Penalty clause samples

18.7Penalty Clause. In the event the Employee acts in violation of any of the obligations under the articles 18 through 19 of this Agreement or Article 10 of the Employment Agreement (Confidentiality), the Employee shall (upon written objective substantiation of such violation), contrary to section 7:650 paragraphs 3, 4 and 5 Dutch Civil Code, without notice of default being required, forfeit to the Employer for each such violation, a penalty in the maximum amount of EUR 10.000,00 comprising of as well as a penalty of EUR 1.000,00 for each day such violation has taken place and continues. Alternatively, the Employer will be entitled to claim full damages. Employee acknowledges that certain economic benefits beyond the severance provisions of his Employment Agreement have been provided in this Agreement (including, the acceleration of certain equity grants), and the value of such additional benefits would be included as part of any claim for full damages.

On February 1, 2019, RDSA filed a reorganization proceeding. The creditors’ meeting resolution declared the admissibility of an unsecured claim in favor of the Company in the amount of $2,125,889,678.46 (principal plus interest), as well as the inadmissibility of the penalty clause. Edenor filed an ancillary motion for the review of its claim pursuant to section 37 of the Bankruptcy Law (“BL”) seeking the recognition of the whole alleged claim, which motion was dismissed.

Loans generally are funded at a fixed interest rate with a loan term of up to five years. Loans acquired are generally done so within the first six months of origination, and purchased at the current par value, which approximates fair value. As of March31, 2018, 53 (82%) of the partnership’s 65 loans (representing 97% of the aggregate principal of the partnership’s loan portfolio) had a loan term of five years or less from inception.The remaining loans have terms longer than five years.Substantially all loans are written without a prepayment-penalty clause. As of March31, 2018, 28 (43%) of the loans outstanding (representing 67% of the aggregate principal of the partnership’s loan portfolio) provide for monthly payments of interest only, with the principal due in full at maturity. The remaining loans require monthly payments of principal and interest, typically calculated on a 30 year amortization, with the remaining principal balance due at maturity.

On December 6, 2016, Group 10 formally notified the Company of the amount of the default penalty being charged under their default penalty clause. This penalty resulted in the amount of $348,000. The current amount as demanded by the note holder was recorded as interest expense.

Loans generally are funded at a fixed interest rate with a loan term of up to five years. At September 30, 2018, a larger percentage of the partnership’s secured loan portfolio is been secured by collateral located in the San Francisco Bay Area when compared to the secured loan portfolio at December 31, 2017 (68.4% and 63.3%, respectively).Loans acquired are generally done so within the first six months of origination, and purchased at the current par value, which approximates fair value. As of September30, 2018, 45 (80%) of the partnership’s 56 loans (representing 97% of the aggregate principal of the partnership’s loan portfolio) had a loan term of five years or less from inception.The remaining loans have terms longer than five years.Substantially all loans are written without a prepayment-penalty clause. As of September30, 2018, 24 (43%) of the loans outstanding (representing 69% of the aggregate principal of the partnership’s loan portfolio) provide for monthly payments of interest only, with the principal due in full at maturity. The remaining loans require monthly payments of principal and interest, typically calculated on a 30 year amortization, with the remaining principal balance due at maturity. In September 2018, one interest only secured loan, with principal of $5,355,000, was funded net of12 months of interest (approximately $455,000). Interest on this loan began accruing on October 1, 2018. In the event that this loan pays off in full prior to its scheduled maturity of September 30, 2019, the remaining unearned interest income will be applied as a reduction of principal. In October 2018, one loan with principal of approximately $14,000,000 paid off in full. The loan was scheduled to mature on January 1, 2019.

Loans generally are funded at a fixed interest rate with a loan term of up to five years. Loans acquired are generally done so within the first six months of origination, and purchased at the current par value, which approximates fair value. As of December 31, 2019, 39 (83%) of the partnership’s 47 loans (representing 97% of the aggregate principal of the partnership’s loan portfolio) had a loan term of five years or less from inception. The remaining loans have terms longer than five years. Substantially all loans are written without a prepayment-penalty clause. As of December 31, 2019, 15 (32%) of the loans outstanding (representing 63% of the aggregate principal of the partnership’s loan portfolio) provide for monthly payments of interest only, with the principal due in full at maturity. The remaining loans require monthly payments of principal and interest, typically calculated on a 30-year amortization, with the remaining principal due at maturity.

5.10 For the avoidance of dispute, the Parties hereto agree that, if any condition arises, at any time during the period from the date on which this Agreement is signed and takes effect to the Date of Transaction, under which the purchase price shall be returned while the Buyer does not know the appearance of such condition before paying any part of the purchase price and thus is unable, for any reason, to terminate this Agreement and/or take back any part of the purchase price that the Buyer has paid to the Transferors, that the Transferors and the Guarantor will be deemed to have seriously breached related Warranties and must pay the Buyer liquidated damages equal to the purchase price paid by the Buyer to the Transferors; the Parties hereto agree that the liquidated damages in this Article 5.9 are not the compensation in the penalty clause. All rights of the Buyer related to this Article 5.9 shall remain effective until the date permitted by law to the largest extent.

A contract that provides the same liquidated damages for any breach is “unreasonable and a violation of the principle of just compensation.” See BB/Naperville LP v. Worchell, No. 94-10075, 1994 WL 500030, *7 (5th Cir. 1994) (citing Stewart v. Basey, 245 S.W.2d 484, 487 (Tex. 1952). Here, the same Termination Fee applies in the context of a “Company Change of Control,” an uncured default by Ashford Prime, or Plaintiffs’ “unsatisfactory performance” or imposition of fees that are “not fair.” (Am. Compl., Ex. 1 §§ 12(e) & 12(f)) This means the Termination Fee is an unenforceable penalty clause. See BB/Naperville LP, 1994 WL 500030 at *7 (failure to distinguish between lesser and greater breaches of the agreement means provision is unenforceable penalty).