Common use of Default by the Underwriter Clause in Contracts

Default by the Underwriter. (a) If any Underwriter or Underwriters shall default in its or their obligations to purchase any Security on the Closing Date and the aggregate number of the Security which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of such Security to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase such Security which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of the Security with respect to which such default or defaults occur is more than ten percent (10%) of the total number of such Security to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the remaining Underwriters and the Company for the purchase of such Security by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. (b) If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the Securities of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 6, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order to permit the Company to effect whatever changes in the Registration Statement, the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly file any amendments to the Registration Statement or the Prospectus which may thereby be made necessary, and (ii) the respective numbers of the Securities to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or any other Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 6 shall be without liability on the part of any non-defaulting Underwriters or the Company, (except in each case as provided in Sections 3(m), 5, 8 and 9), but nothing in this Agreement shall relieve a defaulting Underwriter of its liability, if any, to the Company for damages occasioned by its default hereunder).

Default by the Underwriter. (a) If any Underwriter or Underwriters shall default in its or their obligations to purchase any Security Units, Option Shares and/or Option Warrants hereunder on the Closing Date or any Option Closing Date and the aggregate number of the Security Units, Option Shares and/or Option Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of such Security the Units, Option Shares and/or Option Warrants to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase such Security the Units, Option Shares and/or Option Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of the Security Units, Option Shares and/or Option Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of such Security Units, Option Shares and/or Option Warrants to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the remaining Underwriters and the Company for the purchase of such Security Units, Option Shares and/or Option Warrants by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. (b) If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the Securities Units, Option Shares and/or Option Warrants of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 6, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order to permit the Company to effect whatever changes in the Registration Statement, the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly file any amendments to the Registration Statement or the Prospectus which may thereby be made necessary, and (ii) the respective numbers of the Securities Units, Option Shares and/or Option Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or any other Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 6 shall be without liability on the part of any non-defaulting Underwriters or the Company, (except in each case as provided in Sections 3(m), 5, 8 and 9), but nothing in this Agreement shall relieve a defaulting Underwriter of its liability, if any, to the Company for damages occasioned by its default hereunder).

Default by the Underwriter. (a) If any Underwriter or Underwriters shall default in its or their obligations to purchase any Security on the Closing Date or any Option Closing Date and the aggregate number of the Security which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of such Security to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase such Security which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of the Security with respect to which such default or defaults occur is more than ten percent (10%) of the total number of such Security to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the remaining Underwriters and the Company for the purchase of such Security by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. (b) If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the Securities of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 6, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order to permit the Company to effect whatever changes in the Registration Statement, the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly file any amendments to the Registration Statement or the Prospectus which may thereby be made necessary, and (ii) the respective numbers of the Securities to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or any other Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 6 shall be without liability on the part of any non-defaulting Underwriters or the Company, (except in each case as provided in Sections 3(m), 5, 8 and 9), but nothing in this Agreement shall relieve a defaulting Underwriter of its liability, if any, to the Company for damages occasioned by its default hereunder).

Default by the Underwriter. (a) If any the Underwriter shall fail at the Closing Time or Underwriters shall default in its or their obligations a Date of Delivery to purchase the Securities which it is obligated to purchase under this Agreement (the “Defaulted Securities”), the Underwriter shall have the right, within 24 hours thereafter, to make arrangements for one or more non-defaulting Underwriter, or any Security on other underwriters, to purchase all, but not less than all, of the Closing Date Defaulted Securities in such amounts as may be agreed upon and upon the aggregate terms herein set forth; if, however, the Underwriter shall not have completed such arrangements within such 24-hour period, then: (i) if the number of the Security which such defaulting Underwriter or Underwriters agreed but failed to purchase Defaulted Securities does not exceed ten percent (10%) % of the total number of such Security Securities to be purchased by all Underwriters on such Closing Datedate, the other Underwriters non-defaulting Underwriter shall be obligated severally, in proportion to their respective commitments hereunder, to purchase such Security which such the full amount thereof in the proportions that its respective underwriting obligations hereunder bear to the underwriting obligations of the non-defaulting Underwriter or Underwriters agreed but failed Underwriter, or (ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to purchase be purchased on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of the Security date, this Agreement or, with respect to any Date of Delivery which such default or defaults occur is more than ten percent (10%) occurs after the Closing Time, the obligation of the total number of such Security Underwriter to purchase, and the Company to sell, the Option Securities to be purchased by all Underwriters and sold on such Date of Delivery shall terminate without liability on the part of the non-defaulting Underwriter. No action taken pursuant to this Section shall relieve the defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Date and arrangements satisfactory Time, which does not result in a termination of the obligation of the Underwriter to the remaining Underwriters purchase and the Company for to sell the purchase of such Security by other persons are not made within forty-eight relevant Option Securities, as the case may be, either the (48i) hours after such default, this Agreement shall terminate. (b) If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the Securities of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 6, (iii) the Company shall have the right to postpone such Closing Time or the relevant Date of Delivery, as the case may be, for a period of not more than five (5) full business exceeding seven days in order to permit the Company to effect whatever any required changes in the Registration Statement, the Prospectus, General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, which may thereby be made necessary, and the Company agrees to promptly file term “Underwriter” includes any amendments to the Registration Statement or the Prospectus which may thereby be made necessary, and (ii) the respective numbers of the Securities to be purchased by the remaining Underwriters or person substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting an Underwriter of its liability to the Company or any other Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to under this Section 6 shall be without liability on the part of any non-defaulting Underwriters or the Company, (except in each case as provided in Sections 3(m), 5, 8 and 9), but nothing in this Agreement shall relieve a defaulting Underwriter of its liability, if any, to the Company for damages occasioned by its default hereunder)10.

Default by the Underwriter. (a) If any the Underwriter or Underwriters shall default in its or their obligations obligation to purchase any Security on Shares or Additional Shares hereunder at the First Closing Date and or the aggregate number of the Security which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of such Security to be purchased by all Underwriters on such Second Closing Date, as the other Underwriters shall be obligated severallycase may be, you may in proportion to their respective commitments hereunder, your discretion arrange for yourself or for another party or parties to purchase such Security Shares or Additional Shares, as the case may be, to which such defaulting Underwriter default relates on the terms contained herein. If you do not arrange for the purchase of such Shares or Underwriters agreed but failed Additional Shares, as the case may be, within one business day after the occurrence of a default relating to the Shares or the Additional Shares, as the case may be, then the Company shall be entitled to a further period of one business day within which to procure another party or parties satisfactory to you to purchase such Shares or Additional Shares, as the case may be, on such Closing Dateterms. If any Underwriter you or Underwriters shall so default and the aggregate number Company do not arrange for the purchase of the Security with respect Shares or the Additional Shares, as the case may be, to which such default or defaults occur is more than ten percent (10%) of the total number of such Security to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the remaining Underwriters and the Company for the purchase of such Security by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. (b) If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the Securities of a defaulting Underwriter or Underwriters on such Closing Date relate as provided in this Section 610(a), (i) this Agreement may be terminated by you or by the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order to permit the Company to effect whatever changes in the Registration Statement, the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly file any amendments to the Registration Statement or the Prospectus which may thereby be made necessary, and (ii) the respective numbers of the Securities to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or any other Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 6 shall be without liability on the part of any non-defaulting Underwriters or the Company, Company (except in each case as provided in that the provisions of Sections 3(m), 56, 8 and 9)10 shall survive termination) or the Underwriter, but nothing in this Agreement shall relieve a defaulting Underwriter of its liability, if any, liability to the Company for any damages occasioned by its default hereunder)hereunder or limit the remedies of the Company with respect to any such default. (b) If the Shares or Additional Shares to which such default or defaults relate are to be purchased by another party or parties as aforesaid, you or the Company shall have the right to postpone the First Closing Date or the Second Closing Date, as the case may be, for a reasonable period but not in any event more than seven days in order to effect whatever changes may thereby be made necessary to the Registration Statement or the Prospectus or in any other documents and arrangements with respect to the Shares or the Additional Shares, and the Company agrees to prepare and file promptly any amendment or supplement to the Registration Statement or the Prospectus which in the opinion of counsel for the Underwriter or counsel for the other purchasing Underwriter may thereby be made necessary.

Default by the Underwriter. (a) If any the Underwriter or Underwriters shall default in its or their obligations obligation to purchase any Security on the Closing Date and the aggregate number of the Security Securities which such defaulting Underwriter or Underwriters it has agreed but failed to purchase does not exceed ten percent (10%) of the total number of such Security to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, you may in your discretion arrange for you or another party or other parties to purchase such Security which such defaulting Underwriter or Underwriters agreed but failed to purchase Securities on such Closing Datethe terms contained herein. If any Underwriter or Underwriters shall so default and the aggregate number of the Security with respect to which within thirty-six hours after such default or defaults occur is more than ten percent (10%) of by the total number of such Security to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the remaining Underwriters and the Company Underwriter you do not arrange for the purchase of such Security by Securities, then the Issuers shall be entitled to a further period of thirty-six hours within which to procure another party or other persons are not made within forty-eight (48) hours after parties satisfactory to you to purchase such default, this Agreement shall terminate. (b) If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the Securities of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 6terms. In the event that, (i) within the Company respective prescribed periods, you notify the Issuers. that you have so arranged for the purchase of such Securities, or the Issuers notify you that they have so arranged for the purchase of such Securities, you or the Issuers shall have the right to postpone such Closing Date the Time of Delivery for a period of not more than five (5) full business days seven days, in order to permit the Company to effect whatever changes may thereby be made necessary in the Registration Statement, the Time of Sale Information, the Prospectus, or in any other documents or arrangements, and the Issuers agree to prepare promptly any amendments to the Registration Statement, the Time of Sale Information or the Prospectus which in your opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 10 with like effect as if such person had originally been a party to this Agreement with respect to such Securities; and (b) If, and after giving effect to any arrangements for the Company agrees to promptly file any amendments to the Registration Statement or the Prospectus which may thereby be made necessary, and (ii) the respective numbers purchase of the Securities to be purchased by of the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter by you and the Issuers as provided in subsection (a) above, the aggregate principal amount of its liability to Securities which remains unpurchased exceeds one-tenth of the Company or any other Underwriter for damages occasioned by its default hereunder. Any termination aggregate principal amount of all the Securities then this Agreement pursuant to this Section 6 shall be thereupon terminate, without liability on the part of any non-defaulting Underwriters the Issuers or the CompanyGuarantors, (except in each case for the expenses to be borne by the Issuers, the Guarantors and the Underwriter as provided in Sections 3(m), 5, 8 Section 6 hereof and 9), the indemnity and contribution agreements in Section 9 hereof; but nothing in this Agreement herein shall relieve a the defaulting Underwriter of from liability for its liability, if any, to the Company for damages occasioned by its default hereunder)default.

Default by the Underwriter. (a) If any the Underwriter or Underwriters shall default in its or their obligations obligation to purchase any Security on the Closing Date and the aggregate number of the Security Securities which such defaulting Underwriter or Underwriters it has agreed but failed to purchase does not exceed ten percent (10%) of the total number of such Security to be purchased by all Underwriters on such Closing Dateunder this Agreement, the Underwriter may in its discretion arrange for another party or other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, parties to purchase such Security which such defaulting Underwriter or Underwriters agreed but failed to purchase Securities on such Closing Datethe terms contained herein. If any Underwriter or Underwriters shall so default and the aggregate number of the Security with respect to which within thirty-six hours after such default or defaults occur is more than ten percent (10%) of by the total number of such Security to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to Underwriter the remaining Underwriters and the Company Underwriter does not arrange for the purchase of such Security by Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other persons are not made parties to purchase such Securities on such terms. In the event that, within forty-eight (48) hours after the respective prescribed periods, the Underwriter notifies the Company that it has so arranged for the purchase of such defaultSecurities, this Agreement shall terminate. (b) If or the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part Company notifies the Underwriter that it has so arranged for the purchase of such Securities, the Securities of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 6, (i) the Company shall have the right to postpone such the Closing Date Time for a period of not more than five (5) full business days seven days, in order to permit the Company to effect whatever changes may thereby be made necessary in the Registration Statement, Statement or the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to file promptly file any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Underwriter may thereby be made necessary. The term “Underwriter” as used in the Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement. (b) If, and after giving effect to any arrangements for the purchase of the Securities of the defaulting Underwriter by the Company, as provided in subsection (iia) above, the respective numbers number of Securities which remains unpurchased exceeds one-tenth of the number of the Securities to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or any other Underwriter for damages occasioned by its default hereunder. Any termination of on such date, then this Agreement pursuant to this Section 6 shall be thereupon terminate, without liability on the part of any non-defaulting Underwriters or the Company, (except in each case as for the expenses to be borne by the Company and the Underwriter provided in Section 4 hereof and the indemnity and contribution agreements in Sections 3(m), 5, 8 6 and 9), 7 hereof; but nothing in this Agreement herein shall relieve a the defaulting Underwriter of from liability for its liability, if any, to the Company for damages occasioned by its default hereunder)default.