Common use of Default by the Company Clause in Contracts

Default by the Company. If (i) any of the representations and warranties made by the Company in this Agreement (as updated by the Company's Representation Certificate) are inaccurate or incorrect in any material respect on the date made or deemed made, or (ii) if the Company fails to perform its covenants, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of ten (10) days after written notice by Owner to Company or the Closing Date, or (iii) the purchaser under the Other Contract (the "OTHER PURCHASER") fails to perform its covenants, obligations or agreements under the Other Contract and the seller under the Other Contract (the `OTHER SELLER") terminates the Other Contract as a result of such failure, then in any of such events, Owner's sole and exclusive remedy shall be the right to cancel and terminate this Agreement and receive and retain the Deposit (provided, however, that if the Company is then obligated to post the Additional Deposit but has not done so, then Owner shall have a right to receive the Initial Deposit and shall have a post termination damage claim against the Company for the Additional Deposit and all expenses incurred by owner in collecting same, including reasonable attorneys' fees). Upon such termination, each party shall be released from all duties or obligations contained herein except as may otherwise be expressly set forth in this Agreement as surviving a termination of this Agreement, and the Title Company shall immediately pay the Deposit to Owner as liquidated damages as the sole and exclusive remedy of Owner, it being understood and agreed that Owner is hereby releasing and/or waiving any right it might have to either specifically enforce this Agreement or to xxx for damages (other than to collect the Additional Deposit, as aforesaid, if the same had not been delivered to the Title Company when due). Owner has agreed to this liquidated damage provision because of the difficulty of ascertaining Owner's actual damages given the uncertainties of the real estate market, fluctuating property values and differences of opinion with respect to such matters.

Default by the Company. (a) If the Company shall fail at the First Closing Date to sell and deliver the number of Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Underwriters or, except as provided in Section 4(g) and Section 6 hereof, any non-defaulting party. No action taken pursuant to this Section 9 shall relieve the Company from liability, if any, in respect of such default. (b) If any Underwriter shall fail at the First Closing Date to purchase and pay for the portion of the Securities which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company), the Representative shall use its reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Securities which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the Representative shall not have procured such other Underwriters, or any others, to purchase the Securities agreed to be purchased by the defaulting Underwriter or Underwriters, then (i) any if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the representations and warranties made by the Company in this Agreement (as updated by the Company's Representation Certificate) are inaccurate or incorrect in any material respect Securities to be purchased on the date made First Closing Date, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Securities which they are obligated to purchase hereunder, to purchase the Securities which such defaulting Underwriter or deemed madeUnderwriters failed to purchase, or (ii) if the Company fails aggregate number of shares with respect to perform its covenantswhich such default shall occur exceeds 10% of the Securities to be purchased on the First Closing Date, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of ten (10) days after written notice by Owner to Company or the Closing DateRepresentative will have the right, or (iii) by written notice given within the purchaser under next 36-hour period to the Other Contract (the "OTHER PURCHASER") fails parties to perform its covenantsthis Agreement, obligations or agreements under the Other Contract and the seller under the Other Contract (the `OTHER SELLER") terminates the Other Contract as a result of such failure, then in any of such events, Owner's sole and exclusive remedy shall be the right to cancel and terminate this Agreement and receive and retain without liability on the Deposit (provided, however, that if part of the non-defaulting Underwriters or of the Company is then obligated to post the Additional Deposit but has not done so, then Owner shall have a right to receive the Initial Deposit and shall have a post termination damage claim against the Company for the Additional Deposit and all expenses incurred by owner in collecting same, including reasonable attorneys' fees). Upon such termination, each party shall be released from all duties or obligations contained herein except as may otherwise be expressly set forth in this Agreement as surviving a termination of this Agreement, and the Title Company shall immediately pay the Deposit to Owner as liquidated damages as the sole and exclusive remedy of Owner, it being understood and agreed that Owner is hereby releasing and/or waiving any right it might have to either specifically enforce this Agreement or to xxx for damages (other than to collect the Additional Deposit, as aforesaid, if the same had not been delivered to the Title Company when due). Owner has agreed to this liquidated damage provision because of the difficulty of ascertaining Owner's actual damages given the uncertainties of the real estate market, fluctuating property values and differences of opinion with respect to such matters.except

Default by the Company. If (i) any of the representations and warranties made Registration Statement covering the Registrable Securities required to be filed by the Company in this Agreement pursuant to Section 2(a) hereof is not declared effective within ninety (as updated by 90) days from the Company's Representation Certificate) are inaccurate or incorrect in any material respect on the date made or deemed madeSubscription Date ("Required Effective Date"), or (ii) if the Company fails to perform its covenants, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of ten (10) days after written notice by Owner to Company the Additional Registration Date ("Additional Required Effective Date") or a Registration Default as defined in Section 3(g) hereof occurs; or the Closing DateRegistration Statement is suspended for more than ten (10) days as set forth in Section 3(i) hereof, or the Common Stock is delisted from trading on the OTC Bulletin Board or an automated securities exchange as defined in Rule 144 under the Securities Act (iiicollectively "Default Events"), then (i) the purchaser under commitment to purchase the Other Contract Series F Convertible Preferred Stock contained in the Private Equity Credit Agreement and in this Agreement (the "OTHER PURCHASERCommitment") fails to perform its covenants, obligations or agreements under the Other Contract shall terminate and the seller under the Other Contract (the `OTHER SELLER") terminates the Other Contract as a result of such failure, then in any of such events, Owner's sole and exclusive remedy Subscriber shall be entitled to the right to cancel sums and terminate this the Warrants set forth in Section 2.1(b) and 2.7of the Private Equity Credit Agreement and receive and retain (ii)the Company will make payments to Subscriber in terms of SECTION 2(c) below. The Company acknowledges the Deposit (provided, however, occurrence of one or more Default Events shall cause the Subscriber to suffer damages in an amount that if the Company is then obligated to post the Additional Deposit but has not done so, then Owner shall have a right to receive the Initial Deposit and shall have a post termination damage claim against the Company for the Additional Deposit and all expenses incurred by owner in collecting same, including reasonable attorneys' fees). Upon such termination, each party shall be released from all duties or obligations contained herein except as may otherwise be expressly difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in the Private Equity Credit Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated damages provision set forth in this Agreement section represents the parties' good faith effort to quantify such damages and, as surviving such, agree that the form and amount of such liquidated damages are reasonable and will not constitute a termination penalty. The payment of liquidated damages shall not relieve the Company from its obligations to register the Common Stock and deliver the Common Stock pursuant to the terms of this Agreement, Agreement and the Title Company shall immediately pay the Deposit to Owner as liquidated damages as the sole and exclusive remedy of Owner, it being understood and agreed that Owner is hereby releasing and/or waiving any right it might have to either specifically enforce this Agreement or to xxx for damages (other than to collect the Additional Deposit, as aforesaid, if the same had not been delivered to the Title Company when due). Owner has agreed to this liquidated damage provision because of the difficulty of ascertaining Owner's actual damages given the uncertainties of the real estate market, fluctuating property values and differences of opinion with respect to such mattersSubscribed Shares.

Default by the Company. (a) If the Company shall fail at the First Closing Date to sell and deliver the number of Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Underwriters or, except as provided in Section 4(viii) and Section 6 hereof, any non defaulting party. No action taken pursuant to this Section 9 shall relieve the Company from liability, if any, in respect of such default. (b) If any Underwriter shall fail at the First Closing Date to purchase and pay for the portion of the Securities which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company), the Representative shall use its reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Securities which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the Representative shall not have procured such other Underwriters, or any others, to purchase the Securities agreed to be purchased by the defaulting Underwriter or Underwriters, then (i) any if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the representations and warranties made by the Company in this Agreement (as updated by the Company's Representation Certificate) are inaccurate or incorrect in any material respect Securities to be purchased on the date made First Closing Date, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Securities which they are obligated to purchase hereunder, to purchase the Securities which such defaulting Underwriter or deemed madeUnderwriters failed to purchase, or (ii) if the Company fails aggregate number of shares with respect to perform its covenantswhich such default shall occur exceeds 10% of the Securities to be purchased on the First Closing Date, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of ten (10) days after written notice by Owner to Company or the Closing DateRepresentative will have the right, or (iii) by written notice given within the purchaser under next 36-hour period to the Other Contract (the "OTHER PURCHASER") fails parties to perform its covenantsthis Agreement, obligations or agreements under the Other Contract and the seller under the Other Contract (the `OTHER SELLER") terminates the Other Contract as a result of such failure, then in any of such events, Owner's sole and exclusive remedy shall be the right to cancel and terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Sections 4(viii) and receive and retain the Deposit (6 hereof; provided, however, that if the Company is then obligated to post the Additional Deposit but has not done so, then Owner shall have a right to receive the Initial Deposit and shall have a post upon any such termination damage claim against the Company for the Additional Deposit and all expenses incurred by owner in collecting same, including reasonable attorneys' fees). Upon such termination, each party shall be released from all duties or obligations contained herein except as may otherwise be expressly set forth in this Agreement Section 9(b), the Company shall not be required to pay the expenses of the Underwriters as surviving described in Section 4(viii) above. In the event of a termination default by any Underwriter or Underwriters, as set forth in this Section 9(b), the First Closing Date may be postponed for such period, not exceeding seven days, as the Representative may determine in order that the required changes in the Registration Statement, the Time of Sale Disclosure Package or in the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter” includes any person substituted for a defaulting Underwriter. Any action taken under this Section 9 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement, and the Title Company shall immediately pay the Deposit to Owner as liquidated damages as the sole and exclusive remedy of Owner, it being understood and agreed that Owner is hereby releasing and/or waiving any right it might have to either specifically enforce this Agreement or to xxx for damages (other than to collect the Additional Deposit, as aforesaid, if the same had not been delivered to the Title Company when due). Owner has agreed to this liquidated damage provision because of the difficulty of ascertaining Owner's actual damages given the uncertainties of the real estate market, fluctuating property values and differences of opinion with respect to such matters.

Default by the Company. (a) If the Company shall fail at the First Closing Date to sell and deliver the number of Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Underwriters or, except as provided in Section 4(g) and Section 6 hereof, any non-defaulting party. No action taken pursuant to this Section 9 shall relieve the Company from liability, if any, in respect of such default. (b) If any Underwriter shall fail at the First Closing Date to purchase and pay for the portion of the Securities which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company), the Representative shall use its reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Securities which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the Representative shall not have procured such other Underwriters, or any others, to purchase the Securities agreed to be purchased by the defaulting Underwriter or Underwriters, then (i) any if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the representations and warranties made by the Company in this Agreement (as updated by the Company's Representation Certificate) are inaccurate or incorrect in any material respect Securities to be purchased on the date made First Closing Date, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Securities which they are obligated to purchase hereunder, to purchase the Securities which such defaulting Underwriter or deemed madeUnderwriters failed to purchase, or (ii) if the Company fails aggregate number of shares with respect to perform its covenantswhich such default shall occur exceeds 10% of the Securities to be purchased on the First Closing Date, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of ten (10) days after written notice by Owner to Company or the Closing DateRepresentative will have the right, or (iii) by written notice given within the purchaser under next 36-hour period to the Other Contract (the "OTHER PURCHASER") fails parties to perform its covenantsthis Agreement, obligations or agreements under the Other Contract and the seller under the Other Contract (the `OTHER SELLER") terminates the Other Contract as a result of such failure, then in any of such events, Owner's sole and exclusive remedy shall be the right to cancel and terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Sections 4(g) and receive and retain the Deposit (§. hereof; provided, however, that if the Company is then obligated to post the Additional Deposit but has not done so, then Owner shall have a right to receive the Initial Deposit and shall have a post upon any such termination damage claim against the Company for the Additional Deposit and all expenses incurred by owner in collecting same, including reasonable attorneys' fees). Upon such termination, each party shall be released from all duties or obligations contained herein except as may otherwise be expressly set forth in this Agreement Section 9(b), the Company shall not be required to pay the expenses of the Underwriters as surviving described in Section 4(g) above. In the event of a termination default by any Underwriter or Underwriters, as set forth in this Section 9(b), the First Closing Date may be postponed for such period, not exceeding seven days, as the Representative may determine in order that the required changes in the Registration Statement, the Time of Sale Disclosure Package or in the Final Prospectuses or in any other documents or arrangements may be effected. The term "Underwriter" includes any person substituted for a defaulting Underwriter. No action taken under this Section 9 shall relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement, and the Title Company shall immediately pay the Deposit to Owner as liquidated damages as the sole and exclusive remedy of Owner, it being understood and agreed that Owner is hereby releasing and/or waiving any right it might have to either specifically enforce this Agreement or to xxx for damages (other than to collect the Additional Deposit, as aforesaid, if the same had not been delivered to the Title Company when due). Owner has agreed to this liquidated damage provision because of the difficulty of ascertaining Owner's actual damages given the uncertainties of the real estate market, fluctuating property values and differences of opinion with respect to such matters.

Default by the Company. (a) If the Company shall fail at the First Closing Date to sell and deliver the number of Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Underwriters or, except as provided in Section 4(h) and Section 6 hereof, any non defaulting party. No action taken pursuant to this Section 0 shall not relieve the Company from liability, if any, in respect of such default. (b) If any Underwriter shall fail at the First Closing Date to purchase and pay for the portion of the Securities which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company), the Representative shall use its reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Securities which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the Representative shall not have procured such other Underwriters, or any others, to purchase the Securities agreed to be purchased by the defaulting Underwriter or Underwriters, then (i) any if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the representations and warranties made by the Company in this Agreement (as updated by the Company's Representation Certificate) are inaccurate or incorrect in any material respect Securities to be purchased on the date made First Closing Date, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Securities which they are obligated to purchase hereunder, to purchase the Securities which such defaulting Underwriter or deemed madeUnderwriters failed to purchase, or (ii) if the Company fails aggregate number of shares with respect to perform its covenantswhich such default shall occur exceeds 10% of the Securities to be purchased on the First Closing Date, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of ten (10) days after written notice by Owner to Company or the Closing DateRepresentative will have the right, or (iii) by written notice given within the purchaser under next 36-hour period to the Other Contract (the "OTHER PURCHASER") fails parties to perform its covenantsthis Agreement, obligations or agreements under the Other Contract and the seller under the Other Contract (the `OTHER SELLER") terminates the Other Contract as a result of such failure, then in any of such events, Owner's sole and exclusive remedy shall be the right to cancel and terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Sections 4(viii) and receive and retain the Deposit (6 hereof; provided, however, that if the Company is then obligated to post the Additional Deposit but has not done so, then Owner shall have a right to receive the Initial Deposit and shall have a post upon any such termination damage claim against the Company for the Additional Deposit and all expenses incurred by owner in collecting same, including reasonable attorneys' fees). Upon such termination, each party shall be released from all duties or obligations contained herein except as may otherwise be expressly set forth in this Agreement Section 9(b), the Company shall not be required to pay the expenses of the Underwriters as surviving described in Section 4(viii) above. In the event of a termination default by any Underwriter or Underwriters, as set forth in this Section 9(b), the First Closing Date may be postponed for such period, not exceeding seven days, as the Representative may determine in order that the required changes in the Registration Statement, the Time of Sale Disclosure Package or in the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter” includes any person substituted for a defaulting Underwriter. Any action taken under this Section 9 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement, and the Title Company shall immediately pay the Deposit to Owner as liquidated damages as the sole and exclusive remedy of Owner, it being understood and agreed that Owner is hereby releasing and/or waiving any right it might have to either specifically enforce this Agreement or to xxx for damages (other than to collect the Additional Deposit, as aforesaid, if the same had not been delivered to the Title Company when due). Owner has agreed to this liquidated damage provision because of the difficulty of ascertaining Owner's actual damages given the uncertainties of the real estate market, fluctuating property values and differences of opinion with respect to such matters.

Default by the Company. If (i) The occurrence of any of the representations and warranties made following at any time during the Term shall constitute an “Event of Default” by the Company: (1) The Company in shall fail to pay the Seller any amount as and when due under this Agreement (as updated by less any amounts disputed in good faith pursuant to Section 6.2 (Payment)) and shall fail to remedy such non-payment within thirty (30) Days after demand therefor from the Company's Representation CertificateSeller. (2) are inaccurate The Company shall fail to construct, operate, maintain or incorrect in any material respect on repair the date made or deemed made, or (ii) if the Company fails to perform its covenants, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of ten (10) days after written notice by Owner to Company or the Closing Date, or (iii) the purchaser under the Other Contract (the "OTHER PURCHASER") fails to perform its covenants, obligations or agreements under the Other Contract and the seller under the Other Contract (the `OTHER SELLER") terminates the Other Contract as a result of such failure, then in any of such events, Owner's sole and exclusive remedy shall be the right to cancel and terminate this Agreement and receive and retain the Deposit (provided, however, that if Interconnection Facilities for which the Company is then obligated to post responsible for under Attachment A-3, in accordance with the Additional Deposit but has not done so, then Owner shall have a right to receive the Initial Deposit and shall have a post termination damage claim against the Company for the Additional Deposit and all expenses incurred by owner in collecting same, including reasonable attorneys' fees). Upon such termination, each party shall be released from all duties or obligations contained herein except as may otherwise be expressly set forth in this Agreement as surviving a termination terms of this Agreement, such that the safety of persons or property, the Expansion Facility, the Seller’s equipment, or the Seller’s entitlement to payments hereunder for capacity or energy is adversely affected, and shall fail to cure such failure within forty-five (45) Days after demand therefor from the Title Seller. (3) The Company shall immediately pay abandon the Deposit Interconnection Facilities or shall discontinue purchases of capacity and energy required under this Agreement, unless such discontinuance is caused by reasons of Force Majeure or an Event of Default by the Seller, and shall fail to Owner cure such failure within forty-five (45) Days after demand therefor from the Seller. (4) The Company shall (a) be dissolved, be adjudicated as liquidated damages bankrupt, or become subject to an order for relief under any federal bankruptcy law; (b) fail to pay, or admit in writing its inability to pay, its debts generally as they become due; (c) make a general assignment of substantially all its assets for the sole and exclusive remedy benefit of Ownercreditors; (d) apply for, it being understood and agreed that Owner is hereby releasing and/or waiving seek, consent to, or acquiesce in the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for itself or any right it might have to either specifically enforce this Agreement substantial part of its property; (e) institute any proceedings seeking an order for relief or to xxx for damages adjudicate it as bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization, or relief of debtors; or (other than f) take any action to collect the Additional Deposit, as aforesaid, if the same had not been delivered to the Title Company when due). Owner has agreed to this liquidated damage provision because authorize or effect any of the difficulty of ascertaining Owner's actual damages given foregoing actions. (5) Without the uncertainties application, approval or consent of the real estate marketCompany, fluctuating property values a receiver, trustee, examiner, liquidator or similar official shall be appointed for the Company or any part of its respective property, or a proceeding described in Section 8.1B(4)(e) shall be instituted against the Company and differences of opinion with respect to such matters.appointment shall

Default by the Company. (a) If the Company shall fail at the First Closing Date to sell and deliver the number of Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Underwriters or, except as provided in Section 4(h) and Section 6 hereof, any non defaulting party. No action taken pursuant to this Section 9 shall relieve the Company from liability, if any, in respect of such default. (b) If any Underwriter shall fail at the First Closing Date to purchase and pay for the portion of the Securities which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any default on the part of the Company), the Representatives shall use their reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Securities which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the Representatives shall not have procured such other Underwriters, or any others, to purchase the Securities agreed to be purchased by the defaulting Underwriter or Underwriters, then (i) any if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the representations and warranties made by the Company in this Agreement (as updated by the Company's Representation Certificate) are inaccurate or incorrect in any material respect Securities to be purchased on the date made First Closing Date, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Securities which they are obligated to purchase hereunder, to purchase the Securities which such defaulting Underwriter or deemed madeUnderwriters failed to purchase, or (ii) if the Company fails aggregate number of shares with respect to perform its covenantswhich such default shall occur exceeds 10% of the Securities to be purchased on the First Closing Date, obligations or agreements under this Agreement and such failure is not cured on or before the earlier of ten (10) days after written notice by Owner to Company or the Closing DateRepresentatives will have the right, or (iii) by written notice given within the purchaser under next 36-hour period to the Other Contract (the "OTHER PURCHASER") fails parties to perform its covenantsthis Agreement, obligations or agreements under the Other Contract and the seller under the Other Contract (the `OTHER SELLER") terminates the Other Contract as a result of such failure, then in any of such events, Owner's sole and exclusive remedy shall be the right to cancel and terminate this Agreement without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Sections 4(h) and receive and retain the Deposit (6 hereof; provided, however, that if the Company is then obligated to post the Additional Deposit but has not done so, then Owner shall have a right to receive the Initial Deposit and shall have a post upon any such termination damage claim against the Company for the Additional Deposit and all expenses incurred by owner in collecting same, including reasonable attorneys' fees). Upon such termination, each party shall be released from all duties or obligations contained herein except as may otherwise be expressly set forth in this Agreement Section 9(b), the Company shall not be required to pay the expenses of the Underwriters as surviving described in Section 4(h) above. In the event of a termination default by any Underwriter or Underwriters, as set forth in this Section 9(b), the First Closing Date may be postponed for such period, not exceeding seven days, as the Representatives may determine in order that the required changes in the Registration Statement, the Time of Sale Disclosure Package or in the Final Prospectuses or in any other documents or arrangements may be effected. The term “Underwriter” includes any person substituted for a defaulting Underwriter. No action taken under this Section 9 shall relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement, and the Title Company shall immediately pay the Deposit to Owner as liquidated damages as the sole and exclusive remedy of Owner, it being understood and agreed that Owner is hereby releasing and/or waiving any right it might have to either specifically enforce this Agreement or to xxx for damages (other than to collect the Additional Deposit, as aforesaid, if the same had not been delivered to the Title Company when due). Owner has agreed to this liquidated damage provision because of the difficulty of ascertaining Owner's actual damages given the uncertainties of the real estate market, fluctuating property values and differences of opinion with respect to such matters.