Common use of Liquidated and Other Damages Clause in Contracts

Liquidated and Other Damages. (a) Upon the entry of a final non-appealable order from a court of competent jurisdiction that a Liquidated Damages Event has occurred, the Company shall pay to the Advisor the Uninvested Amount plus an amount in cash equal to the Liquidated Damages Amount. The Parties intend that the payment of the Liquidated Damages Amount constitute compensation, and not a penalty. The Parties acknowledge and agree that the occurrence of a Liquidated Damages Event would deprive the Advisor of the benefits that the Advisor could reasonably anticipate from full performance by the Company of its obligations hereunder and that the damages incurred by the Advisor if a Liquidated Damages Event occurs are uncertain and incapable or very difficult to accurately estimate, and that the Liquidated Damages Amount is a reasonable estimate of the anticipated or actual harm caused by a Liquidated Damages Event and not a penalty. The Parties agree and acknowledge that without the agreements embodied by this Section 19, the Parties would not enter into this Amended Agreement. Upon payment by the Company of the (i) Liquidated Damages Amount less any Outstanding Judgment and, to the extent not otherwise included in the Liquidated Damages Amount, (ii) (A) the Uninvested Amount; plus (B) all costs and expenses reimbursable pursuant to Section 5 through termination due to the Liquidated Damages Event; plus (C) the Key Money Clawback Amount, pursuant to Section 16.3; plus (D) any other amounts then due and payable hereunder including but not limited to any interest that has accrued but not been paid pursuant to Section 19(b) to the Advisor, the Parties shall have no further obligations hereunder, and this Amended Agreement shall be terminated; provided that during the pendency of any action (including any appeals related thereto) brought by the Advisor claiming that a Liquidated Damages Event has occurred, the Company shall continue to pay or reimburse the Advisor all amounts due or reimbursable hereunder including any obligations imposed on the Company under Section 12 hereof. (b) If the Company fails to timely pay any amount due pursuant to Section 5, Section 6, Section 12 or Section 19(a) hereof, the Company shall pay interest at a rate equal to 8% per annum, increasing 200 basis points at the end of each 90 day period that amounts remain outstanding (or such lesser rate as is the maximum permitted by applicable law) and compounded annually on the amounts due and payable for the period from the date the amount became due and payable through the date the Advisor receives payment for all outstanding amounts including interest thereon. (c) The Party that prevails in any Proceeding to enforce rights and obligations under this Amended Agreement shall be entitled to be reimbursed by the other Party for the reasonable fees and expenses of counsel in connection with the Proceeding. (d) All rights and remedies provided in this Amended Agreement are cumulative and not exclusive, and the exercise by the Advisor or the Company, as applicable, of any right or remedy does not preclude the exercise of any other right or remedy, at law or in equity, that may now or subsequently be available to the Advisor or the Company.

Liquidated and Other Damages. (a) Upon the entry of a final non-appealable order from a court of competent jurisdiction that a Liquidated Damages Event has occurred, the Company shall pay to the Advisor the Uninvested Amount plus an amount in cash equal to the Liquidated Damages Amount. The Parties parties intend that the payment of the Liquidated Damages Amount constitute constitutes compensation, and not a penalty. The Parties parties acknowledge and agree that the occurrence of a Liquidated Damages Event would deprive the Advisor of the benefits that the Advisor could reasonably anticipate from full performance by the Company of its obligations hereunder and that the damages incurred by the Advisor if a Liquidated Damages Event occurs are uncertain and incapable or very difficult to accurately estimate, and that the Liquidated Damages Amount is a reasonable estimate of the anticipated or actual harm caused by a Liquidated Damages Event and not a penalty. The Parties parties agree and acknowledge that without the agreements embodied by this Section 1914, the Parties parties would not enter into this Amended Agreement. Upon payment by the Company of the (i) Liquidated Damages Amount less any Outstanding Judgment outstanding amounts owed by the Advisor to the Company as a result of a judgment contemplated by Section 12(c) and, to the extent not otherwise included in the Liquidated Damages Amount, (ii) (A) the Uninvested Amount; plus (B) all costs and expenses reimbursable pursuant to Section 5 through termination due to the Liquidated Damages Event; plus (C) the Key Money Clawback Amount, pursuant to Section 16.3; plus (DB) any other amounts then due and payable hereunder including but not limited to any interest that has accrued but not been paid pursuant to Section 19(b14(b) to the Advisor, the Parties parties shall have no further obligations hereunder, and this Amended Agreement shall be terminated; provided that during the pendency of any action (including any appeals related thereto) brought by the Advisor claiming that a Liquidated Damages Event has occurred, the Company shall continue to pay or reimburse the Advisor all amounts due or reimbursable hereunder including any obligations imposed on the Company under Section 12 hereof. (b) If the Company fails to timely pay any amount due pursuant to Section 5, Section 6, Section 12 or Section 19(a14(a) hereof, the Company shall pay interest at a rate equal to eight percent (8% %) per annum, increasing 200 basis points at the end of each 90 day period that amounts remain outstanding (or such lesser rate as is the maximum permitted by applicable law) and compounded annually on the amounts due and payable for the period from the date the amount became due and payable through the date the Advisor receives payment for all outstanding amounts including interest thereon. (c) The Party party that prevails in any Proceeding to enforce rights and obligations under this Amended Agreement shall be entitled to be reimbursed by the other Party party for the reasonable fees and expenses of counsel in connection with the Proceeding. (d) All rights and remedies provided in this Amended Agreement are cumulative and not exclusive, and the exercise by the Advisor or the Company, as applicable, of any right or remedy does not preclude the exercise of any other right or remedy, at law or in equity, that may now or subsequently be available to the Advisor or the Company.

Liquidated and Other Damages. (a) Upon the entry of a final non-appealable order from a court of competent jurisdiction that a Liquidated Damages Event has occurred, the Company shall pay to the Advisor the Uninvested Amount plus an amount in cash equal to the Liquidated Damages Amount. The Parties parties intend that the payment of the Liquidated Damages Amount constitute constitutes compensation, and not a penalty. The Parties parties acknowledge and agree that the occurrence of a Liquidated Damages Event would deprive the Advisor of the benefits that the Advisor could reasonably anticipate from full performance by the Company of its obligations hereunder and that the damages incurred by the Advisor if a Liquidated Damages Event occurs are uncertain and incapable or very difficult to accurately estimate, and that the Liquidated Damages Amount is a reasonable estimate of the anticipated or actual harm caused by a Liquidated Damages Event and not a penalty. The Parties parties agree and acknowledge that without the agreements embodied by this Section 1914, the Parties parties -40- would not enter into this Amended Agreement. Upon payment by the Company of the (i) Liquidated Damages Amount less any Outstanding Judgment outstanding amounts owed by the Advisor to the Company as a result of a judgment contemplated by Section 12(c) and, to the extent not otherwise included in the Liquidated Damages Amount, (ii) (A) the Uninvested Amount; plus (B) all costs and expenses reimbursable pursuant to Section 5 through termination due to the Liquidated Damages Event; plus (C) the Key Money Clawback Amount, pursuant to Section 16.3; plus (DB) any other amounts then due and payable hereunder including but not limited to any interest that has accrued but not been paid pursuant to Section 19(b14(b) to the Advisor, the Parties parties shall have no further obligations hereunder, and this Amended Agreement shall be terminated; provided that during the pendency of any action (including any appeals related thereto) brought by the Advisor claiming that a Liquidated Damages Event has occurred, the Company shall continue to pay or reimburse the Advisor all amounts due or reimbursable hereunder including any obligations imposed on the Company under Section 12 hereof. (b) If the Company fails to timely pay any amount due pursuant to Section 5, Section 6, Section 12 or Section 19(a14(a) hereof, the Company shall pay interest at a rate equal to eight percent (8% %) per annum, increasing 200 basis points at the end of each 90 day period that amounts remain outstanding (or such lesser rate as is the maximum permitted by applicable law) and compounded annually on the amounts due and payable for the period from the date the amount became due and payable through the date the Advisor receives payment for all outstanding amounts including interest thereon. (c) The Party party that prevails in any Proceeding to enforce rights and obligations under this Amended Agreement shall be entitled to be reimbursed by the other Party party for the reasonable fees and expenses of counsel in connection with the Proceeding. (d) All rights and remedies provided in this Amended Agreement are cumulative and not exclusive, and the exercise by the Advisor or the Company, as applicable, of any right or remedy does not preclude the exercise of any other right or remedy, at law or in equity, that may now or subsequently be available to the Advisor or the Company.