Common use of Final Damages Clause in Contracts

Final Damages. At any time after this Lease has been terminated pursuant to this Article 20, whether or not Lessor shall have collected any damages under Section 20.5, Lessor shall be entitled to recover from Lessee and Lessee will pay to Lessor within THIRTY (30) days after receipt of demand from time to time, as and for agreed-upon final damages for the loss of Lessor's bargain (and not as a penalty), and in lieu of all Basic Rent beyond the date of such demand (it being agreed that it would be impracticable to fix actual damages) at Lessor's option: (a) an amount equal to the excess of (i) the present value on the date such demand is made of all Basic Rent that would be payable under this Lease as of the date of such demand for what would be the unexpired Term of this Lease in the absence of such termination, over (ii) the present value on the date such demand is made of the Fair Market Rental for the Leased Property for what would be the unexpired Term of this Lease, which present value shall in each case be determined by the application of the Discount Rate, plus the amount of all unpaid Basic Rent due and payable hereunder prior to and all Additional Rent due and payable hereunder prior to and including, or relating to periods ending on or prior to, the date on which the amount payable pursuant to this Section 20.6(a) is actually paid; or (b) the sum of (i) the Stipulated Loss Value calculated as of the Stipulated Loss Value Determination Date immediately succeeding the date on which payment thereof is made, plus (ii) all Additional Rent due and payable up to the date of payment, plus (iii) (x) during the Base Lease Term, all unpaid Basic Rent due and payable prior to the date of payment, and (y) during any Renewal Term, all unpaid Basic Rent due and payable on or prior to the date of payment, which shall include any accrued and unpaid Basic Rent, payable for the period from the preceding Basic Rent Payment Date to the date of payment, prorated for such period on a per diem basis; or (c) if Lessor shall sell and convey Lessor's interest in the Leased Property to any other Person pursuant to a bona fide, arm's-length, fair market transaction, Lessor shall be entitled to recover from Lessee an amount equal to the sum of (i) the Stipulated Loss Value calculated as of the Stipulated Loss Value Determination Date immediately succeeding the date on which such sale and conveyance occurs, plus (ii) the amount of all Additional Rent due and payable and other sums accrued hereunder to and including, or relating to periods ending on or prior to, such date of such sale or conveyance, plus (iii) during the Base Lease Term, all unpaid Basic Rent due and payable prior to such date of such sale or conveyance, plus (iv) during any Renewal Term, all unpaid Basic Rent due and payable on or prior to such date of such sale or conveyance, which shall include any accrued and unpaid Basic Rent, payable for the period from the preceding Basic Rent Payment Date to such date of such sale or conveyance, prorated for such period on a per diem basis, minus (v) the amount of the consideration received by Lessor in connection with such sale, less all expenses incurred in connection with such sale. In addition to any sums payable pursuant to Section 20.6(a), (b) or (c), as the case may be, Lessee shall be liable for, and agrees to pay as Additional Rent, all reasonable legal fees and other reasonable costs and expenses incurred by Lessor by reason of the occurrence of any Event of Default or the exercise of Lessor's remedies with respect thereto, including all reasonable costs and expenses incurred in connection with the surrender of the Leased Property or repossession thereof or in placing the Leased Property in the condition required by this Lease. In the event that Lessor terminates this Lease during the Base Lease Term pursuant to any provision of this Article 20 pursuant to which Stipulated Loss Value is not paid, Lessee shall pay to Lessor as Basic Rent through the Expiration Date, the amount, if any, set forth on Schedule IV hereto opposite the Stipulated Loss Value Determination Date under the caption "Basic Rent Amount as of Stipulated Loss Value Determination Date" or, if such amount is a negative number, Lessor shall pay to Lessee as a refund of Basic Rent allocated to any portion of a Lease Period ending on or after such Expiration Date, such amount, provided that at any time after the Notes have been paid in full, Lessor shall be entitled to set off its obligation to make any such refund against any amount due to Lessor or Owner Participant from Lessee hereunder or under any other Operative Agreement. If the Lease terminates during the Base Lease Term pursuant to any provision of this Article 20 on a date that is not a Stipulated Loss Value Determination Date, to the extent the amounts payable do not precisely reflect the excess of Basic Rent allocated over Basic Rent paid or the excess of Basic Rent paid over Basic Rent allocated, whichever the case may be, as of the date on which Basic Rent ceases to accrue, such applicable amount shall be further increased or decreased by the amount necessary to ensure that the aggregate amount of Basic Rent paid equals the aggregate amount of Basic Rent allocated as of the date on which Basic Rent ceases to accrue; provided, further, that at any time after the Notes have been paid in full, Lessor shall be entitled to set off its obligation to make any such refund against any amount due to Lessor or Owner Participant from Lessee hereunder or under any other Operative Agreement. In the event that Lessor terminates this Lease during any Renewal Term pursuant to any provision of this Article 20 pursuant to which Stipulated Loss Value is not paid, Lessee shall pay to Lessor any accrued and unpaid Basic Rent payable for the period from the preceding Basic Rent Payment Date through the Expiration Date plus all other unpaid Basic Rent and Additional Rent due and payable on or prior to such date.

Final Damages. At any time after this Lease has been terminated pursuant to this Article 20any such expiration, termination or repossession, whether or not Lessor shall have collected any current damages under Section 20.5as aforesaid, Lessor shall be entitled to recover from Lessee and Lessee will pay to Lessor within THIRTY (30) days after receipt of demand from time to timeon demand, as and for agreed-upon liquidated and agreed final damages for the loss of LessorLessee's bargain (and not as a penalty), default and in lieu of all current damages beyond the date of such demand, an amount equal to the present value of the excess, if any, of (a) all Basic Rent beyond and Additional Rent which would be payable under this Lease from the date of such demand (or, if it being agreed that it be earlier, the date to which Lessee shall have satisfied in full its obligations under Section 24.2 to pay current damages) for what would be impracticable the then unexpired Lease Term in the absence of such expiration, termination or repossession over (b) the then fair net rental value of the Property for the same period, such present value to fix actual damages) at Lessor's option: (a) an amount be determined using a discount rate equal to the excess Average Life Treasury Rate, In the event a dispute arises between the parties as to the then fair net rental value of (i) the present Property, such fair net rental value on the date such demand is made of all Basic Rent that would shall be payable under this Lease determined as of the date of calculation by an appraiser appointed by Lessor in its sole discretion who is competent, qualified by training and experience in appraising timberlands, disinterested and independent and who is a member in good standing of the Association of Consulting Foresters. All costs, fees and expenses of any such demand appraiser appointed by Lessor to determine the fair net rental value of the Property shall be paid by Lessee. Lessee will also pay to Lessor all reasonable expenses incurred by Lessor in connection with the reletting of the Property including, without limitation, repossession costs, brokerage commissions, accounting expenses, attorneys' fees and expenses, employees' expenses, promotional expenses, and expenses of preparation for what would be such reletting, Upon the unexpired Term payment of such final damages, this Lease in the absence if not already terminated, shall be deemed terminated, If any statute or rule of such termination, over (ii) the present value on the date such demand is made of the Fair Market Rental for the Leased Property for what would be the unexpired Term of this Lease, which present value law shall in each case be determined by the application of the Discount Rate, plus validly limit the amount of all unpaid Basic Rent due and payable hereunder prior such liquidated final damages to and all Additional Rent due and payable hereunder prior to and including, or relating to periods ending on or prior to, the date on which less than the amount payable pursuant to this Section 20.6(a) is actually paid; or (b) the sum of (i) the Stipulated Loss Value calculated as of the Stipulated Loss Value Determination Date immediately succeeding the date on which payment thereof is made, plus (ii) all Additional Rent due and payable up to the date of payment, plus (iii) (x) during the Base Lease Term, all unpaid Basic Rent due and payable prior to the date of payment, and (y) during any Renewal Term, all unpaid Basic Rent due and payable on or prior to the date of payment, which shall include any accrued and unpaid Basic Rent, payable for the period from the preceding Basic Rent Payment Date to the date of payment, prorated for such period on a per diem basis; or (c) if Lessor shall sell and convey Lessor's interest in the Leased Property to any other Person pursuant to a bona fide, arm's-length, fair market transactionabove agreed upon, Lessor shall be entitled to recover from Lessee an the maximum amount equal to the sum allowable under such statute or rule of (i) the Stipulated Loss Value calculated as of the Stipulated Loss Value Determination Date immediately succeeding the date on which such sale and conveyance occurs, plus (ii) the amount of all Additional Rent due and payable and other sums accrued hereunder to and including, or relating to periods ending on or prior to, such date of such sale or conveyance, plus (iii) during the Base Lease Term, all unpaid Basic Rent due and payable prior to such date of such sale or conveyance, plus (iv) during any Renewal Term, all unpaid Basic Rent due and payable on or prior to such date of such sale or conveyance, which shall include any accrued and unpaid Basic Rent, payable for the period from the preceding Basic Rent Payment Date to such date of such sale or conveyance, prorated for such period on a per diem basis, minus (v) the amount of the consideration received by Lessor in connection with such sale, less all expenses incurred in connection with such sale. In addition to any sums payable pursuant to Section 20.6(a), (b) or (c), as the case may be, Lessee shall be liable for, and agrees to pay as Additional Rent, all reasonable legal fees and other reasonable costs and expenses incurred by Lessor by reason of the occurrence of any Event of Default or the exercise of Lessor's remedies with respect thereto, including all reasonable costs and expenses incurred in connection with the surrender of the Leased Property or repossession thereof or in placing the Leased Property in the condition required by this Lease. In the event that Lessor terminates this Lease during the Base Lease Term pursuant to any provision of this Article 20 pursuant to which Stipulated Loss Value is not paid, Lessee shall pay to Lessor as Basic Rent through the Expiration Date, the amount, if any, set forth on Schedule IV hereto opposite the Stipulated Loss Value Determination Date under the caption "Basic Rent Amount as of Stipulated Loss Value Determination Date" or, if such amount is a negative number, Lessor shall pay to Lessee as a refund of Basic Rent allocated to any portion of a Lease Period ending on or after such Expiration Date, such amount, provided that at any time after the Notes have been paid in full, Lessor shall be entitled to set off its obligation to make any such refund against any amount due to Lessor or Owner Participant from Lessee hereunder or under any other Operative Agreement. If the Lease terminates during the Base Lease Term pursuant to any provision of this Article 20 on a date that is not a Stipulated Loss Value Determination Date, to the extent the amounts payable do not precisely reflect the excess of Basic Rent allocated over Basic Rent paid or the excess of Basic Rent paid over Basic Rent allocated, whichever the case may be, as of the date on which Basic Rent ceases to accrue, such applicable amount shall be further increased or decreased by the amount necessary to ensure that the aggregate amount of Basic Rent paid equals the aggregate amount of Basic Rent allocated as of the date on which Basic Rent ceases to accrue; provided, further, that at any time after the Notes have been paid in full, Lessor shall be entitled to set off its obligation to make any such refund against any amount due to Lessor or Owner Participant from Lessee hereunder or under any other Operative Agreement. In the event that Lessor terminates this Lease during any Renewal Term pursuant to any provision of this Article 20 pursuant to which Stipulated Loss Value is not paid, Lessee shall pay to Lessor any accrued and unpaid Basic Rent payable for the period from the preceding Basic Rent Payment Date through the Expiration Date plus all other unpaid Basic Rent and Additional Rent due and payable on or prior to such datelaw.