Common use of Default by One Clause in Contracts

Default by One. or More of the Underwriters If one or more of the Underwriters shall fail at the Closing Time or the relevant Date of Delivery, as the case may be, to purchase the Underwritten Securities which it or they are obligated to purchase under the applicable Terms Agreement (the "Defaulted Securities"), then Merrill Lynch shall have the right, w▇▇▇▇▇ ▇4 ▇▇▇▇s thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, Merrill Lynch shall not have complete▇ ▇▇▇▇ a▇▇▇▇▇ements within such 24-hour period, then: (a) if the number or aggregate principal amount, as the case may be, of Defaulted Securities does not exceed 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under such Terms Agreement bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the number or aggregate principal amount, as the case may be, of Defaulted Securities exceeds 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the Underwriters' exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after the Closing Time, the obligations of the Underwriters to purchase, and the Company to sell, such Option Underwritten Securities on

Default by One. or More of the Underwriters If one or more of the Underwriters shall fail at Underwriters. If, on either the Closing Time or the relevant Date Option Closing Time, any Underwriter defaults in the performance of Deliveryits obligations under this Agreement, the remaining non-defaulting Underwriters shall be obligated to purchase the Shares which the defaulting Underwriter agreed but failed to purchase on such Closing Time or Option Closing Time, as the case may be, in the respective proportions which the number of Firm Shares set forth opposite the name of each remaining non-defaulting Underwriter in Schedule I hereto bears to purchase the Underwritten Securities which it or they are total number of Firm Shares set forth opposite the names of all the remaining non-defaulting Underwriters in Schedule I hereto; provided, however, that the remaining non-defaulting Underwriters shall not be obligated to purchase under the applicable Terms Agreement (the "Defaulted Securities"), then Merrill Lynch shall have the right, w▇▇▇▇▇ ▇4 ▇▇▇▇s thereafter, to make arrangements for one or more any of the non-defaulting Underwriters, Shares on such Closing Time or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, Merrill Lynch shall not have complete▇ ▇▇▇▇ a▇▇▇▇▇ements within such 24-hour period, then: (a) if the number or aggregate principal amountOption Closing Time, as the case may be, if the total number of Defaulted Securities does not exceed 10 percent Shares which the defaulting Underwriter or Underwriters agreed but failed to purchase on such date exceeds 10% of the total number of Shares to be purchased on such Closing Time or aggregate principal amountOption Closing Time, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, the and any remaining non-defaulting Underwriters Underwriter shall not be obligated, severally and not jointly, obligated to purchase more than 110% of the full amount thereof in number of Shares which it agreed to purchase on such Closing Time. If the proportions that their respective underwriting obligations under such Terms Agreement bear to foregoing maximums are exceeded, the underwriting obligations of all remaining non-defaulting Underwriters, or (b) if those other underwriters satisfactory to the number Underwriters who so agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Shares to be purchased on such Closing Time or aggregate principal amountOption Closing Time, as the case may be, of Defaulted Securities exceeds 10 percent of . If the number remaining non-defaulting Underwriters or aggregate principal amount, as other underwriters satisfactory to the case may be, of Underwritten Securities Underwriters do not elect to be purchased purchase the Shares which the defaulting Underwriter or Underwriters agreed but failed to purchase on such date pursuant to such Terms AgreementClosing Time, such Terms this Agreement (or, with respect to the Underwriters' exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after the Closing Time, the obligations obligation of the Underwriters to purchase, and of the Company to sell, such the Option Underwritten Securities onShares) shall terminate without liability on the part of any non-defaulting Underwriter or the Company, except that the Company will continue to be liable for the payment of expenses to the extent set forth in Sections 4(g) and 4(h). As used in this Agreement, the term "Underwriter" includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule I hereto who, pursuant to this Section 13, purchases Shares which a defaulting Underwriter agreed but failed to purchase. If the foregoing correctly sets forth the understanding among the Company, the Operating Partnership and the Underwriters, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company, the Operating Partnership and the Underwriters. Very truly yours, HOME PROPERTIES OF NEW YORK, INC. By:/s/Anne M. McCormick ---------------------------------- Name: Anne M. McCormick Title: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇dent HOME PROPERTIES OF NEW YORK, L.P. By: Home Properties of New York, Inc., its general partner By:/s/Anne M. McCormick ---------------------------------- Name: Anne M. McCormick Title: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇dent ACCEPTED as of the date first above written: BEAR, STEARNS & CO. INC. By: /x/ Jacques De Saint Phalle -------------------------------- Name: Jacques De Saint Phalle Title: Senior Managing Director A.G. EDWARDS & SONS, INC. By: /x/ Bradford W. Koeneman -------------------------------- Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇an Title: Vice President BB&T CAPITAL MARK▇▇▇ ▇▇: /▇/ ▇▇▇▇▇ A. Tyler Jr. -------------------------------- Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. Title: Senior Vice President MCDONALD INVESTMENTS INC. By: /x/ Victor F. Faris -------------------------------- Name: Vict▇▇ ▇. ▇▇▇▇▇ Title: Managing Director STIFFEL, NICOLAUS & ▇▇▇▇▇▇▇, INCORPORATED By: /x/ T. Ri▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ -------------------------------- Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇rick IV Title: Senior Vice President U.S. BANCOR▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /x/ Louis Martine -------------------------------- ▇ame: Louis ▇▇▇▇▇▇▇ Title: Managing Director FIRST UNION SECURITI▇▇, ▇▇▇. ▇▇: /x/ William Ingram -------------------------------- Name: Will▇▇▇ ▇▇▇▇▇▇ Title: Managing Director SCHEDULE A SUBSIDIARIES Home Properties of New York, L.P. New York limited partnership 1% owned by Home Properties of New York, Inc. ("HME"); 62% owned by Home Properties Trust Home Properties Trust Maryland real estate trust 100% owned by HME Home Properties Management, Inc. Maryland Corp. Home Properties of New York, L.P. ("OP") owns the non-voting shares (95% of total shares)/Nelson and Norman ▇▇▇▇▇▇uts own the ▇▇▇▇▇▇ ▇▇ares (5% of total shares) Home Properties Resident Services, Inc. Maryland Corp. OP owns the non-voting shares (99% of total shares)/Nelson Leenhouts a▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇uts own the ▇▇▇▇▇▇ ▇▇ares (1% of total shares) NOTE: The operations of Home Properties Management, Inc. and Home Properties Resident Services, Inc. are not consolidated with those of the Company.

Default by One. or More of the Underwriters If one or more of the Underwriters Selling Stockholders or the --------------------------------------------------------- Company. (a) If a Selling Stockholder shall fail at the Closing Time or at a Date ------- of Delivery to sell and deliver the relevant Date number of Delivery, as the case may be, to purchase the Underwritten Securities which it or they are such Selling Stockholder is obligated to purchase under sell hereunder, and the applicable Terms Agreement (remaining Selling Stockholders do not exercise the "Defaulted Securities")right hereby granted to increase, pro rata or otherwise, the number of Securities to be sold by them hereunder to the total number to be sold by all Selling Stockholders as set forth in Schedule B hereto, then Merrill Lynch shall have the rightUnderwriters may, w▇▇▇▇▇ ▇4 ▇▇▇▇s thereafterat the option of the Representatives, by notice from the Representatives to make arrangements for one or more of the Company and the non-defaulting UnderwritersSelling Stockholders, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, Merrill Lynch shall not have complete▇ ▇▇▇▇ a▇▇▇▇▇ements within such 24-hour period, then: either (a) if terminate this Agreement without any liability on the number fault of any non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or aggregate principal amount, as (b) elect to purchase the case may be, of Defaulted Securities does not exceed 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, which the non-defaulting Underwriters Selling Stockholders and the Company have agreed to sell hereunder. No action taken pursuant to this Section 11 shall be obligatedrelieve any Selling Stockholder so defaulting from liability, severally if any, in respect of such default. In the event of a default by any Selling Stockholder as referred to in this Section 11, each of the Representatives, the Company and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under such Terms Agreement bear to the underwriting obligations of all non-defaulting Underwriters, Selling Stockholders shall have the right to postpone Closing Time or Date of Delivery for a period not exceeding seven days in order to effect any required change in the Registration Statement or Prospectus or in any other documents or arrangements. (b) if If the number Company shall fail at Closing Time or aggregate principal amount, as at the case may be, of Defaulted Securities exceeds 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the Underwriters' exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after to sell the Closing Timenumber of Securities that it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the obligations part of any non- defaulting party; provided, however, that the Underwriters provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant to purchase, and this Section shall relieve the Company to sellfrom liability, if any, in respect of such Option Underwritten Securities ondefault.

Default by One. or More of the Underwriters --- ------------------------------------------ If one or more of the Underwriters shall fail at the Closing Time or the relevant Date of Delivery, as the case may be, to purchase the Underwritten Securities which that it or they are obligated to purchase under the applicable Terms this Agreement (the "Defaulted Securities"), then Merrill Lynch the Representatives shall have the right, w▇▇▇▇▇ ▇4 ▇▇▇▇s within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, Merrill Lynch the Representatives shall not have complete▇ ▇▇▇▇ a▇▇▇▇▇ements completed such arrangements within such 24-hour period, then: (a) if the number or aggregate principal amount, as the case may be, of Defaulted Securities does not exceed 10 percent 10% of the number or aggregate principal amount, as amount of the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreementhereunder, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under such Terms Agreement hereunder bear to the underwriting obligations of all non-non- defaulting Underwriters, or or (b) if the number or aggregate principal amount, as the case may be, of Defaulted Securities exceeds 10 percent 10% of the number or aggregate principal amount, as amount of the case may be, of Underwritten Securities to be purchased hereunder, this Agreement shall terminate without liability on such date the part of any non- defaulting Underwriter. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default. In the event of any such Terms default which does not result in a termination of this Agreement, such Terms Agreement (or, with respect either the Representatives or the Company shall have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Underwriters' exercise of Registration Statement or Prospectus or in any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after the Closing Timeother documents or arrangements. As used herein, the obligations of the Underwriters to purchase, and the Company to sell, such Option Underwritten Securities onterm "Underwriter" includes any person substituted for an Underwriter under this Section 10.

Default by One. or More of the Underwriters If one or more of the Underwriters Selling ------------------------------------- Shareholders or the Company. (a) If a Selling Shareholder shall --------------------------- fail at the Closing Time to sell and deliver the number of Securities which such Selling Shareholder or Selling Shareholders are obligated to sell hereunder, and the relevant Date Company does not exercise the right granted below to increase the number of DeliverySecurities to be sold by it hereunder by that number of Securities that are not to be sold and delivered by the Selling Shareholder(s), as then the case may beUnderwriters may, at option of the Representatives, by notice from the Representatives to the Company and the non-defaulting Selling Shareholders, either (a) terminate this Agreement without any liability on the fault of any non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to purchase the Underwritten Securities which it or they are obligated the non-defaulting Selling Shareholders and the Company have agreed to purchase under sell hereunder. No action taken pursuant to this Section 11 shall relieve any Selling Shareholder so defaulting from liability, if any, in respect of such default. In the applicable Terms Agreement event the aggregate number of Securities which such Selling Shareholder(s) have failed to sell and deliver (the "Defaulted Securities")) does not exceed 10% of the number of Securities to be sold by all Selling Shareholders, then Merrill Lynch the Company shall have the rightright (but not the obligation) to increase the number of Securities to be sold by it by an amount equal to the number of Defaulted Securities, w▇▇▇▇▇ ▇4 ▇▇▇▇s thereaftersuch right to be exercisable within 24 hours of the Closing Time. In the event of a default by any Selling Shareholder as referred to in this Section 11, to make arrangements for one or more each of the Representatives, the Company and the non-defaulting Underwriters, Selling Shareholders shall have the right to postpone Closing Time or Date of Delivery for a period not exceeding seven days in order to effect any required change in the Registration Statement or Prospectus or in any other underwritersdocuments or arrangements. (b) If the Company shall fail at Closing Time or at the Date of Delivery to sell the number of Securities that it is obligated to sell hereunder, to purchase all, but not less than all, then this Agreement shall terminate without any liability on the part of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forthany non-defaulting party; ifprovided, however, Merrill Lynch that the provisions of Sections 1, 4, 6, 7 and 8 shall not have complete▇ ▇▇▇▇ a▇▇▇▇▇ements within such 24-hour period, then: (a) if the number or aggregate principal amount, as the case may be, of Defaulted Securities does not exceed 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date remain in full force and effect. No action taken pursuant to such Terms Agreement, the non-defaulting Underwriters this Section shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under such Terms Agreement bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the number or aggregate principal amount, as the case may be, of Defaulted Securities exceeds 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the Underwriters' exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after the Closing Time, the obligations of the Underwriters to purchase, and relieve the Company to sellfrom liability, if any, in respect of such Option Underwritten Securities ondefault.

Default by One. or More of the Underwriters Selling Stockholders or the ---------------------------------------------------------- Company. (a) If one a Selling Stockholder shall fail at Closing Time or more at a Date of ------- Delivery to sell and deliver the number of Securities which such Selling Stockholder is obligated to sell hereunder, and the remaining Selling Stockholders do not exercise the right hereby granted to increase, pro rata or otherwise, the number of Securities to be sold by them hereunder to the total number to be sold by all Selling Stockholders as set forth in Schedule B hereto, then the International Managers ---------- may, at option of the Underwriters Lead Managers, by notice from the Lead Managers to the Company and the non-defaulting Selling Stockholders, either (i) terminate this Agreement without any liability on the fault of any non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (ii) elect to purchase the Securities which the non-defaulting Selling Stockholders and the Company have agreed to sell hereunder. No action taken pursuant to this Section 11 shall relieve any Selling Stockholder so defaulting from liability, if any, in respect of such default. In the event of a default by any Selling Stockholder as referred to in this Section 11, each of the Lead Managers, the Company and the non-defaulting Selling Stockholders shall have the right to postpone the Closing Time or Date of Delivery for a period not exceeding seven days in order to effect any required change in the Registration Statement or Prospectuses or in any other documents or arrangements. (b) If the Company shall fail at the Closing Time or to sell the relevant Date number of Delivery, as the case may be, to purchase the Underwritten Securities which that it or they are is obligated to purchase under the applicable Terms Agreement (the "Defaulted Securities")sell hereunder, then Merrill Lynch this Agreement shall have terminate without any liability on the right, w▇▇▇▇▇ ▇4 ▇▇▇▇s thereafter, to make arrangements for one or more part of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forthnondefaulting party; ifprovided, however, Merrill Lynch that the provisions of Sections 1, 4, 6, 7 and 8 shall not have complete▇ ▇▇▇▇ a▇▇▇▇▇ements within such 24-hour period, then: (a) if the number or aggregate principal amount, as the case may be, of Defaulted Securities does not exceed 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date remain in full force and effect. No action taken pursuant to such Terms Agreement, the non-defaulting Underwriters this Section shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under such Terms Agreement bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the number or aggregate principal amount, as the case may be, of Defaulted Securities exceeds 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the Underwriters' exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after the Closing Time, the obligations of the Underwriters to purchase, and relieve the Company to sellfrom liability, if any, in respect of such Option Underwritten Securities ondefault.

Default by One. or More more of the Underwriters Selling Shareholders or the ---------- -------------------------------------------------------- Company. -------- (a) If one or more of the Underwriters Selling Shareholders shall fail at the Closing Time to sell and deliver the number of Securities which it or they, as the case may be, are obligated to sell under this Agreement on such date, and the remaining Selling Shareholders do not exercise the right hereby granted to increase, pro rata or otherwise, the number of Securities to be sold by them hereunder on such date to the total number of shares to be sold by all Selling Shareholders (including such defaulting Selling Shareholder or Selling Shareholders, as the case may be) on such date, then the International Managers may, at the option of the Lead Managers, by notice from the Lead Managers to the Company and the non-defaulting Selling Shareholders, either (a) terminate this Agreement without any liability on the part of any non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8 hereof shall survive such termination and remain in full force and effect, or (b) elect to purchase the Securities which the non-defaulting Selling Shareholders have agreed to sell hereunder on such date. No action taken pursuant to this Section 11 shall relieve any Selling Shareholder so defaulting from liability, if any, in respect of such default. (b) If the Company shall fail at a Date of Delivery to sell and deliver the number of Securities that it is obligated to sell under this Agreement on such date, then the International Managers may, at the option of the Lead Managers, by notice from the Lead Managers to the Company and the Selling Shareholders, terminate this Agreement or, in the case of any Date of Delivery which occurs after the Closing Time, terminate the obligations of the International Managers to purchase the International Option Securities to be purchased on such Date of Delivery, in each case without any liability on the fault of any non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8 hereof shall survive any such termination of this Agreement and remain in full force and effect. No action taken pursuant to this Section 11 shall relieve the Company from liability, if any, in respect of such default. In the event of a default by any Selling Shareholder or the Company referred to in this Section 11 which does not result in the termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a termination of the obligations of the International Managers to purchase the relevant International Option Securities, as the case may be, either the Lead Managers or the Company shall have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to purchase effect any required change in the Underwritten Securities which it Registration Statement or they are obligated to purchase under the applicable Terms Agreement (the "Defaulted Securities"), then Merrill Lynch shall have the right, w▇▇▇▇▇ ▇4 ▇▇▇▇s thereafter, to make arrangements for one Prospectuses or more of the non-defaulting Underwriters, or in any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, Merrill Lynch shall not have complete▇ ▇▇▇▇ a▇▇▇▇▇ements within such 24-hour period, then: (a) if the number documents or aggregate principal amount, as the case may be, of Defaulted Securities does not exceed 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under such Terms Agreement bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the number or aggregate principal amount, as the case may be, of Defaulted Securities exceeds 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the Underwriters' exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after the Closing Time, the obligations of the Underwriters to purchase, and the Company to sell, such Option Underwritten Securities onarrangements.

Default by One. or More of the Underwriters If one or more of the Underwriters Selling Shareholders or the --------------------------------------------------------- Company. (a) If a Selling Shareholder shall fail at the Closing Time or the relevant at a Date of Delivery------- Delivery to sell and deliver the number of Securities which such Selling Shareholder or Selling Shareholders are obligated to sell hereunder, and the remaining Selling Shareholders do not exercise the right hereby granted to increase, pro rata or otherwise, the number of Securities to be sold by them hereunder to the total number to be sold by all Selling Shareholders as set forth in Schedule B hereto, then the case may beUnderwriters may, at option of the Representative, by notice from the Representative to the Company and the non- defaulting Selling Shareholders, either (a) terminate this Agreement without any liability on the fault of any non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to purchase the Underwritten Securities which it or they are obligated to purchase under the applicable Terms Agreement (the "Defaulted Securities"), then Merrill Lynch shall have the right, w▇▇▇▇▇ ▇4 ▇▇▇▇s thereafter, to make arrangements for one or more of the non-defaulting UnderwritersSelling Shareholders and the Company have agreed to sell hereunder. No action taken pursuant to this Section 11 shall relieve any Selling Shareholder so defaulting from liability, or if any, in respect of such default. In the event of a default by any other underwritersSelling Shareholder as referred to in this Section 11, to purchase all, but not less than all, each of the Defaulted Securities in such amounts as may be agreed upon Representative, the Company and upon the terms herein set forth; if, however, Merrill Lynch shall not have complete▇ ▇▇▇▇ a▇▇▇▇▇ements within such 24-hour period, then: (a) if the number or aggregate principal amount, as the case may be, of Defaulted Securities does not exceed 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, the non-defaulting Underwriters Selling Shareholders shall be obligated, severally and have the right to postpone Closing Time or Date of Delivery for a period not jointly, exceeding seven days in order to purchase the full amount thereof effect any required change in the proportions that their respective underwriting obligations under such Terms Agreement bear to the underwriting obligations of all non-defaulting Underwriters, Registration Statement or Prospectus or in any other documents or arrangements. (b) if If the number Company shall fail at Closing Time or aggregate principal amount, as at the case may be, of Defaulted Securities exceeds 10 percent of the number or aggregate principal amount, as the case may be, of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the Underwriters' exercise of any applicable over-allotment option for the purchase of Option Underwritten Securities on a Date of Delivery after to sell the Closing Timenumber of Securities that it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the obligations part of any nondefaulting party; provided, however, that the Underwriters provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant to purchase, and this Section shall relieve the Company to sellfrom liability, if any, in respect of such Option Underwritten Securities ondefault.