Common use of Default in Performance by Underwriter Clause in Contracts

Default in Performance by Underwriter. (a) If any Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters shall be obligated severally to purchase the Underwritten Securities which the defaulting Underwriter agreed but failed to purchase in the respective proportions which the principal amount or number, as the case may be, of Underwritten Securities set forth in the applicable column in Schedule II to the Terms Agreement to be purchased by each remaining non-defaulting Underwriter set forth in such column bears to the aggregate principal amount or number, as the case may be, of Underwritten Securities set forth in such column to be purchased by all the remaining non-defaulting Underwriters; provided that the remaining non-defaulting Underwriters shall not be obligated to purchase, respectively, any Underwritten Debt Securities, Underwritten Warrants or Underwritten Units that constitute Underwritten Securities if Annex A - 3 12 the aggregate principal amount or number, as the case may be, of, respectively, such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units which the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds 10% of the total principal amount or number, as the case may be, of, respectively, such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units. If the foregoing maximum is exceeded, the remaining non-defaulting Underwriters, or other underwriters satisfactory to the Representative, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Underwritten Securities. (b) If the remaining non-defaulting Underwriters or other underwriters satisfactory to the Representative do not elect pursuant to the last sentence of the above paragraph to purchase the aggregate principal amount or number of Underwritten Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase that exceeds 10% of the total principal amount or number, as the case may be, of such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units, this Agreement with respect to such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units, as the case may be, shall terminate without liability on the part of any non-defaulting Underwriter or the Corporation. (c) Nothing contained in this Section 5 shall relieve a defaulting Underwriter of any liability it may have to the Corporation and any non-defaulting Underwriter for damages caused by its default. If other underwriters are obligated or agree to purchase the Underwritten Securities of a defaulting Underwriter, either the Representative or the Corporation may postpone the Delivery Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Corporation or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement.

Default in Performance by Underwriter. (a) If any Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters shall be obligated severally to purchase the Underwritten Securities which the defaulting Underwriter agreed but failed to purchase in the respective proportions which the principal amount or number, as the case may be, of Underwritten Securities set forth in the applicable column in Schedule II to the Terms Agreement to be purchased by each remaining non-defaulting Underwriter set forth in such column bears to the aggregate principal amount or number, as the case may be, of Underwritten Securities set forth in such column to be purchased by all the remaining non-defaulting Underwriters; provided that the remaining non-defaulting Underwriters shall not be obligated to purchase, respectively, any Underwritten Debt Securities, Underwritten Warrants or Underwritten Units that constitute Underwritten Securities if Annex A - 3 12 the aggregate principal amount or number, as the case may be, of, respectively, such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units which the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds 10% of the total principal amount or number, as the case may be, of, respectively, such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units. If the foregoing maximum is exceeded, the remaining non-defaulting Underwriters, or other underwriters satisfactory to the Representative, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Underwritten Securities. (b) If the remaining non-defaulting Underwriters or other underwriters satisfactory to the Representative do not elect pursuant to the last sentence of the above paragraph to purchase the aggregate principal amount or number of Underwritten Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase that exceeds 10% of the total principal amount or number, as the case may be, of such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units, this Agreement with respect to such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units, as the case may be, shall terminate without liability on the part of any non-defaulting Underwriter or the Corporation. (c) Nothing contained in this Section 5 shall relieve a defaulting Underwriter of any liability it may have to the Corporation and any non-defaulting Underwriter for damages caused by its default. If other underwriters are obligated or agree to purchase the Underwritten Securities of a defaulting Underwriter, either the Representative or the Corporation may postpone the Delivery Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Corporation or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement.

Default in Performance by Underwriter. (a) If any Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters shall be obligated severally to purchase the Underwritten Securities which the defaulting Underwriter agreed but failed to purchase in the respective proportions which the principal amount or number, as the case may be, of Underwritten Securities set forth in the applicable column in Schedule II to the Terms Agreement to be purchased by each remaining non-defaulting Underwriter set forth in such column bears to the aggregate principal amount or number, as the case may be, of Underwritten Securities set forth in such column to be purchased by all the remaining non-defaulting Underwriters; provided that the remaining non-defaulting Underwriters shall not be obligated to purchase, respectively, any Underwritten Debt Securities, Underwritten Warrants or Underwritten Units that constitute Underwritten Securities if Annex A - 3 12 the aggregate principal amount or number, as the case may be, of, respectively, such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units which the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds 10% of the total principal amount or number, as the case may be, of, respectively, such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units. If the foregoing maximum is exceeded, the remaining non-defaulting Underwriters, or other underwriters satisfactory to the Representative, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Underwritten Securities. (b) If the remaining non-defaulting Underwriters or other underwriters satisfactory to the Representative do not elect pursuant to the last sentence of the above paragraph to purchase the aggregate principal amount or number of Underwritten Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase that exceeds 10% of the total principal amount or number, as the case may be, of such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units, this Agreement with respect to such Underwritten Debt Securities, Underwritten Warrants or Underwritten Units, as the case may be, shall terminate without liability on the part of any non-defaulting Underwriter or the Corporation. (c) Nothing contained in this Section 5 shall relieve a defaulting Underwriter of any liability it may have to the Corporation and any non-defaulting Underwriter for damages caused by its default. If other underwriters are obligated or agree to purchase the Underwritten Securities of a defaulting Underwriter, either the Representative or the Corporation may postpone the Delivery Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Corporation or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement.,