and/or one or more third parties, in each such case, subject to the same priority allocations as set forth in Section 2.4 with respect to reallocating the participation rights of Non-Consenting Investors which shall apply mutatis mutandisInvestors, subject to the consent of such assignee, and, in connection with the completion of such assignment, the Failing Investor and the other Investors shall cooperate in such reasonable arrangements to permit Parent, Merger Sub and the other Investors to proceed with the Transactions and to terminate any liability or obligation of the Failing Investor under this Agreement (other than as specifically set forth in Sections 2.7, 2.13, 2.14, 4.84.3, 4.14 4.9 and 4.174.12, and with respect to breaches of this Agreement by the Failing Investor prior to the date of the completion of such arrangements); provided, that (1) any assignee of the Failing Investor’s participation rights pursuant to this sentence shall assume (in a written agreement with the Failing Investor that is reasonably acceptable to Parent and the Determining InvestorParent) the Failing Investor’s obligations under the Consortium Support Agreement, the its Limited Guarantee, the Guarantee and/or its Equity Commitment Letter, and this Agreement, as applicable. Upon the relevant assignee assuming the Failing Investor’s obligations under the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, and this Agreement, as applicable, pursuant to the preceding and (except as provided in this sentence, and ) this Agreement and/or (2) with the prior written consent of the Determining Investor and (Company to the extent necessary) the Company, terminating all of the Failing Investor’s liabilities and obligations under the Consortium Support Agreement, the its Limited Guarantee, the Guarantee and/or its Equity Commitment Letter, and this Agreement, as applicable, and this Agreement (other than as specifically set forth in Sections 2.7, 2.13, 2.14, 4.84.3, 4.14 4.9 and 4.174.12, and with respect to breaches of this Agreement by the Failing Investor prior to the date of the effectiveness of such termination) shall be terminated in accordance with their respective provisions, provided that in the case of a Failing Investor that is the Lead Investor, such Failing Investor’s Equity Commitment Letter and Limited Guarantee shall not be terminated unless (a) with the Determining Investor’s consent and (b) such Failing Investor has satisfied in full its indemnification obligations pursuant to Section 2.14 of this Agreement). For avoidance of doubt, except as set forth in the immediately preceding sentence, all other Investors shall remain bound by this Agreement.