Declaration of an Early Termination Date and Calculation of Settlement Amounts. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (the “Non-Defaulting Party”) shall have the right: (i) to designate a day, no earlier than the day such notice is effective and no later than twenty (20) days after such notice is effective, as an early termination date (“Early Termination Date”) to accelerate all amounts owing between the Parties and to liquidate and terminate all, but not less than all, Transactions (each referred to as a “Terminated Transaction”) between the Parties, (ii) withhold any payments due to the Defaulting Party under this Agreement and (iii) suspend performance. The Non-Defaulting Party shall be entitled to a payment upon termination of this Agreement as the result of an Event of Default (the “Termination Payment”) which shall be the aggregate of the Market Value and Termination Costs calculated in accordance with Section 5.3 which shall be paid (net of any payments withheld by the Non-Defaulting Party pursuant to Section 5.2(ii) above) together with interest thereon, no later than one hundred eighty (180) days after receipt of written notice of an Early Termination Date. The Termination Payment shall accrue interest at the Interest Rate during the period between receipt of written notice of an Early Termination Date and payment of the Termination Payment. Prior to issuance of such notice of termination to the Defaulting Party, the Non-Defaulting Party may exercise any remedies available to it at law or otherwise, including, but not limited to, the right to seek injunctive relief to prevent irreparable injury to the Non-Defaulting Party. Notwithstanding the other provisions of this Agreement, if the Non-Defaulting Party has the right to liquidate or terminate all obligations arising under this Agreement under the provisions of this Article 5 because the Defaulting Party is Bankrupt, then this Agreement and the Transaction shall automatically terminate, without notice, as if the Early Termination Date was the day immediately preceding the events listed in Section 5.1.
Appears in 5 contracts
Samples: Master Power Purchase and Sale Agreement, Master Agreement, Master Power Purchase and Sale Agreement
Declaration of an Early Termination Date and Calculation of Settlement Amounts. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (the “Non-Defaulting Party”) shall have the right: right (i) to designate a day, no earlier than the day such notice is effective and no later than twenty (20) days [***] after such notice is effective, as an early termination date (the “Early Termination Date”) to accelerate all amounts owing between the Parties and to liquidate and terminate all, but not less than all, all Transactions (each referred to as a “Terminated Transaction”) between the Parties, (ii) withhold any payments due to the Defaulting Party under this Agreement and (iii) suspend performance. ***Confidential material omitted and filed separately with the Securities & Exchange Commission. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for each such Terminated Transaction as of the Early Termination Date (or, to the extent that in the reasonable opinion of the Non-Defaulting Party certain of such Terminated Transactions are commercially impracticable to liquidate and terminate or may not be entitled to a payment liquidated and terminated under applicable Law on the Early Termination Date, then each such Transaction shall be terminated as soon thereafter as reasonably practicable, and upon termination of this Agreement as the result of an Event of Default (the “Termination Payment”) which shall be deemed to be a Terminated Transaction and the aggregate of the Market Value and Termination Costs Payment payable in connection with all such Transactions shall be calculated in accordance with Section 5.3 which 8.3 below). The Gains and Losses for each Terminated Transaction shall be paid (net determined by calculating the amount that would be incurred or realized to replace or to provide the economic equivalent of the remaining payments or deliveries in respect of that Terminated Transaction. [***] Notwithstanding the foregoing, upon the loss of Constellation’s status as a QSE at any payments withheld by the Non-Defaulting Party pursuant to Section 5.2(ii) above) together with interest thereon, no later than one hundred eighty (180) days after receipt of written notice of an Early Termination Date. The Termination Payment shall accrue interest at the Interest Rate time during the period between receipt QSE Services Term, First Choice shall have the option of written notice of an Early Termination Date and payment of the Termination Payment. Prior either terminating this Agreement entirely or terminating only Constellation’s obligation to issuance of such notice of termination to the Defaulting Party, the Non-Defaulting Party may exercise any remedies available to it at law or otherwise, including, but not limited to, the right to seek injunctive relief to prevent irreparable injury to the Non-Defaulting Party. Notwithstanding the other provisions of act as its QSE under this Agreement, if the Non-Defaulting Party has the right to liquidate or terminate all obligations arising under this Agreement under the provisions of this Article 5 because the Defaulting Party is Bankrupt, then this Agreement and the Transaction shall automatically terminate, without notice, as if the Early Termination Date was the day immediately preceding the events listed in Section 5.1.
Appears in 1 contract
Samples: Power Supply and Service Agreement (TNP Enterprises Inc)
Declaration of an Early Termination Date and Calculation of Settlement Amounts. If an Event of Default with respect to a Defaulting Party shall have occurred and be continuing, the other Party (the “Non-Defaulting Party”) shall have the right: right (i) to designate a day and time of such day, no earlier than the day such notice is effective and no later than twenty (20) 20 days after such notice is effective, as an early termination date (“Early Termination Date”) ), to accelerate all amounts owing between the Parties and to liquidate and terminate all, but not less than all, only those Transactions between the Parties for which the Defaulting Party’s performance or failure to perform constitutes an Event of Default pursuant to Section 5.1 of the Master Agreement (each referred to as a “Terminated Transaction”) between the Parties), (ii) withhold any payments due to the Defaulting Party under this Agreement and (iii) suspend performance. The Non-Defaulting Party shall be entitled to calculate, in a payment upon termination of this Agreement commercially reasonable manner, a Settlement Amount for each such Terminated Transaction as the result of an Event of Default (the “Termination Payment”) which shall be the aggregate of the Market Value and Early Termination Costs calculated Date (or, to the extent that in accordance with Section 5.3 which shall be paid (net the reasonable opinion of any payments withheld by the Non-Defaulting Party pursuant certain of such Terminated Transactions are commercially impracticable to Section 5.2(ii) above) together with interest thereon, no later than one hundred eighty (180) days after receipt of written notice of an liquidate and terminate or may not be liquidated and terminated under applicable law on the Early Termination Date, as soon thereafter as is reasonably practicable). The Termination Payment Non-Defaulting Party shall accrue interest determine its Gains and Losses by determining the Market Quotation Average Price for each Terminated Transaction. In the event the Non-Defaulting Party is not able, after commercially reasonable efforts, to obtain the Market Quotation Average Price with respect to any Terminated Transaction, then the Non-Defaulting Party shall calculate its Gains and Losses for such Terminated Transaction in a commercially reasonable manner by calculating the arithmetic mean of at least three (3) Broker or Index Quotes for transactions substantially similar to each Terminated Transaction. Such Broker or Index Quotes must be obtained assuming that the Party obtaining the quote will provide sufficient credit support for the proposed transaction. In the event the Non-Defaulting Party is not able, after commercially reasonable efforts to obtain at least three (3) Broker or Index Quotes with respect to any Terminated Transaction, then the Non-Defaulting Party shall calculate its Gains and Losses for such Terminated Transaction in a commercially reasonable manner by reference to information supplied to it by one or more third parties including, without limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the relevant markets. Third parties supplying such information may include, without limitation, dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information; provided, however, that such third parties shall not be Affiliates of either Party. Only in the event the Non-Defaulting Party is not able, after using commercially reasonable efforts, to obtain such third party information, then the Non-Defaulting Party shall calculate its Gains and Losses for such Terminated Transaction in a commercially reasonable manner using relevant market data it has available to it internally.” (4) Section 5.3 is amended by inserting “plus, at the Interest Rate during the period between receipt of written notice of an Early Termination Date and payment option of the Termination Payment. Prior to issuance Non-Defaulting Party, any cash or other form of such notice of termination security then available to the Defaulting Party Pursuant to Article Eight,” between the words “that are due to the Non-Defaulting Party,” and “plus any and all other amounts” in the sixth line. (5) The following is added to the end of Section 5.4: “Notwithstanding any provision to the contrary contained in this Agreement, the Non-Defaulting Party may exercise shall not be required to pay to the Defaulting Party any remedies available amount under Article 5 until the Non-Defaulting Party receives confirmation satisfactory to it at law or otherwise, including, but not limited to, in its reasonable discretion (which may include an opinion of its counsel) that all other obligations of any kind whatsoever of the right Defaulting Party to seek injunctive relief to prevent irreparable injury make any payments to the Non-Defaulting Party. Notwithstanding the other provisions Party or any of this Agreement, if the Non-Defaulting Party has the right to liquidate or terminate all obligations arising its Affiliates under this Agreement under the provisions or otherwise which are due and payable as of this Article 5 because the Defaulting Party is Bankrupt, then this Agreement and the Transaction shall automatically terminate, without notice, as if the Early Termination Date was have been fully and finally performed.” (F) Article Ten: Miscellaneous. Amend Article Ten as follows: (1) Section 10.2(i) is amended as follows: the day immediately preceding phrase “… and is qualified to conduct its business in each jurisdiction in which it will perform a Transaction.” is added to the events listed end of 10.2(i); (2) Section 10.2(vi) is amended by deleting the phrase “or any of its Affiliates”. (3) Section 10.2(ix) is amended by adding the phrase “it is an ‘eligible contract participant’ as defined in Section 5.11(a)(18) of the Commodity Exchange Act, as amended, and it is an ‘eligible commercial entity’ as defined in Section 1(a)(17) of the Commodity Exchange Act, as amended”. (4) Section 10.2(x) is amended by replacing “and” in the third line with a comma and adding the following at the end of the section: “and it intends to physically settle each Transaction such that if the ‘commodity option’ (as defined in the Commodity Exchange Act, as amended) associated with a Transaction is exercised, the option would result in the sale of an ‘exempt commodity’ (as defined in Section 1(a)(20) of the Commodity Exchange Act, as amended) for immediate or deferred delivery.” (5) Section 10.5 is amended as follows: (a) the phrase “may be withheld in the exercise of its sole discretion” is deleted and replaced with “which consent may not be unreasonably withheld”; and (b) replace the word “affiliate” with the defined term “Affiliate.” (6) Section 10.6 is amended by changing “NEW YORK” to “CALIFORNIA” in the first sentence. (7) Section 10.10 is deleted in its entirety. (8) Section 10.11 is deleted in its entirety and replaced with the following: “10.11
Appears in 1 contract
Declaration of an Early Termination Date and Calculation of Settlement Amounts. If an Event of Default with respect to a Defaulting Party shall have has occurred and be is continuing, the other Party (the “"Non-Defaulting Party”") shall have the right: right upon written notice (the "Termination Notice") to the Non-Defaulting Party (i) to designate a day, no earlier than the day such notice the Termination Notice is effective and no later than twenty (20) days 30 Days after such notice the Termination Notice is effective, as an early termination date (“"Early Termination Date”") to accelerate all amounts owing between terminate this Agreement with respect to the Parties and Facility or Facilities affected by such Event of Default only; provided, however, that if such Event of Default is cured before the Early Termination Date, such Termination Notice shall cease to liquidate and terminate all, but not less than all, Transactions (each referred to as a “Terminated Transaction”) between the Partiesbe effective, (ii) withhold any payments due to the Defaulting Party under this Agreement and with respect to such Facility or Facilities, (iii) suspend performanceperformance with respect to such Facility or Facilities, and (iv) seek specific enforcement of this Agreement, the Parties hereby agreeing that the covenants and obligations in this Agreement may be specifically enforced regardless of whether or not there is an adequate remedy available at law. If a Non-Defaulting Party is permitted to and elects to terminate this Agreement with respect to a Facility or Facilities on account of an Event of Default, it shall calculate, in a commercially reasonable manner, a Termination Payment as of the Early Termination Date. The Gams and Losses resulting from termination of this Agreement with respect to such Facility or Facilities shall be determined by calculating the amount that would be incurred or realized to replace or to provide the economic equivalent of the remaining payments or deliveries in respect of the purchase and sale of Gas and Power Products contemplated by this Agreement. The Non-Defaulting Party shall be entitled (or its agent) may determine its Gains and Losses by reference to a payment upon termination of this Agreement as the result of an Event of Default (the “Termination Payment”) which shall be the aggregate of the Market Value and Termination Costs calculated in accordance with Section 5.3 which shall be paid (net of any payments withheld by the Non-Defaulting Party pursuant to Section 5.2(ii) above) together with interest thereon, no later than one hundred eighty (180) days after receipt of written notice of an Early Termination Date. The Termination Payment shall accrue interest at the Interest Rate during the period between receipt of written notice of an Early Termination Date and payment of the Termination Payment. Prior to issuance of such notice of termination to the Defaulting Party, the Non-Defaulting Party may exercise any remedies information either available to it at law internally or otherwise, supplied by one or more third parties including, but not limited towithout limitation, quotations (either firm or indicative) of relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data in the right to seek injunctive relief to prevent irreparable injury to the Non-Defaulting Partyrelevant markets. Notwithstanding the other provisions of this Agreement, if the Non-Defaulting Party has the right to liquidate or terminate all obligations arising under this Agreement under the provisions of this Article 5 because the Defaulting Party is Bankrupt, then this Agreement and the Transaction shall automatically terminateThird parties supplying such information may include, without noticelimitation, as if dealers in the Early Termination Date was relevant markets, end-users of the day immediately preceding the events listed in Section 5.1relevant product, information vendors and other sources of market information.
Appears in 1 contract
Samples: Sale and Power Purchase Agreement (Delta Energy Center, LLC)
