Common use of Default by Underwriter Clause in Contracts

Default by Underwriter. If on the Closing Date or any Option Closing Date, if any, any Underwriter shall fail to purchase and pay for the portion of the Closing Securities or Option Securities, as the case may be, which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company), the Representative, or if the Representative is the defaulting Underwriter, the non-defaulting Underwriters, shall use their reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Closing Securities or Option Securities, as the case may be, which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the Representative shall not have procured such other Underwriters, or any others, to purchase the Closing Securities or Option Securities, as the case may be, agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate number of Closing Securities or Option Securities, as the case may be, with respect to which such default shall occur does not exceed 10% of the Closing Securities or Option Securities, as the case may be, covered hereby, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Closing Securities or Option Securities, as the case may be, which they are obligated to purchase hereunder, to purchase the Closing Securities or Option Securities, as the case may be, which such defaulting Underwriter or Underwriters failed to purchase, or (b) if the aggregate number of Closing Securities or Option Securities, as the case may be, with respect to which such default shall occur exceeds 10% of the Closing Securities or Option Securities, as the case may be, covered hereby, the Company or the Representative will have the right to terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Article VI hereof. In the event of a default by any Underwriter or Underwriters, as set forth in this Article V, the applicable Closing Date may be postponed for such period, not exceeding seven days, as the Representative, or if the Representative is the defaulting Underwriter, the non-defaulting Underwriters, may determine in order that the required changes in the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter” includes any Person substituted for a defaulting Underwriter. Any action taken under this Section shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

Default by Underwriter. If If, on the Closing Date or any Option Closing Date, if any, any Underwriter shall fail defaults in the performance of its obligations under this Agreement and the aggregate principal amount of Offered Certificates that such defaulting Underwriter agreed but failed to purchase and pay for the portion of the Closing Securities or Option Securities, as the case may be, which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company), the Representative, or if the Representative is the defaulting Underwriter, the non-defaulting Underwriters, shall use their reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Closing Securities or Option Securities, as the case may be, which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the Representative shall not have procured such other Underwriters, or any others, to purchase the Closing Securities or Option Securities, as the case may be, agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate number of Closing Securities or Option Securities, as the case may be, with respect to which such default shall occur does not exceed 10% of the Closing Securities or Option Securities, as total principal amount of Offered Certificates that the case may be, covered hereby, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Closing Securities or Option Securities, as the case may be, which they are obligated to purchase hereunder, to purchase on the Closing Securities or Option SecuritiesDate, as the case non-defaulting Underwriters may be, make arrangements for the purchase of the Offered Certificates which such defaulting Underwriter or Underwriters agreed but failed to purchase, or (b) if purchase by other persons satisfactory to the Company and the non-defaulting Underwriter. If any Underwriter so defaults and the aggregate number principal amount of Closing Securities or Option Securities, as the case may be, Offered Certificates with respect to which such default shall or defaults occur exceeds 10% of the total principal amount of Offered Certificates that the Underwriters are obligated to purchase on such Closing Securities or Option Securities, as Date and arrangements satisfactory to the case may be, covered hereby, non-defaulting Underwriter and the Company or for the Representative will have the right to terminate purchase of such Offered Certificates by other persons are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of the non-defaulting Underwriters Underwrites or of the Company, except that the Company except will continue to be liable for the payment of expenses and the indemnification provisions shall not terminate and shall remain in effect. As used in this Agreement, the term “Underwriters” includes any person substituted for an Underwriter under this Section. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the extent provided in Article VI hereofCompany or any non-defaulting Underwriter for damages caused by its default. In If other persons are obligated or agree to purchase the event Offered Certificates of a default by any Underwriter or Underwriters, as set forth in this Article V, the applicable Closing Date may be postponed for such period, not exceeding seven days, as the Representative, or if the Representative is the defaulting Underwriter, either the non-defaulting Underwriters, Underwriter or the Company may determine postpone the Closing Date for up to seven full Business Days in order to effect any changes that in the required changes opinion of the counsel for the Company or counsel for the non-defaulting Underwriters may be necessary in the Registration Statement and/or the Prospectus or in any other documents document or arrangements may be effected. The term “Underwriter” includes arrangement, and the Company agrees to promptly prepare any Person substituted for a defaulting Underwriter. Any action taken under this Section shall not relieve amendment or supplement to the Registration Statement and/or the Prospectus that effects any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreementchanges.