Breach of Volume Limitation. Borrower and Lender agree that in the event Investor breaches the Volume Limitation where its Net Sales of Shares during any given period exceed the dollar volume it is permitted to sell during such period pursuant to the Volume Limitation (such excess, the “Excess Sales”), then in such event, as Borrower’s sole and exclusive remedy for such breach (and which breach may not be used as a defense to Borrower’s performance of its obligations hereunder), Investor shall be obligated to pay to Borrower in cash a fee in the amount of 25% of the Excess Sales (the “Excess Sales Fee”) upon Borrower’s delivery to Investor of a written notice setting for its basis for charging such Excess Sales Fee. For illustration purposes only, if Company’s weekly dollar trading volume was $400,000.00 for a calendar week, Investor would be entitled to Net Sales of up to $40,000.00 during that week. If Investor’s Net Sales for such week were equal to $50,000.00, and Investor had sold the maximum number of Shares it could within the Volume Limitation during each prior week, then in such event Investor would be obligatd to pay to Borrower an Excess Sales Fee in the amount of $2,500.00 (($50,000.00 - $40,000.00) x 25%). For the avoidance of doubt, in such event Investor shall be entitled to retain the Excess Sales and shall have no obligation to return the Excess Sales to Borrower.
Breach of Volume Limitation. Until such time as all the Shares have been sold, Company shall have the right at any time to request that Typenex or its broker deliver a brokerage account statement showing Typenex’s trading activity with respect to the Shares. Typenex agrees to direct its broker to provide such statements directly to Company upon Company’s request. Such brokerage account statements shall delivered to Company within two (2) Trading Days of a request from Company. In the event Typenex’s broker fails to timely deliver any required brokerage account statement, Company may request that Typenex provide such statement to Company and Typenex shall be obligated to deliver such statement to Company within two (2) Trading Days of Company’s request. For the avoidance of doubt, failure by Typenex’s broker to deliver a brokerage account statement shall not be deemed a breach by Typenex of this Agreement. Company and Typenex agree that in the event Typenex breaches the Volume Limitation where its Net Sales of Shares during any week exceed the dollar volume it is permitted to sell during such week pursuant to the Volume Limitation, then in such event, as Company’s sole and exclusive remedy for such breach (and which breach may not be used as a defense to Company’s performance of its obligations hereunder), Company shall receive a cash payment equal to such amount. By way of example only, if the Net Sales of a portion of the Shares were $27,000.00 for a given week where the Volume Limitation was $25,000.00, then Company would receive cash in the amount of $2,000.00 ($27,000.00 - $25,000.00) within five (5) Trading Days of demonstrating the breach as set forth below. Company must prove any breach of the Volume Limitation by clear and convincing evidence.
