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, wxxxxx 04 xxxxs 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 completex xxxx axxxxxements 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, wxxxxx 04 xxxxs 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 completex xxxx axxxxxements 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: Xxxxxx Xxxx Xxxxxdent 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: Xxxxxx Xxxx Xxxxxdent 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: Xxxxxxxx X. Xxxxxxan Title: Vice President BB&T CAPITAL MARKXXX Xx: /x/ Xxxxx A. Tyler Jr. -------------------------------- Name: Xxxxx X. Xxxxx Xx. Title: Senior Vice President MCDONALD INVESTMENTS INC. By: /x/ Victor F. Faris -------------------------------- Name: Victxx X. Xxxxx Title: Managing Director STIFFEL, NICOLAUS & XXXXXXX, INCORPORATED By: /x/ T. Rixxxxx Xxxxxxxx XX -------------------------------- Name: X. Xxxxxxx Xxxxrick IV Title: Senior Vice President U.S. BANCORX XXXXX XXXXXXX By: /x/ Louis Martine -------------------------------- Xame: Louis Xxxxxxx Title: Managing Director FIRST UNION SECURITIXX, XXX. Xx: /x/ William Ingram -------------------------------- Name: Willxxx Xxxxxx 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 Xxxxxxuts own the xxxxxx xxares (5% of total shares) Home Properties Resident Services, Inc. Maryland Corp. OP owns the non-voting shares (99% of total shares)/Nelson Leenhouts axx Xxxxxx Xxxxxxuts own the xxxxxx xxares (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 ------------------------------------- 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, wxxxxx 04 xxxxs 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 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 completex xxxx axxxxxements 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 for a period not exceeding seven days in order to effect any required change in the Closing Time, the obligations of the Underwriters to purchase, and the Company to sell, such Option Underwritten Securities onRegistration Statement or Prospectus or in any other documents or arrangements.