Common use of Additional Remedies for Breach Clause in Contracts

Additional Remedies for Breach. A. In the event that prior to the expiration of any term hereof, there is (i) a failure to pay royalties on a timely basis, (ii) a termination of this Agreement by Franchisee, (iii) any breach of Section 7C hereof due to the willful closure or willful deidentification of Offices in excess of those permitted to be closed or deidentified pursuant to Section 7C, (iv) any breach of Section 7C hereof due to the closure or deidentification of in excess of 20 of the Offices permitted to be closed or deidentified pursuant to Section 7C, (v) termination of this Agreement pursuant to Section 17D, (vi) the affiliation by Franchisee with another real estate brokerage system (other than a system owned by Cendant), or (vii) any breach of this Agreement by Franchisee (other than a breach of Section 6G hereof) that has, or is reasonably expected to have, a material adverse effect on the CENTURY 21 System, in each case other than clause (v) above after notice to Franchisee and a reasonable opportunity to cure (each, a "Liquidated Damages Event"), Franchisee shall immediately become ------------------------ obligated to pay Franchisor Franchisor's "lost future profits" (as hereinafter defined). For purposes of this Agreement "lost future profits" for an office shall consist of all royalty fees which Franchisee would have paid to Franchisor with respect to such office from the date of the Liquidated Damages Event through the earlier of the end of the then-current term of this Agreement, had there been no Liquidated Damages Event, and 25 years from the date of the Liquidated Damages Event. The parties acknowledge and agree that it would be impracticable and extremely difficult to calculate the actual amount of lost future profits payable by Franchisee, and that the following method of calculation represents a fair and reasonable estimate of foreseeable lost future profits: Lost future profits shall be calculated on an Office by Office basis by determining the average monthly royalty fee payment payable by the Franchisee to Franchisor for each such Office from the commencement date of this Agreement through the date of the Liquidated Damages Event, and multiplying these average amounts by the lesser of (i) the actual number of months (and any fraction thereof) remaining between the date of the Liquidated Damages Event and the end of the then-current term of this Agreement and (ii) 300. Lost future profits shall be payable with respect to all of Franchisee's Offices, provided that in the case of clauses (iii) and (iv) of the definition of Liquidated Damages Event, lost future profits shall only be payable with respect to the Offices closed or deidentified in violation of Section 7C (including the 20 permitted to be closed or deidentified before clause (iv) becomes effective). Franchisee shall be entitled to a credit toward the total amount of lost future profits payable to Franchisor only for those amounts which are paid by Franchisee to Franchisor for each such Office pursuant to the provisions of Paragraph 18.B of this Agreement. Franchisee acknowledges that the lost future profits set forth in this section are fair and reasonable, in light of the fact that Franchisor's affiliate has participated in Franchisee's prior acquisitions and will participate in Franchisee's future acquisitions by purchasing the tradenames and trademarked operating names of the acquired entities with the intention of licensing such names, together with the names licensed hereunder, to Franchisee and the expectation of royalties in consideration of the use of such names, for the full term of this Agreement.

Additional Remedies for Breach. A. In the event that prior to the expiration of any term hereof, there is (i) a failure to pay royalties on a timely basis, (ii) a termination of this Agreement by Franchisee, (iii) any breach of Section 7C hereof due to the willful closure or willful deidentification of Offices in excess of those permitted to be closed or deidentified pursuant to Section 7C, (iv) any breach of Section 7C hereof due to the closure or deidentification of in excess of 20 of the Offices permitted to be closed or deidentified pursuant to Section 7C, (v) termination of this Agreement pursuant to Section 17D, (vi) the affiliation by Franchisee with another real estate brokerage system (other than a system owned by Cendant), or (vii) any breach of this Agreement by Franchisee (other than a breach of Section 6G hereof) that has, or is reasonably expected to have, a material adverse effect on the CENTURY 21 System, in each case other than clause (v) above after notice to Franchisee and a reasonable opportunity to cure (each, a "Liquidated Damages Event"), Franchisee shall immediately become ------------------------ obligated to pay Franchisor Franchisor's "lost future profits" (as hereinafter defined). For purposes of this Agreement "lost future profits" for an office shall consist of all royalty fees which Franchisee would have paid to Franchisor with respect to such office from the date of the Liquidated Damages Event through the earlier of the end of the then-current term of this Agreement, had there been no Liquidated Damages Event, and 25 years from the date of the Liquidated Damages Event. The parties acknowledge and agree that it would be impracticable and extremely difficult to calculate the actual amount of lost future profits payable by Franchisee, and that the following method of calculation represents a fair and reasonable estimate of foreseeable lost future profits: Lost future profits shall be calculated on an Office by Office basis by determining the average monthly royalty fee payment payable by the Franchisee to Franchisor for each such Office from the commencement date of this Agreement through the date of the Liquidated Damages Event, and multiplying these average amounts by the lesser of (i) the actual number of months (and any fraction thereof) remaining between the date of the Liquidated Damages Event and the end of the then-current term of this Agreement and (ii) 300. Lost future profits shall be payable with respect to all of Franchisee's Offices, provided that in the case of clauses (iii) and (iv) of the definition of Liquidated Damages Event, lost future profits shall only be payable with respect to the Offices closed or deidentified in violation of Section 7C (including the 20 permitted to be closed or deidentified before clause (iv) becomes effective). Franchisee shall be entitled to a credit toward the total amount of lost future profits payable to Franchisor only for those amounts which are paid by Franchisee to Franchisor for each such Office pursuant to the provisions of Paragraph 18.B of this Agreement. Franchisee acknowledges that the lost future profits set forth in this section are fair and reasonable, in light of the fact that Franchisor's affiliate has participated in Franchisee's prior acquisitions and will participate in Franchisee's future acquisitions by purchasing the tradenames and trademarked operating names of the acquired entities with the intention of licensing such names, together with the names licensed hereunder, to Franchisee and the expectation of royalties in consideration of the use of such names, for the full term of this Agreement.. <PAGE>

Additional Remedies for Breach. A. a. In the event that prior to the expiration of any term hereof, there is (i) a failure to pay royalties on a timely basis, (ii) a termination of this Agreement by Franchisee, (iii) any breach of Section 7C 6.12(c) hereof due to the willful closure or willful deidentification of Offices in excess of those permitted to be closed or deidentified pursuant to Section 7C6.12(c), (iv) any breach of Section 7C 6.12(c) hereof due to the closure or deidentification of in excess of 20 of the Offices permitted to be closed or deidentified pursuant to Section 7C6.12(c), (v) termination of this Agreement pursuant to Section 17D13.2(k), (vi) the affiliation by Franchisee with another real estate brokerage system (other than a system owned by Cendant), or (vii) any breach of this Agreement by Franchisee (other than a breach of Section 6G 5.8 hereof) that has, or is reasonably expected to have, a material adverse effect on the CENTURY 21 COLDWELL BANKER System, in each case other than clause (v) above after notice to Franchisee and a reasonable opportunity to cure (each, a "Liquidated Damages Event"), ------------------------ Franchisee shall immediately become ------------------------ obligated to pay Franchisor Franchisor's "lost future profits" (as hereinafter defined). For purposes of this Agreement "lost future profits" for an office shall consist of all royalty fees which Franchisee would have paid to Franchisor with respect to such office from the date of the Liquidated Damages Event through the earlier of the end of the then-then- current term of this Agreement, had there been no Liquidated Damages Event, and 25 years from the date of the Liquidated Damages Event. The parties acknowledge and agree [LOGO] COLDWELL BANKER that it would be impracticable and extremely difficult to calculate the actual amount of lost future profits payable by Franchisee, and that the following method of calculation represents a fair and reasonable estimate of foreseeable lost future profits: Lost future profits shall be calculated on an Office by Office basis by determining the average monthly royalty fee payment payable by the Franchisee to Franchisor for each such Office from the commencement date of this Agreement through the date of the Liquidated Damages Event, and multiplying these average amounts by the lesser of (i) the actual number of months (and any fraction thereof) remaining between the date of the Liquidated Damages Event and the end of the then-current term of this Agreement and (ii) 300. Lost future profits shall be payable with respect to all of Franchisee's Offices, provided that in the case of clauses (iii) and (iv) of the definition of Liquidated Damages Event, lost future profits shall only be payable with respect to the Offices closed or deidentified in violation of Section 7C 6.12(c) (including the 20 permitted to be closed or deidentified before clause (iv) becomes effective). Franchisee shall be entitled to a credit toward the total amount of lost future profits payable to Franchisor only for those amounts which are paid by Franchisee to Franchisor for each such Office pursuant to the provisions of Paragraph 18.B of this Agreement. Franchisee acknowledges that the lost future profits set forth in this section are fair and reasonable, in light of the fact that Franchisor's affiliate has participated in Franchisee's prior acquisitions and will participate in Franchisee's future acquisitions by purchasing the tradenames and trademarked operating names of the acquired entities with the intention of licensing such names, together with the names licensed hereunder, to Franchisee and the expectation of royalties in consideration of the use of such names, for the full term of this Agreement.

Additional Remedies for Breach. A. (a) In the event that prior to the expiration of any term hereofExpiration Date, there is (i) occurs a failure to pay royalties on a timely basis, (ii) a termination of this Agreement by Franchisee, (iii) any breach of Section 7C hereof due to the willful closure or willful deidentification of Offices in excess of those permitted to be closed or deidentified pursuant to Section 7C, (iv) any breach of Section 7C hereof due to the closure or deidentification of in excess of 20 of the Offices permitted to be closed or deidentified pursuant to Section 7C, (v) termination of this Agreement pursuant to Section 17D, 8.2(a) (vi) the affiliation by Franchisee with another real estate brokerage system (other than a system owned by Cendant), or (vii) any breach of this Agreement by Franchisee (other than a breach of Section 6G hereof) that has, or is reasonably expected to have, a material adverse effect on the CENTURY 21 System, in each case other than clause (v) above after notice to Franchisee and a reasonable opportunity to cure (each, a "Liquidated Damages Event"), Franchisee in each case after providing Newco with any written notice that may be provided in Section 8.2(a) (a "Liquidated Damages Event Notice") in accordance with Section 10.3, Newco shall immediately become ------------------------ obligated to pay Franchisor FranchisorCMS's "lost future profitsroyalties." (as hereinafter defined). For purposes of this Agreement Section 8.4, "lost future profitsroyalties" for an office shall consist of all royalty fees Royalty Payments which Franchisee Newco would have paid to Franchisor with respect to such office CMS from the date of the Liquidated Damages Event through the earlier of the end of the then-current term of entire Term originally contemplated by this Agreement, Agreement had there been no a Liquidated Damages Event, and 25 years from the date of the Liquidated Damages EventEvent not occurred. The parties Parties acknowledge and agree that it would be impracticable and extremely difficult to calculate the actual amount method of lost future profits royalties payable by FranchiseeNewco, and that the following method of calculation represents a fair and reasonable estimate of foreseeable lost future profits: royalties. "Lost future profits royalties" shall be calculated on an Office by Office basis by determining the average monthly royalty fee payment payable by the Franchisee to Franchisor for each such Office from the commencement date of this Agreement through the date of the Liquidated Damages Event, and multiplying these average amounts by the lesser of (i) the actual number of Gross Revenue generated by Newco for the twelve months (and any fraction thereof) remaining between preceding the date of the Liquidated Damages Event and multiplied by (ii) the Growth Rates for each remaining Contract Year following the Liquidated Damages Event (such product for each remaining Contract Year being referred to herein as an "Annual Gross Revenue Amount"). Each Annual Gross Revenue Amount shall then be multiplied by the applicable Gross Revenue Percentages as set forth on Exhibit A through the end of each Contract Year (such product of which being referred to herein as a "Yearly Royalty Amount"). The net present value of the then-current term aggregate amount of this Agreement and (ii) 300. Lost future profits all Yearly Royalty Amounts shall be payable with respect to all of Franchisee's Offices, provided that in the case of clauses (iii) and (iv) calculated assuming a 7% discount rate. The net present value of the definition of Liquidated Damages Event, Yearly Royalty Amounts shall equal the "lost future profits royalties" payable to CMS hereunder. The "Growth Rates" shall only be payable with respect to equal 15% for Contract Year Two through Contract Year Four; 8% for Contract Year Five through Contract Year Eleven, and 4% for Contract Year Twelve through Contract Year Forty. An example of the Offices closed or deidentified in violation calculation of Section 7C (including the 20 permitted to be closed or deidentified before clause (iv) becomes effective). Franchisee shall be entitled to a credit toward the total amount of "lost future profits payable to Franchisor only for those amounts which are paid by Franchisee to Franchisor for each such Office pursuant to the provisions of Paragraph 18.B of this Agreement. Franchisee acknowledges that the lost future profits royalties" is set forth in this section are fair and reasonable, in light of Section 8.4 to the fact that Franchisor's affiliate has participated in Franchisee's prior acquisitions and will participate in Franchisee's future acquisitions by purchasing the tradenames and trademarked operating names of the acquired entities with the intention of licensing such names, together with the names licensed hereunder, to Franchisee and the expectation of royalties in consideration of the use of such names, for the full term of this AgreementCendant Disclosure Schedule.