Common use of Default Purchase Right Clause in Contracts

Default Purchase Right. (A) If and to the extent that any of the Backstop Purchasers does not fully and timely satisfy its obligations in respect of its Purchase Commitment as required under Section 2(a)(i) (a “Backstop Purchaser Default” and each such Backstop Purchaser, a “Defaulting Backstop Purchaser”), then each of the remaining Backstop Purchasers (the “Non- Defaulting Backstop Purchasers”) shall have the right (the “Default Purchase Right”) but not the obligation, to purchase on the Effective Date all or a portion of the shares that were to be purchased by such Defaulting Backstop Purchaser (the “Default Shares”) at a price per share equal to the applicable Purchase Price. To the extent that the Non-Defaulting Backstop Purchasers (in the aggregate) desire to purchase more than the total number of Default Shares, such Default Shares shall be allocated between the Non-Defaulting Backstop Purchasers pro rata, based on their respective Commitment Percentages. In the event of a Backstop Purchaser Default, the consummation of the Rights Offering and the Effective Date will be deferred for a period of time, not to exceed 30 days, in order to determine any reallocation of the Purchase Commitments and, if necessary, replace the commitment of the Defaulting Backstop Purchaser. As soon as practicable after a Backstop Purchaser Default and in any event within one Business Day following such Backstop Purchaser Default, the Company will send a notice (in accordance with the notice provisions set forth in Section 11) to each Non-Defaulting Backstop Purchaser, specifying the number of Default Shares. The Non-Defaulting Backstop Purchasers will have 15 days from receipt of such notice to elect to exercise the Default Purchase Right by notifying the Company of its or their election to purchase an aggregate of 100% of the Default Shares or find a third-party Reasonably Satisfactory to the Backstop Purchasers not then in default to replace the commitment of the Defaulting Backstop Purchaser. If at the conclusion of such 15 day period, the Non-Defaulting Backstop Purchasers have not elected to exercise the Default Purchase Right in its entirety or not found a third-party to replace the commitment of the Defaulting Backstop Purchaser, the Company will have an additional 15 days to find a third-party Reasonably Satisfactory to the Backstop Purchasers to replace any remaining commitment of the Defaulting Backstop Purchaser (after taking into account any shares acquired pursuant to the Default Purchase Right or by a third-party identified by the Backstop Purchasers). If at the conclusion of such 15 day period, the Company has been unable to find a third-party Reasonably Satisfactory to the Backstop Purchasers to replace the remaining commitment of the Defaulting Backstop Purchaser, then the Company may terminate this Agreement and each Non-Defaulting Backstop Purchaser may terminate its respective obligations under this Agreement. (B) Notwithstanding anything to the contrary in this Section 2(a)(ii), the parties agree that any Defaulting Backstop Purchaser will be liable to the Company and the Non-Defaulting Backstop Purchasers for the consequences of its breach and that the Company and the Non-Defaulting Backstop Purchasers can enforce their rights pursuant to Section 19 immediately upon such Defaulting Backstop Purchaser’s failure to fully and timely satisfy its obligations in respect of its Purchase Commitment as required under Section 2(a)(i).

Default Purchase Right. (A) If and to the extent that any of the Backstop Purchasers does one Investor or multiple Investors do not fully and timely satisfy its or their obligations in respect of its Purchase the Backstop Commitment as required under Section 2(a)(i(2)(a)(i) (a an “Backstop Purchaser Investor Default” ”, and each such Backstop PurchaserInvestor, a “Defaulting Backstop PurchaserInvestor”), then each of the remaining Backstop Purchasers Investors (the “Non- Non-Defaulting Backstop PurchasersInvestors”) shall have the right (the “Default Purchase Right”) ), but not the obligation, to purchase on the Effective Date all or a portion of the shares that were to be purchased by such Defaulting Backstop Purchaser (the “Default Shares”) at a price per share equal to the applicable Purchase Price. To , up to a number of Shares equal to the extent that product of (A) the quotient determined by dividing the Commitment Percentage of such Non- Defaulting Investor by the aggregate Commitment Percentage owned by all Non-Defaulting Backstop Purchasers Investors electing to exercise their Default Purchase Right and (in B) the aggregate) desire to purchase more than the total number of Shares not purchased by all Defaulting Investors (“Default Shares, such Default Shares shall be allocated between the Non-Defaulting Backstop Purchasers pro rata, based on their respective Commitment Percentages. In the event of a Backstop Purchaser Default, the consummation of the Rights Offering and the Effective Date will be deferred for a period of time, not to exceed 30 days, in order to determine any reallocation of the Purchase Commitments and, if necessary, replace the commitment of the Defaulting Backstop Purchaser”). As soon as practicable after a Backstop Purchaser Default and in any event within one Business Day following such Backstop Purchaser an Investor Default, the Company will send a notice (in accordance with the notice provisions set forth in Section 11) to each Non-Defaulting Backstop PurchaserInvestor, specifying the number of Shares subject to the Default SharesPurchase Right. The Each Non-Defaulting Backstop Purchasers Investor will have 15 days 2 Business Days from receipt of such notice to elect to exercise the Default Purchase Right by notifying the Company in writing of its or their election and specifying the maximum number of Default Shares (up to purchase an aggregate of the 100% of the Default Shares or find a third-party Reasonably Satisfactory Shares) that it is electing to the Backstop Purchasers not then in default to replace the commitment of the Defaulting Backstop Purchaserpurchase. If at any Non-Defaulting Investor wishes to purchase less than all the conclusion of Default Shares such 15 day periodNon-Defaulting Investor is entitled to purchase in accordance with the preceding sentence, the Default Shares shall be allocated among the Non-Defaulting Backstop Purchasers have not elected Investors who wish to exercise the purchase such available Default Purchase Right in its entirety or not found Shares on a third-party pro rata basis according to replace the commitment of the Defaulting Backstop Purchaser, the Company will have an additional 15 days to find a third-party Reasonably Satisfactory to the Backstop Purchasers to replace any remaining commitment of the Defaulting Backstop Purchaser (after taking into account any shares acquired pursuant to the Default Purchase Right or by a third-party identified by the Backstop Purchasers). If at the conclusion of such 15 day period, the Company has been unable to find a third-party Reasonably Satisfactory to the Backstop Purchasers to replace the remaining commitment of the Defaulting Backstop Purchaser, then the Company may terminate this Agreement and each Non-Defaulting Backstop Purchaser may terminate its respective obligations under this Agreement. (B) Notwithstanding anything to Investor’s Commitment Percentage. If any Non-Defaulting Investors exercise the contrary in this Section 2(a)(ii)Default Right, the parties agree Commitment Percentage for the Defaulting Investor shall be reduced by the portion of the Backstop Commitment that any such Defaulting Backstop Purchaser will be liable Investor has failed to fully satisfy and the Company and Commitment Percentage for the Non-Defaulting Backstop Purchasers for Investors participating in the consequences Default Right shall be adjusted accordingly to reflect their respective portion of its breach and that the Company and the Non-Defaulting Backstop Purchasers can enforce their rights pursuant to Section 19 immediately upon such Defaulting Backstop Purchaser’s failure to fully and timely satisfy its obligations in respect of its Purchase Commitment as required under Section 2(a)(i)Default Shares.

Default Purchase Right. (A) If and to the extent that any of the Backstop Purchasers does not fully and timely satisfy its obligations in respect of its Purchase Commitment as required under Section 2(a)(i) (a “Backstop Purchaser Default” and each such Backstop Purchaser, a “Defaulting Backstop Purchaser”), then each of the remaining Backstop Purchasers (the “Non- Non-Defaulting Backstop Purchasers”) shall have the right (the “Default Purchase Right”) but not the obligation, to purchase on the Effective Date all or a portion of the shares that were to be purchased by such Defaulting Backstop Purchaser (the “Default Shares”) at a price per share equal to the applicable Purchase Price. To the extent that the Non-Defaulting Backstop Purchasers (in the aggregate) desire to purchase more than the total number of Default Shares, such Default Shares shall be allocated between the Non-Defaulting Backstop Purchasers pro rata, based on their respective Commitment Percentages. In the event of a Backstop Purchaser Default, the consummation of the Rights Offering and the Effective Date will be deferred for a period of time, not to exceed 30 days, in order to determine any reallocation of the Purchase Commitments and, if necessary, replace the commitment of the Defaulting Backstop Purchaser. As soon as practicable after a Backstop Purchaser Default and in any event within one Business Day following such Backstop Purchaser Default, the Company will send a notice (in accordance with the notice provisions set forth in Section 11) to each Non-Defaulting Backstop Purchaser, specifying the number of Default Shares. The Non-Defaulting Backstop Purchasers will have 15 days from receipt of such notice to elect to exercise the Default Purchase Right by notifying the Company of its or their election to purchase an aggregate of 100% of the Default Shares or find a third-party Reasonably Satisfactory to the Backstop Purchasers not then in default to replace the commitment of the Defaulting Backstop Purchaser. If at the conclusion of such 15 day period, the Non-Defaulting Backstop Purchasers have not elected to exercise the Default Purchase Right in its entirety or not found a third-party to replace the commitment of the Defaulting Backstop Purchaser, the Company will have an additional 15 days to find a third-party Reasonably Satisfactory to the Backstop Purchasers to replace any remaining commitment of the Defaulting Backstop Purchaser (after taking into account any shares acquired pursuant to the Default Purchase Right or by a third-party identified by the Backstop Purchasers). If at the conclusion of such 15 day period, the Company has been unable to find a third-party Reasonably Satisfactory to the Backstop Purchasers to replace the remaining commitment of the Defaulting Backstop Purchaser, then the Company may terminate this Agreement and each Non-Defaulting Backstop Purchaser may terminate its respective obligations under this Agreement. (B) Notwithstanding anything to the contrary in this Section 2(a)(ii), the parties agree that any Defaulting Backstop Purchaser will be liable to the Company and the Non-Defaulting Backstop Purchasers for the consequences of its breach and that the Company and the Non-Defaulting Backstop Purchasers can enforce their rights pursuant to Section 19 immediately upon such Defaulting Backstop Purchaser’s failure to fully and timely satisfy its obligations in respect of its Purchase Commitment as required under Section 2(a)(i).

Default Purchase Right. (Ai) If and to the extent that any of the Backstop Purchasers Party does not fully and timely satisfy its obligations in respect of obligation to purchase its Purchase Commitment as required under Section 2(a)(i) respective Unsubscribed Shares or its respective EH Default Shares (a “"Backstop Purchaser Party Default” " and each such Backstop PurchaserParty, a “"Defaulting Backstop Purchaser”Party"), then each of the remaining Backstop Purchasers Parties (the “Non- "Non-Defaulting Backstop Purchasers”Parties") shall have the right (the “"Default Purchase Right”) "), but not the obligation, to purchase on the Effective Date all or a portion of the shares that were to be purchased by such Defaulting Backstop Purchaser Party's Unsubscribed Shares and EH Default Shares (the “"BP Default Shares”") at a price per share Offered Share equal to the applicable Purchase Price. To the extent that the Non-Defaulting Backstop Purchasers Parties (in the aggregate) desire to purchase more than the total number of BP Default Shares, such BP Default Shares shall be allocated between among the Non-Defaulting Backstop Purchasers Parties electing to purchase BP Default Shares pro rata, based on their respective Commitment PercentagesBackstop Percentage (as set forth on Annex I). Within one (1) Business Day of a Backstop Party Default, Syms will send a notice to each Non-Defaulting Backstop Party, specifying the number of BP Default Shares. No later than one (1) Business Day after the receipt of such notice, each Non-Defaulting Backstop Party may exercise the Default Purchase Right by notifying Syms of its election to exercise the Default Purchase Right and specifying the maximum number of BP Default Shares (up to 100% of the BP Default Shares) that it is electing to purchase. In the event of a Backstop Purchaser Party Default, the consummation of the Rights Offering and the Effective Date will be deferred for a period of time, not to exceed 30 days, in order five (5) Business Days unless a later date is otherwise agreed to determine any reallocation of the Purchase Commitments and, if necessary, replace the commitment of the Defaulting Backstop Purchaser. As soon as practicable after a Backstop Purchaser Default and in any event within one Business Day following such Backstop Purchaser Defaultby Syms, the Company will send a notice (in accordance with the notice provisions set forth in Section 11) to each Non-Defaulting Backstop PurchaserParties and Xx. Xxxx, specifying the number of Default Shares. The Non-Defaulting Backstop Purchasers will have 15 days from receipt of such notice to elect to exercise the Default Purchase Right by notifying the Company of its or their election to purchase an aggregate of 100% of the Default Shares or find a third-party Reasonably Satisfactory to the Backstop Purchasers not then in default order to replace the commitment of the Defaulting Backstop PurchaserParty. If at the conclusion of such 15 day period, the Non-Defaulting Backstop Purchasers Parties have not elected to exercise the Default Purchase Right in its entirety or not found a third-party to acquire all of the BP Default Shares, and Syms is otherwise unable to replace the commitment of the Defaulting Backstop PurchaserParty, the Company will have an additional 15 days to find a third-party Reasonably Satisfactory to the Backstop Purchasers to replace any remaining commitment then Syms shall provide written notice of the same to Xx. Xxxx and the Trusts (an "Adjustment Notice"), which Adjustment Notice shall provide a statement setting forth the total amount of Offered Shares subscribed for in the Rights Offering (including the total amount of BP Default Shares, if any, that the Non-Defaulting Backstop Purchaser Parties have agreed to purchase), and the amount of BP Default Shares that remain, if any. (after taking into account ii) In addition to any shares acquired pursuant to the Default Purchase Right or by a third-party identified by the Backstop Purchasersrights provided in Section 2.1(b)(i). If at the conclusion of such 15 day period, the Company has been unable to find a third-party Reasonably Satisfactory to the Backstop Purchasers to replace the remaining commitment of the Defaulting Backstop Purchaser, then the Company may terminate this Agreement and each Non-Defaulting Backstop Purchaser may terminate its respective obligations under this Agreement. Party shall have the right (Bthe "Additional Default Purchase Right"), but not the obligation, to purchase from a Defaulting Backstop Party such Defaulting Backstop Party's Initial Shares (as defined in the Rights Offering Procedures) Notwithstanding anything (the "Additional Default Shares"), at a price per Offered Share equal to the contrary in Purchase Price, and each Defaulting Backstop Party shall be obligated to sell all such Additional Default Shares consistent with the terms of this Section 2(a)(ii2.1(b)(ii). Within two (2) Business Days of a Backstop Party Default, the parties agree that any Syms will send a notice to each Non-Defaulting Backstop Purchaser will be liable Party, specifying the number of Additional Default Shares issued to each Defaulting Backstop Party and no Defaulting Backstop Party may transfer any of its Initial Shares (as defined in the Company Rights Offering Procedures) until the provisions of this Section 2.1(b)(ii) have been complied with. Each Non-Defaulting Backstop Party may exercise the Additional Default Purchase Right by notifying Syms, no later than five (5) Business Days after receipt of the notice from Syms of the availability of the Additional Default Purchase Right, of its election to exercise and specifying the maximum number of Additional Default Shares (up to 100% of the Additional Default Shares) that it is electing to purchase. To the extent that the Non-Defaulting Backstop Purchasers for Parties (in the consequences aggregate) desire to purchase more than the total number of its breach and that the Company and Additional Default Shares, such Additional Default Shares shall be allocated among the Non-Defaulting Backstop Purchasers can enforce Parties electing to purchase Additional Default Shares pro rata, based on their rights pursuant to Section 19 immediately upon such respective Backstop Percentages (as set forth on Annex I). The closing of the sale of the Additional Default Shares from the Defaulting Backstop Purchaser’s failure Party to fully the Non-Defaulting Backstop Parties shall occur at a time and timely place designated by Syms, which shall be no later than two (2) Business Days after the exercise of the Additional Default Purchase Right. (iii) The parties agree that (A) any Backstop Party that fails to purchase its respective Pro Rata Share of the Offered Shares and any Defaulting Backstop Party will be liable to Syms, Xx. Xxxx, the Trusts and, if applicable, the Non-Defaulting Backstop Parties for any damages occasioned by its breach, including all costs of collection and attorneys' fees, and that Syms, Xx. Xxxx, the Trusts and, if applicable, the Non-Defaulting Backstop Parties shall have all rights and recourse available at law and equity, including the right to seek specific performance as provided in Section 9.10 hereof; and (B) any potential liability of a Backstop Party hereunder to Syms, Xx. Xxxx, the Xxxxx Xxxxx Living Trust, dated February 14, 2003 and/or the Xxxxx Xxxx Revocable Living Trust, dated January 12, 1990, as amended, hereunder shall terminate upon a Backstop Party's delivery to the Subscription Agent of the funds sufficient to satisfy its obligations obligation to purchase its respective Pro Rata Share of the Offered Shares, its Unsubscribed Shares or its respective EH Default Shares, provided such delivery of funds is made prior to a default and in respect accordance with the terms of its Purchase Commitment as required under Section 2(a)(i)the Rights Offering.