Common use of Default by a Member Clause in Contracts

Default by a Member. If for any reason one or more Members of the Underwriting Group shall fail or refuse (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 9 hereof) to purchase and pay for the number of Shares agreed to be purchased by such Member, the Company shall immediately give notice thereof to the Representative, and the non-defaulting Members shall have the right within 24 hours after the receipt by the Representative of such notice, to purchase or procure one or more other Members to purchase, in such proportions as may be agreed upon among the Representative and such purchasing Member or Members and upon the terms herein set forth, the Shares which such defaulting Member or Members agreed to purchase. If the non-defaulting Members fail so to make such arrangements with respect to all such Shares, the number of Shares which each non-defaulting Member is otherwise obligated to purchase under the Agreement shall be automatically increased pro rata to absorb the remaining Shares which the defaulting Member or Members agreed to purchase; provided, however, that the non-defaulting Members shall not be obligated to purchase the Shares which the defaulting Member or Members agreed to purchase in excess of 10% of the total number of Shares which such non-defaulting Member agreed to purchase hereunder, and provided further that the non-defaulting Members shall not be obligated to purchase any Shares which the defaulting Member or Members agreed to purchase if such additional purchase would cause the Member to be in violation of the net capital rule of the Commission or other applicable law. If the total number of Shares which the defaulting Member or Members agreed to purchase shall not be purchased or absorbed in accordance with the two preceding sentences, the Company shall have the right, within 24 hours next succeeding the 24-hour period above referred to, to make arrangements with other underwriters or purchasers satisfactory to the Representative for the purchase of such Shares on the terms herein set forth. In any such case, either the Representative or the Company shall have the right to postpone the Closing determined as provided in Section 3.2.2 hereof for not more than seven business days after the date originally fixed as the Closing pursuant to said Subsection 3.2.2 in order that any necessary changes in the Registration Statement, the Prospectus or any other documents or arrangements may be made. If neither the non-defaulting Members nor the Company shall make arrangements within the 24-hour periods stated above for the purchase of all the Shares which the defaulting Member or Members agreed to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of the Company to any non-defaulting Member.

Default by a Member. If for In the event any reason one or more Members Member defaults in making its portion of any Additional Capital Contribution by the Underwriting Group last day specified in the Call (the “Default Date”), the unpaid amount being herein called the “Contribution Deficiency,” then such Member shall fail or refuse be deemed a “Non-Contributing Member.” The Manager (otherwise than for a reason sufficient to justify or, if Xxxxxxx is the termination of this Agreement under the provisions of Section 9 hereof) to purchase and pay for the number of Shares agreed to be purchased by such Non- Contributing Member, the Company MOF) shall immediately give notice thereof to the Representative, and notify the non-defaulting Members shall have the right Member (if any) within 24 hours five (5) days after the receipt by the Representative of such notice, to purchase or procure one or more other Members to purchase, in such proportions as may be agreed upon among the Representative Default Date and such purchasing Member or Members and upon Member, if any (the terms herein set forth, the Shares which such defaulting Member or Members agreed to purchase. If the non-defaulting Members fail so to make such arrangements with respect to all such Shares, the number of Shares which each non-defaulting Member is otherwise obligated to purchase under the Agreement shall be automatically increased pro rata to absorb the remaining Shares which the defaulting Member or Members agreed to purchase; provided, however, that the non-defaulting Members shall not be obligated to purchase the Shares which the defaulting Member or Members agreed to purchase in excess of 10% of the total number of Shares which such non-defaulting Member agreed to purchase hereunder, and provided further that the non-defaulting Members shall not be obligated to purchase any Shares which the defaulting Member or Members agreed to purchase if such additional purchase would cause the Member to be in violation of the net capital rule of the Commission or other applicable law. If the total number of Shares which the defaulting Member or Members agreed to purchase shall not be purchased or absorbed in accordance with the two preceding sentences, the Company “Contributing Member”) shall have the right, within 24 hours next succeeding but not the 24-hour period above referred toobligation, to make arrangements with other underwriters or purchasers satisfactory a loan to the Representative for Non-Contributing Member up to the purchase amount of the Contribution Deficiency bearing interest from the date of the loan at a rate equal to the lesser of (i) the greater of (A) the “prime” or “base” rate of interest of commercial lending announced from time to time by Bank of America, plus eight percent (8%) per annum and (B) twelve percent (12%) per annum and (ii) the maximum rate pernlitted by applicable law. The Contributing Member may pay the amount of such Shares on loan directly to the terms herein set forth. In any such caseCompany, either the Representative or the Company shall have the right to postpone the Closing determined as provided in Section 3.2.2 hereof for not more than seven business days and from and after the date originally fixed as the Closing pursuant to said Subsection 3.2.2 in order that any necessary changes in the Registration Statement, the Prospectus or any other documents or arrangements may be made. If neither the non-defaulting Members nor the Company shall make arrangements within the 24-hour periods stated above for the purchase of such loan all the Shares which the defaulting Member or Members agreed to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of distributions by the Company to the Non-Contributing Member shall be paid by the Company to the Contributing Member and applied first to accrued but unpaid interest and then to principal on such loan until such loan has been paid in full. The loan (together with reasonable attorney’s fees and expenses incurred by the Contributing Member in enforcing the loan) shall be secured by the entire Membership Interest of the Non-Contributing Member under the Uniform Commercial Code of the State of Delaware, and the Contributing Member shall have all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Delaware. The Non-Contributing Member (x) hereby appoints the Contributing Member as its attorney-in-fact for the purpose of signing and filing any non-defaulting financing statements to perfect the Contributing Member’s security interest and (y) agrees to take such other actions as may reasonably be required to perfect or enforce such security interest.

Default by a Member. If for any reason one or more Members of the Underwriting Group shall fail or refuse (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 9 10 hereof) to purchase and pay for the number of Shares agreed to be purchased by such Member, the Company shall immediately give notice thereof to the Representative, and the non-defaulting Members shall have the right right, within 24 twenty-four (24) hours after the receipt by the Representative of such notice, to purchase or procure one or more other Members to purchase, in such proportions as may be agreed upon among between the Representative and such purchasing Member or Members Members, and upon the terms herein set forth, the Shares which such defaulting Member or Members agreed to, and subsequently failed, to purchase. If the non-defaulting Members fail so to make such arrangements with respect to all such Shares, the number of Shares which each non-defaulting Member is otherwise obligated to purchase under the Agreement shall be automatically increased pro rata PRO RATA to absorb the remaining Shares which the defaulting Member or Members agreed to purchase; provided, however, that the non-defaulting Members shall not be obligated to purchase the Shares which the defaulting Member or Members agreed to purchase in excess if the aggregate number of such Shares exceeds ten percent (10% %) of the total number of Shares which such non-defaulting Member all Members agreed to purchase hereunder, and provided further that the non-defaulting Members shall not be obligated to purchase any Shares which the defaulting Member or Members agreed to purchase if such additional purchase would cause the Member to be in violation of the net capital rule of the Commission or other applicable law. If the total number of Shares which the defaulting Member or Members agreed to purchase shall not be purchased or absorbed in accordance with the two preceding sentences, the Company shall have the right, within 24 twenty-four (24) hours next succeeding the twenty-four (24-) hour period above referred to, to make arrangements with other underwriters or purchasers satisfactory to the Representative for the purchase of such Shares on the terms herein set forth. In any such case, either the Representative or the Company shall have the right to postpone the Closing determined as provided in Section 3.2.2 4.6 hereof for not more than seven (7) business days after the date originally fixed as the Closing pursuant to said Subsection 3.2.2 Section in order that any necessary changes in the Registration Statement, the Prospectus or any other documents or arrangements may be made. If neither the non-defaulting Members nor the Company shall make arrangements within the twenty-four (24-) hour periods stated above for the purchase of all the Shares which the defaulting Member or Members agreed to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of the Company to any non-defaulting MemberMember and without any liability on the part of any non-defaulting Member to the Company. Nothing contained in this Section 4.2 shall relieve any defaulting Member of its liability, if any, to the Company or to the remaining Members for damages occasioned by its default hereunder.

Default by a Member. If for In the event any reason one or more Members Member defaults in making its portion of any Additional Capital Contribution by the Underwriting Group last day specified in the Call (the “Default Date”), the unpaid amount being herein called the “Contribution Deficiency,” then such Member shall fail or refuse be deemed a “Non-Contributing Member.” The Manager (otherwise than for a reason sufficient to justify or, if Xxxxxxx is the termination of this Agreement under the provisions of Section 9 hereof) to purchase and pay for the number of Shares agreed to be purchased by such Non-Contributing Member, the Company MOF) shall immediately give notice thereof to the Representative, and notify the non-defaulting Members shall have the right Member (if any) within 24 hours five (5) days after the receipt by the Representative of such notice, to purchase or procure one or more other Members to purchase, in such proportions as may be agreed upon among the Representative Default Date and such purchasing Member or Members and upon Member, if any (the terms herein set forth, the Shares which such defaulting Member or Members agreed to purchase. If the non-defaulting Members fail so to make such arrangements with respect to all such Shares, the number of Shares which each non-defaulting Member is otherwise obligated to purchase under the Agreement shall be automatically increased pro rata to absorb the remaining Shares which the defaulting Member or Members agreed to purchase; provided, however, that the non-defaulting Members shall not be obligated to purchase the Shares which the defaulting Member or Members agreed to purchase in excess of 10% of the total number of Shares which such non-defaulting Member agreed to purchase hereunder, and provided further that the non-defaulting Members shall not be obligated to purchase any Shares which the defaulting Member or Members agreed to purchase if such additional purchase would cause the Member to be in violation of the net capital rule of the Commission or other applicable law. If the total number of Shares which the defaulting Member or Members agreed to purchase shall not be purchased or absorbed in accordance with the two preceding sentences, the Company “Contributing Member”) shall have the right, within 24 hours next succeeding but not the 24-hour period above referred toobligation, to make arrangements with other underwriters or purchasers satisfactory a loan to the Representative for Non-Contributing Member up to the purchase amount of the Contribution Deficiency bearing interest from the date of the loan at a rate equal to the lesser of (i) the greater of (A) the “prime” or “base” rate of interest of commercial lending announced from time to time by Bank of America, plus eight percent (8%) per annum and (B) twelve percent (12%) per annum and (ii) the maximum rate permitted by applicable law. The Contributing Member may pay the amount of such Shares on loan directly to the terms herein set forth. In any such caseCompany, either the Representative or the Company shall have the right to postpone the Closing determined as provided in Section 3.2.2 hereof for not more than seven business days and from and after the date originally fixed as the Closing pursuant to said Subsection 3.2.2 in order that any necessary changes in the Registration Statement, the Prospectus or any other documents or arrangements may be made. If neither the non-defaulting Members nor the Company shall make arrangements within the 24-hour periods stated above for the purchase of such loan all the Shares which the defaulting Member or Members agreed to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of distributions by the Company to the Non-Contributing Member shall be paid by the Company to the Contributing Member and applied first to accrued but unpaid interest and then to principal on such loan until such loan has been paid in full. The loan (together with reasonable attorney’s fees and expenses incurred by the Contributing Member in enforcing the loan) shall be secured by the entire Membership Interest of the Non-Contributing Member under the Uniform Commercial Code of the State of Delaware, and the Contributing Member shall have all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Delaware. The Non-Contributing Member (x) hereby appoints the Contributing Member as its attorney-in-fact for the purpose of signing and filing any non-defaulting financing statements to perfect the Contributing Member’s security interest and (y) agrees to take such other actions as may reasonably be required to perfect or enforce such security interest.

Default by a Member. If for any reason one or more Members of the Underwriting Group shall fail or refuse (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 9 hereof) to purchase and pay for the number of Shares agreed to be purchased by such Member, the Company shall immediately give notice thereof to the Representative, and the non-defaulting Members shall have the right right, within 24 twenty-four (24) hours after the receipt by the Representative of such notice, to purchase or procure one or more other Members to purchase, in such proportions as may be agreed upon among between the Representative and such purchasing Member or Members Members, and upon the terms herein set forth, the Shares which such defaulting Member or Members agreed to, and subsequently failed, to purchase. If the non-defaulting Members fail so to make such arrangements with respect to all such Shares, the number of Shares which each non-defaulting Member is otherwise obligated to purchase under the Agreement shall be automatically increased pro rata PRO RATA to absorb the remaining Shares which the defaulting Member or Members agreed to purchase; provided, however, that the non-defaulting Members shall not be obligated to purchase the Shares which the defaulting Member or Members agreed to purchase in excess if the aggregate number of such Shares exceeds ten percent (10% %) of the total number of Shares which such non-defaulting Member all Members agreed to purchase hereunder, and provided further that the non-defaulting Members shall not be obligated to purchase any Shares which the defaulting Member or Members agreed to purchase if such additional purchase would cause the Member to be in violation of the net capital rule of the Commission or other applicable law. If the total number of Shares which the defaulting Member or Members agreed to purchase shall not be purchased or absorbed in accordance with the two preceding sentences, the Company shall have the right, within 24 twenty-four (24) hours next succeeding the twenty-four (24-) hour period above referred to, to make arrangements with other underwriters or purchasers satisfactory to the Representative for the purchase of such Shares on the terms herein set forth. In any such case, either the Representative or the Company shall have the right to postpone the Closing determined as provided in Section 3.2.2 3.6 hereof for not more than seven (7) business days after the date originally fixed as the Closing pursuant to said Subsection 3.2.2 Section in order that any necessary changes in the Registration Statement, the Prospectus or any other documents or arrangements may be made. If neither the non-defaulting Members nor the Company shall make arrangements within the twenty-four (24-) hour periods stated above for the purchase of all the Shares which the defaulting Member or Members agreed to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of the Company to any non-defaulting MemberMember and without any liability on the part of any non-defaulting Member to the Company. Nothing contained in this Section 3.2 shall relieve any defaulting Member of its liability, if any, to the Company or to the remaining Members for damages occasioned by its default hereunder.

Default by a Member. If for In the event any reason one or more Members Member defaults in making its portion of any Additional Capital Contribution by the Underwriting Group last day specified in the Call (the “Default Date”), the unpaid amount being herein called the “Contribution Deficiency,” then such Member shall fail or refuse be deemed a “Non-Contributing Member.” The Manager (otherwise than for a reason sufficient to justify or, if MPG is the termination of this Agreement under the provisions of Section 9 hereof) to purchase and pay for the number of Shares agreed to be purchased by such Non-Contributing Member, the Company Beacon) shall immediately give notice thereof to the Representative, and notify the non-defaulting Members shall have the right Member (if any) within 24 hours five (5) days after the receipt by the Representative of such notice, to purchase or procure one or more other Members to purchase, in such proportions as may be agreed upon among the Representative Default Date and such purchasing Member or Members and upon Member, if any (the terms herein set forth, the Shares which such defaulting Member or Members agreed to purchase. If the non-defaulting Members fail so to make such arrangements with respect to all such Shares, the number of Shares which each non-defaulting Member is otherwise obligated to purchase under the Agreement shall be automatically increased pro rata to absorb the remaining Shares which the defaulting Member or Members agreed to purchase; provided, however, that the non-defaulting Members shall not be obligated to purchase the Shares which the defaulting Member or Members agreed to purchase in excess of 10% of the total number of Shares which such non-defaulting Member agreed to purchase hereunder, and provided further that the non-defaulting Members shall not be obligated to purchase any Shares which the defaulting Member or Members agreed to purchase if such additional purchase would cause the Member to be in violation of the net capital rule of the Commission or other applicable law. If the total number of Shares which the defaulting Member or Members agreed to purchase shall not be purchased or absorbed in accordance with the two preceding sentences, the Company “Contributing Member”) shall have the right, within 24 hours next succeeding but not the 24-hour period above referred toobligation, to make arrangements with other underwriters or purchasers satisfactory a loan to the Representative for Non-Contributing Member up to the purchase amount of the Contribution Deficiency bearing interest from the date of the loan at a rate equal to the lesser of (i) the greater of (A) the “prime” or “base” rate of interest of commercial lending announced from time to time by Bank of America, plus eight percent (8%) per annum and (B) twelve percent (12%) per annum and (ii) the maximum rate permitted by applicable law. The Contributing Member may pay the amount of such Shares on loan directly to the terms herein set forth. In any such caseCompany, either the Representative or the Company shall have the right to postpone the Closing determined as provided in Section 3.2.2 hereof for not more than seven business days and from and after the date originally fixed as the Closing pursuant to said Subsection 3.2.2 in order that any necessary changes in the Registration Statement, the Prospectus or any other documents or arrangements may be made. If neither the non-defaulting Members nor the Company shall make arrangements within the 24-hour periods stated above for the purchase of such loan all the Shares which the defaulting Member or Members agreed to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of distributions by the Company to the Non-Contributing Member shall be paid by the Company to the Contributing Member and applied first to accrued but unpaid interest and then to principal on such loan until such loan has been paid in full. The loan (together with reasonable attorney’s fees and expenses incurred by the Contributing Member in enforcing the loan) shall be secured by the entire Membership Interest of the Non-Contributing Member under the Uniform Commercial Code of the State of Delaware, and the Contributing Member shall have all the rights and remedies of a secured party under the Uniform Commercial Code of the State of Delaware. The Non-Contributing Member (x) hereby appoints the Contributing Member as its attorney-in-fact for the purpose of signing and filing any non-defaulting financing statements to perfect the Contributing Member’s security interest and (y) agrees to take such other actions as may reasonably be required to perfect or enforce such security interest.

Default by a Member. If for any reason one or more Members of the Underwriting Group shall fail or refuse (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 9 hereof) to purchase and pay for the number of Shares Units agreed to be purchased by such Member, the Company shall immediately give notice thereof to the Representative, and the non-defaulting Members shall have the right within 24 hours after the receipt by the Representative of such notice, to purchase or procure one or more other Members to purchase, in such proportions as may be agreed upon among the Representative and such purchasing Member or Members and upon the terms herein set forth, the Shares Units which such defaulting Member or Members agreed to purchase. If the non-defaulting Members fail so to make such arrangements with respect to all such SharesUnits, the number of Shares Units which each non-defaulting Member is otherwise obligated to purchase under the Agreement shall be automatically increased pro rata to absorb the remaining Shares Units which the defaulting Member or Members agreed to purchase; provided, however, that the non-defaulting Members shall not be obligated to purchase the Shares Units which the defaulting Member or Members agreed to purchase in excess of 10% of the total number of Shares Units which such non-defaulting Member agreed to purchase hereunder, and provided further that the non-defaulting Members shall not be obligated to purchase any Shares Units which the defaulting Member or Members agreed to purchase if such additional purchase would cause the Member to be in violation of the net capital rule of the Commission or other applicable law. If the total number of Shares Units which the defaulting Member or Members agreed to purchase shall not be purchased or absorbed in accordance with the two preceding sentences, the Company shall have the right, within 24 hours next succeeding the 2414-hour period above referred to, to make arrangements with other underwriters or purchasers satisfactory to the Representative for the purchase of such Shares Units on the terms herein set forth. In any such case, either the Representative or the Company shall have the right to postpone the Closing determined as provided in Section 3.2.2 hereof for not more than seven business days after the date originally fixed as the Closing pursuant to said Subsection 3.2.2 in order that any necessary changes in the Registration Statement, the Prospectus or any other documents or arrangements may be made. If neither the non-defaulting Members nor the Company shall make arrangements within the 24-hour periods stated above for the purchase of all the Shares Units which the defaulting Member or Members agreed to purchase hereunder, this Agreement shall be terminated without further act or deed and without any liability on the part of the Company to any non-defaulting Member, except the Company shall be liable for actual expenses incurred by the Representative as provided in Section 3.4 hereof, and without any liability on the part of any non-defaulting Member to the Company.