Common use of Failure to Purchase Clause in Contracts

Failure to Purchase. In the event that the Investor fails to exercise its subscription rights provided in this Article V within the applicable period or, if so exercised, the Investor is unable to consummate such purchase within the time period specified in Section 5.3 above because of its failure to obtain any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election notice, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered Securities not elected to be purchased pursuant to this Article V or which the Investor is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the Investor. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered Securities or entered into an agreement to sell the Covered Securities within said 60-day period (or sold and issued Covered Securities in accordance with the foregoing within thirty (30) days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered Securities without first offering such securities to the Investor in the manner provided above.

Failure to Purchase. In the event that the any CD&R Investor or any Golden Gate Investor fails to exercise its subscription rights provided in this Article ARTICLE V within the applicable period or, if so exercised, the such CD&R Investor or Golden Gate Investor is unable to consummate such purchase within the time period specified in Section 5.3 above because of its failure to obtain any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election notice, the Company shall thereafter be entitled during the period of 60 sixty (60) days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered Securities covered thereby shall be consummated, if at all, within 30 thirty (30) days from the date of said agreement) to sell the Covered Securities not elected to be purchased pursuant to this Article ARTICLE V or which the such CD&R Investor or Golden Gate Investor is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the such CD&R Investor or Golden Gate Investor. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 ninety (90) days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered Securities or entered into an agreement to sell the Covered Securities within said 60-day period (or sold and issued Covered Securities in accordance with the foregoing within thirty (30) days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 ninety (90) days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered Securities without first offering such securities to the each CD&R Investor or Golden Gate Investor in the manner provided above.

Failure to Purchase. In the event that the Investor Exercising Entity fails to exercise its subscription gross- up purchase rights provided in this Article V Section 4.7 within the applicable said five business day period or, if so exercised, the Investor Exercising Entity is unable to consummate such purchase within the time period specified in Section 5.3 4.7(c) above because of its failure to obtain any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticeapproval, the Company shall thereafter be entitled during the period of 60 120 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 60 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.7 or which the Investor Exercising Entity is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchaseapproval, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorExercising Entity. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days business days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 180 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60120-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 60 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 180 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Exercising Entity in the manner provided above.

Failure to Purchase. In the event that the Investor Exercising Entity fails to exercise its subscription preemptive rights as provided in this Article V Section 4.04, or enter into a confidentiality undertaking as contemplated by Section 4.04(b), within the applicable said 2 business day period or, if so exercised, the Investor Exercising Entity is unable to consummate such purchase within the time period specified in Section 5.3 4.04(c) above because of its failure to obtain any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticeapproval, the Company shall thereafter be entitled during the period of 60 120 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 60 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.04 or which the Investor Exercising Entity is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchaseapproval, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorExercising Entity. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days business days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 180 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60120-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 60 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 180 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Exercising Entity in the manner provided above.

Failure to Purchase. In the event that the Investor Subscription Entity fails to exercise its subscription rights provided in this Article V Section 4.11 within the applicable period said ten business day period, or, if so exercised, the Investor Subscription Entity is unable to consummate such purchase within the time period specified in Section 5.3 4.11(c) above because of its failure to obtain for any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticereason, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.11 or which the Investor Subscription Entity does not or is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers Purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorSubscription Entity. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days business days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 120 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 180 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Subscription Entity in the manner provided above.

Failure to Purchase. In the event that the Investor Gross-Up Entity fails to exercise its subscription gross-up purchase rights provided in this Article V Section 4.11 within the applicable said fifteen business day period or, if so exercised, the Investor Gross-Up Entity is unable to consummate such purchase within the time period specified in Section 5.3 4.11(c) above because of its failure to obtain any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticeapproval, the Company shall thereafter be entitled during the period of 60 90 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.11 or which the Investor Gross-Up Entity is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchaseapproval, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorGross-Up Entity. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days business days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 180 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 6090-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 180 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Gross-Up Entity in the manner provided above.

Failure to Purchase. In the event that the Investor Shareholder fails to exercise its subscription rights provided in this Article V Section 4.16 within the applicable period Response Period, or, if so exercised, the Investor Shareholder is unable to consummate such purchase within the time period specified in Section 5.3 4.16(c) above because of its failure to obtain for any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticereason, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.16 or which the Investor Shareholder does not or is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorShareholder. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder shareholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 120 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 120 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Shareholder in the manner provided above.

Failure to Purchase. Notwithstanding anything to the contrary set forth in this SECTION 9, in the event that the Company fails to redeem all of the shares requested to be redeemed by the Purchasers exercising the Put Rights pursuant to SECTION 9.1 above by the later of (i) six months after the date of the Request Notice or (ii) three months after the determination of the Fair Market Value but in no event later than nine months after the date of Request Notice (such latter date being referred to herein as the "Mandatory Date"), then the Company shall issue to the Purchasers who have exercised Put Rights that number of Common Shares as is then equal to 1% of the outstanding Common Shares of the Company determined on a Fully Diluted Basis, and on each third month anniversary of the Mandatory Date until the Repurchase Price for all shares as to which Put Rights were exercised is paid in full, the Company shall issue to the Purchasers who have exercised Put Rights that number of Common Shares as is on the date of issuance thereof equal to 1% of the outstanding Common Shares of the Company on a Fully Diluted Basis. In the event that the Investor Company fails to exercise its subscription rights provided in this Article V within the applicable period or, if so exercised, the Investor is unable to consummate such purchase within the time period specified in Section 5.3 above because of its failure to obtain any required regulatory or stockholder consent or approval or because of the failure to purchase any or redeem all of the Covered Securities contemplated Shares requested to be purchased redeemed by the election notice, Purchasers exercising the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (Put Rights pursuant to which SECTION 9.1 above within two years after the sale earlier of the Covered Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement(x) to sell the Covered Securities not elected to be purchased pursuant to this Article V or which the Investor is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the Investor. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 days from the date of the applicable agreement with respect determination of the Fair Market Value or (y) the Mandatory Date, then such Purchasers shall have the right to immediately designate a majority of the members of the Board until such saletime as all of the Shares requested to be redeemed by such Purchasers are redeemed. In All of the event parties to this Agreement covenant and agree to take all action as shall be necessary or appropriate, including, without limitation, voting all of their Common Shares in favor of any necessary amendment to the Company's Certificate of Incorporation or otherwise to cause the Company has not sold to issue the Covered Securities or entered into an agreement Shares required to sell the Covered Securities within said 60-day period (or sold and be issued Covered Securities in accordance with the foregoing within thirty (30) days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered Securities without first offering such securities to the Investor in the manner provided abovePurchasers pursuant to this SECTION 9.3.

Failure to Purchase. In the event that the Investor Purchaser fails to exercise its subscription rights provided in this Article V Section 6.3 within the applicable period Response Period, or, if so exercised, the Investor such Purchaser is unable to consummate such purchase within upon the time period specified in Section 5.3 above because of its failure to obtain any required regulatory or stockholder consent or approval or because closing of the failure to purchase sale and issuance of New Securities for any or all of the Covered Securities contemplated to be purchased by the election noticereason, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 6.3 or which the Investor Purchaser does not or is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the Investorsuch Purchaser. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor such Purchaser in the manner provided above.

Failure to Purchase. In the event that the Investor Exercising Entity fails to exercise its subscription gross-up purchase rights provided in this Article V Section 4.7 within the applicable said five business day period or, if so exercised, the Investor Exercising Entity is unable to consummate such purchase within the time period specified in Section 5.3 4.7(c) above because of its failure to obtain any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticeapproval, the Company shall thereafter be entitled during the period of 60 120 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 60 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.7 or which the Investor Exercising Entity is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchaseapproval, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorExercising Entity. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days business days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 180 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60120-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 60 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 180 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Exercising Entity in the manner provided above.

Failure to Purchase. In the event that the Investor a Purchaser fails to exercise its subscription rights provided in this Article V Section 4.15 within the applicable period Response Period, or, if so exercised, the Investor such Purchaser is unable to consummate such purchase within the time period specified in Section 5.3 4.15(c) above because of its failure to obtain for any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticereason, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.15 or which the Investor such Purchaser does not or is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the Investorsuch Purchaser. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder shareholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 120 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 120 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor such Purchaser in the manner provided above.

Failure to Purchase. In the event that the Investor Purchaser fails to exercise its subscription rights provided in this Article V Section 4.16 within the applicable period Response Period, or, if so exercised, the Investor Purchaser is unable to consummate such purchase within the time period specified in Section 5.3 4.16(c) above because of its failure to obtain for any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticereason, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.16 or which the Investor Purchaser does not or is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorPurchaser. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder shareholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 120 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 120 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Purchaser in the manner provided above.

Failure to Purchase. In (a) Notwithstanding any other remedy available to the event Company or any other Purchaser or any other provision of this Agreement, the Rights Agreement or the Voting Agreement, the failure by a Purchaser to pay in full the amount due from such Purchaser (the "Defaulting Purchaser") at the First Closing or any Subsequent Closing shall result in the Defaulting Purchaser's loss of (i) rights to designate and maintain a director under the Voting Agreement and (ii) with respect to the Series B Preferred, Series C Preferred and Series D Preferred held by the Defaulting Purchaser, all observation rights under Section 17 of the Rights Agreement; PROVIDED, HOWEVER, that the Investor fails to exercise its subscription loss of the rights provided described in this Article V within the applicable period or, if so exercised, foregoing clause (ii) and the Investor is unable to consummate such purchase within the time period specified Rights Forfeiture (as defined in Section 5.3 above because 2.4(c) hereof) shall not apply to any Series B Preferred, Series C Preferred or Series D Preferred which any Purchaser (other than a Defaulting Purchaser) shall have purchased from a Defaulting Purchaser pursuant to the provisions of its failure this Section 2.4 (and to obtain any required regulatory the extent that there shall have been a loss of those rights, including a loss of rights as a result of a Rights Forfeiture, prior to such purchase, those rights shall be retroactively reinstated) if one or stockholder consent or approval or because more Purchasers shall have paid to the Company on behalf of the failure to Defaulting Purchaser, through the purchase any of Shares at or all of the Covered Securities contemplated to be purchased by the election notice, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered Securities not elected to be purchased pursuant to this Article V or which the Investor is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable subsequent to the purchasers of such securities in the Private Placement, the underwritten public offering First Closing or Rule 144A offeringa Subsequent Closing, as the case may be, than were specified pursuant to the procedures set forth in this Agreement, the amount due from the Defaulting Purchaser. In the event of any such failure by a Defaulting Purchaser to so fund, (i) all Purchasers who have not failed to fund as required hereunder shall have the right, which right shall continue for a period of one year from the occurrence of such failure, to purchase their pro rata share of the Shares previously purchased pursuant to this Agreement by the Defaulting Purchaser, at a price equal to 50% of the aggregate price paid by the Defaulting Purchaser for such Shares, plus any accrued and unpaid dividends thereon, or if such price is not legally enforceable, the minimum price enforceable under law (and shall have the right to purchase their pro rata share of any Shares not so purchased by other Purchasers entitled to purchase such Shares) and (ii) all Purchasers who have not so failed to fund shall have the right, but not the obligation, to purchase their pro rata share of such unpurchased Shares (and shall have the right to purchase their pro rata share of any Shares not so purchased by other Purchasers entitled to purchase such Shares). (b) Upon a Defaulting Purchaser's failure to purchase Shares at the First Closing or any Subsequent Closing, the Successor shall give written notice of such failure to each of the other Purchasers. Each of the other Purchasers shall have ten (10) business days from its receipt of such notice to purchase a portion or all of such unpurchased Shares (the Shares so purchased by the other Purchasers pursuant to this Section 2.4(b) being referred to herein as the "Purchased Default Shares"). The penalties set forth in the Company’s first sentence of Section 2.4(a) shall only apply to a Defaulting Purchaser if any of such Defaulting Purchaser's unpurchased Shares have not been purchased by the other Purchasers at the end of the tenth (10th) business day after the last Purchaser receives notice under this Section 2.4(b). (c) If a Defaulting Purchaser shall fail to purchase Shares at the Investor. Notwithstanding First Closing or any Subsequent Closing and the foregoingShares which the Defaulting Purchaser shall fail to purchase are not purchased by the Defaulting Purchaser or do not become Purchased Default Shares, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting periodin each case, the time period during which such sale may be consummated shall be extended until the expiration of five within twenty (520) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 days from following the date of the applicable agreement with respect First Closing or Subsequent Closing, as the case may be, then the Successor may, at any time subsequent to such sale. In the event the Company has not sold the Covered Securities or entered into an agreement to sell the Covered Securities within said 60-day period (or sold and issued Covered Securities in accordance with expiration of the foregoing twenty (20) day period, provide the Defaulting Purchaser with notice of its intention to elect to impose the Rights Forfeiture (as defined below) if the Shares are not purchased by the Defaulting Purchaser or the Shares do not become Purchased Default Shares within thirty sixty (3060) days from following the date on which such notice is given to the Defaulting Purchaser. If upon expiration of said agreement the foregoing sixty (60) day period, any such Shares have not been purchased by the Defaulting Purchaser or become Purchased Default Shares, such Shares shall automatically, upon expiration of such sixty (60) day period, be subject to the Rights Forfeiture. For purposes of this Section 2.4, the term "Rights Forfeiture" shall mean the forfeiture of (i) the Preemptive Right set forth in Section 13 of the Rights Agreement, (ii) the rights of first offer and co-sale set forth in Section 14 of the Rights Agreement, and (iii) the right to be an Initiating Preferred Holder (as such period may be extended defined in the manner described above for a period not to exceed 90 days from the date of said agreementRights Agreement)), the Company shall not thereafter offer, issue or sell such Covered Securities without first offering such securities to the Investor in the manner provided above.

Failure to Purchase. In the event that the Investor Subscription Entity fails to exercise its subscription rights provided in this Article V Section 4.9 within the applicable period said ten business day period, or, if so exercised, the Investor Subscription Entity is unable to consummate such purchase within the time period specified in Section 5.3 4.9(c) above because of its failure to obtain for any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticereason, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.9 or which the Investor Subscription Entity does not or is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers Purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorSubscription Entity. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days business days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 120 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 120 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Subscription Entity in the manner provided above.

Failure to Purchase. In the event that the Investor fails to exercise its his subscription rights provided in this Article V Section 4.7 within the applicable period Response Period, or, if so exercised, the Investor is unable to consummate such purchase within the time period specified in Section 5.3 4.7(c) above because of its failure to obtain for any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticereason, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.7 or which the Investor does not or is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the Investor. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder shareholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 120 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 60-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 120 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor in the manner provided above.

Failure to Purchase. In If the event that conditions set forth in Article 5(c)(i) below to Purchaser’s obligations with respect to the Investor Second Purchase, Third Purchase, and Final Purchase have been satisfied or waived and Purchaser fails to exercise fully perform its subscription rights provided in this Article V within obligations with respect to the applicable period orSecond Purchase, if so exercisedThird Purchase, or Final Purchase for which such conditions have been satisfied or waived (the Investor is unable to consummate such purchase within the time period specified in Section 5.3 above because of its failure to obtain “Unperformed Closing”), then: i) Interest shall accrue on any required regulatory or stockholder consent or approval or because unpaid portion of the failure to purchase any Second Payment, Third Payment, or all of the Covered Securities contemplated to be purchased by the election notice, the Company shall thereafter be entitled during the period of 60 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered Securities not elected to be purchased pursuant to this Article V or which the Investor is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offeringFinal Payment, as the case may be, than were specified with respect to the Unperformed Closing, commencing on the earlier of (A) the date the Unperformed Closing was scheduled by Purchaser to occur, or (B) if not scheduled by the Purchaser, then on the last date on which Purchaser was permitted to schedule such Unperformed Closing as provided in Article 1(a)(ii) above (the earlier of such dates being hereinafter referred to as the “Unperformed Closing Date”), which interest shall accrue at a rate equal to three percent above the rate then quoted in the Company’s notice “Money Rates” column of the “Money & Investing” section of The Wall Street Journal as being the “prime rate” of interest on the Unperformed Closing Date. ii) Each member of the Board of Directors of Casual shall be entitled to one (1) vote apiece, as provided in the New Shareholder Agreement. iii) Purchaser shall no longer be entitled to receive one-hundred percent (100%) of the distributions of Casual and all distributions from Casual to its shareholders shall be made as provided in Section 3(c)(ii) of the New Shareholder Agreement. iv) All amounts received by Sellers under Section 3(c)(ii) of the New Shareholder Agreement shall be applied against, and reduce the outstanding balance of, the Second Payment, Third Payment, or Final Payment, as the case may be, to be paid by Purchaser in connection with an Unperformed Closing, on a dollar-for-dollar basis. v) In the event that Purchaser fails to satisfy the condition set forth in Article 5(c)(ii)(G) below, and such condition is waived by a Majority In Interest of the Sellers on or before the Election Deadline (as defined below), or the Purchaser consents to such waiver by a Majority In Interest of the Sellers after the Election Deadline, then: (A) Purchaser shall be required to pay to the Investor. Notwithstanding Sellers the foregoingfull amount of the Second Payment, if Third Payment, or Final Payment, as the case may be, to be paid in connection with the Unperformed Closing, plus all accrued interest; and (B) upon full payment of such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting periodamount, the time period during which Sellers shall sell the Shares in connection with such sale may Unperformed Closing, such Unperformed Closing shall cease to be consummated treated as an Unperformed Closing under this Agreement and under the New Shareholder Agreement, and this Article 1(e) shall be extended until the expiration of five (5) Business Days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 days from the date of the applicable agreement cease to apply with respect to such saleUnperformed Closing, but this Article 1(e) shall be applicable with respect to any future occurring Unperformed Closing. In For purposes of this Article 1(e)(v), the event term “Election Deadline” shall mean the Company has not sold later to occur of (I) the Covered Securities date which is six (6) months after the Unperformed Closing Deadline (as defined in Article 5(c)(ii)(G) below) or entered into an agreement to sell (II) the Covered Securities within said 60-day period (or sold and issued Covered Securities date the Sellers have received full payment of the Equalizing Distribution Amount from Casual in accordance with Section 3(c)(ii)(1) of the foregoing within thirty (30) days from New Shareholder Agreement. Notwithstanding anything in this Agreement to the date of said agreement (as such period may be extended contrary, in the manner described above for event that Purchaser fails to satisfy the condition set forth in Article 5(c)(ii)(G) below, such condition is not waived by a period Majority In Interest of the Sellers on or before the Election Deadline, and Purchaser does not consent to exceed 90 days such waiver by a Majority In Interest of the Sellers after the Election Deadline, then Purchaser shall have no further obligation to purchase from the date of said agreement))Sellers, the Company and Sellers shall not thereafter offerhave no further obligation to sell to Purchaser, issue or sell such Covered Securities without first offering such securities to the Investor in the manner provided aboveany additional Shares hereunder.

Failure to Purchase. In the event that the Investor Gross-Up Entity fails to exercise its subscription gross-up purchase rights provided in this Article V Section 4.10 within the applicable said fifteen business day period or, if so exercised, the Investor Gross-Up Entity does not or is unable to consummate such purchase within the their applicable time period periods specified in Section 5.3 4.10(c) above because of its failure to obtain for any required regulatory or stockholder consent or approval or because of the failure to purchase any or all of the Covered Securities contemplated to be purchased by the election noticereason, the Company shall thereafter be entitled during the period of 60 90 days following the conclusion of the applicable period to sell or enter into an agreement (pursuant to which the sale of the Covered New Securities covered thereby shall be consummated, if at all, within 30 days from the date of said agreement) to sell the Covered New Securities not elected to be purchased pursuant to this Article V Section 4.10 or which the Investor Gross-Up Entity does not or is unable to purchase because of such failure to obtain any such consent or approval or otherwise fails to purchase, at a price and upon terms no more favorable to the purchasers of such securities in the Private Placement, the underwritten public offering or Rule 144A offering, as the case may be, than were specified in the Company’s notice to the InvestorGross-Up Entity. Notwithstanding the foregoing, if such sale is subject to the receipt of any regulatory or stockholder approval or consent or the expiration of any waiting period, the time period during which such sale may be consummated shall be extended until the expiration of five (5) Business Days business days after all such approvals or consents have been obtained or waiting periods expired, but in no event shall such time period exceed 90 180 days from the date of the applicable agreement with respect to such sale. In the event the Company has not sold the Covered New Securities or entered into an agreement to sell the Covered New Securities within said 6090-day period (or sold and issued Covered New Securities in accordance with the foregoing within thirty (30) 30 days from the date of said agreement (as such period may be extended in the manner described above for a period not to exceed 90 180 days from the date of said agreement)), the Company shall not thereafter offer, issue or sell such Covered New Securities without first offering such securities to the Investor Gross-Up Entity in the manner provided above.