Calculation of Termination Payment. (a) The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. Third parties supplying information for purposes of the calculation of Gains or Losses may include dealers in the relevant markets, end-users of the relevant product, information vendors and other sources of market information. If the Non-Defaulting Party uses the market price for a comparable transaction to determine the Gains or Losses, such price should be determined by using the average of market quotations provided by three (3) or more bona fide unaffiliated market participants. If the number of available quotes is three, then the average of the three quotes shall be deemed to be the market price. Where a quote is in the form of bid and ask prices, the price that is to be used in the averaging is the midpoint between the bid and ask price. The quotes shall be obtained in a commercially reasonable manner and shall be: (i) for a like amount, (ii) of the same Product, (iii) at the same Delivery Point, and (iv) for the remaining Delivery Term. Regardless of the method chosen by the Non-Defaulting Party to calculate the Settlement Amount, the Settlement Amount must still be reasonable under the circumstances.
(b) If the Non-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of the Terminated Transaction, the Settlement Amount shall be zero.
(c) The Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount.
Calculation of Termination Payment. If an Early Termination Date has been declared, the Non-Defaulting Party shall calculate, in a commercially reasonable manner, the Termination Payment in accordance with this Section 10.3.
Calculation of Termination Payment. Upon termination of this Agreement pursuant to Section 17.3 or Section 17.4, the Non-Defaulting Party shall calculate, in a commercially reasonable manner, the Losses (or Gains) and Costs, incurred as a result of the termination of this Agreement, and as a result of the termination of the Provider as the standard offer provider. The Non-Defaulting Party shall set off (i) all such Gains, plus all other amounts due to the Defaulting Party under all transactions contemplated hereunder and the Provider's SOP Obligations, against (ii) all such Losses and Costs, plus all other amounts due from the Defaulting Party under the all transactions contemplated hereunder and the Provider's SOP Obligations, so that all such amounts shall be netted to a single liquidated amount (the "Termination Payment") payable by one Party to the other. The Termination Payment shall be due to or due from the Non-Defaulting Party as appropriate. The Parties agree that in calculating its Gains, Losses and Costs, the T&D shall assume for purposes of such calculations that it will be required by the MPUC to provide replacement SOS for the remainder of the term for which Provider would have been obligated to provide SOS had this Agreement not been liquidated and terminated. The quantities to be used in calculating the termination payment shall be the actual historic usage over the comparable prior year period, as reasonably adjusted for known changes in the load, as the proxy for the expected usage over the remaining term of this Agreement.
Calculation of Termination Payment. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for the Terminated Transaction as of the Early Termination Date. The Non-Defaulting Party shall use the market price for a comparable transaction to determine the Gains or Losses and such price should be determined by using the average closing market price for Renewable Energy Credits (as published in an index for a liquid traded market for Renewable Energy Credits which includes California) for the thirty (30) days preceding the date of the Notice declaring an Event of Default triggering the Early Termination Date; provided that if a liquid traded market for Renewable Energy Credits does not exist at the time of the calculation of a Settlement Amount, then the price of Renewable Energy Credits should be determined by using the average of market quotations provided by three (3) or more bona fide unaffiliated market participants. Where a quote is in the form of bid and ask prices, the price that is to be used in the averaging is the midpoint between the bid and ask price. The quotes obtained shall be: (a) for a like amount, (b) of the same Product, and (c) for the remaining Delivery Term, or in any other commercially reasonable manner. The Gains and Losses shall be calculated as the difference, plus or minus, between the economic value of the remaining Delivery Term of the Terminated Transaction and the equivalent quantities and relevant market price for the same term, as provided in this Section 5.3, or which are reasonably expected to be available in the market for a replacement contract for the Transaction. The Settlement Amount shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages. The Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount.
Calculation of Termination Payment. The non-defaulting Party shall calculate, in a commercially reasonable manner, the Losses (or Gains) and Costs, incurred as a result of the termination of the Agreement. The non-defaulting Party shall set off (i) all such Gains, plus all other amounts due to the defaulting Party under the Agreement against (ii) all such Losses and Costs, plus all other amounts due from the defaulting Party under the Agreement, so that all such amounts shall be netted to a single liquidated amount (the “Termination Payment”) payable by one Party to the other. The Termination Payment shall be due to or due from the non-defaulting Party as appropriate. Nothing in this Agreement shall be construed as obligating the non-defaulting Party, in the event of a Termination, to enter into any brokerage agreements or other third party agreements to replace a Terminated Transaction.
Calculation of Termination Payment. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, the amounts owing between the Parties under this Agreement as of the Early Termination Date (the “Termination Payment”) in accordance with this Section. The Non-Defaulting Party shall determine its Gains and Losses by determining the Market Quotation Average Price for the Product from the Project. In the event the Non-Defaulting Party is not able, after commercially reasonable efforts, to obtain the Market Quotation Average Price for the Product from the Project, then the Non-Defaulting Party shall calculate its Costs, and its Gains or Losses with respect to the Product from the Project in a commercially reasonable manner by calculating the arithmetic mean of at least three (3) Forward Price Assessments for products substantially similar to the Product from the Project. Such Forward Price Assessments must be obtained assuming that the Party obtaining the quote will provide and obtain the same or substantially similar credit collateral terms as the credit and collateral terms in this Agreement. In the event the Non-Defaulting Party is not able, after commercially reasonable efforts, to obtain at least three (3) Forward Price Assessments for products substantially similar to the Product from the Project, then the Non-Defaulting Party shall calculate its Gains and Losses in a commercially reasonable manner by reference to information supplied to it by one or more third parties including, without limitation, index prices, 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 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 may calculate its Gains and Losses in a commercially reasonable manner using relevant market data it has available to it. The Termination Payment shall equal (a) in the case where Non-Defaulting Party has Losses, the aggregate Losses of the Non-Defaulting Party plus Costs of the Non-Defaulting Party plus any or all other amounts due to the Non-Defaulting Party net...
Calculation of Termination Payment. The Non-Defaulting Party shall calculate the “Settlement Amount” owed the Non-Defaulting Party as of the Early Termination Date, where the Settlement Amount shall be the dollar amount equal to twenty percent (20%) of the total aggregate amount of Monthly Capacity Payments based on Seller’s most recent Commitment Level provided pursuant Section 3.2 for the remaining Delivery Term. The Parties agree that the damages sustained by a Party due to an Event of Default would be difficult or impossible to determine, or that obtaining an adequate remedy would be unreasonably time consuming or expensive and therefore agree that the payment of a Settlement Amount by a Defaulting Party to a Non-Defaulting Party shall be liquidated damages and not a penalty. The Non-Defaulting Party shall not have to enter into replacement transactions to establish a Settlement Amount.
Calculation of Termination Payment. The termination payment shall equal the product of the Termination Payment Period as set forth above in subsection (a) multiplied by the sum of (i) the Executive's highest annual base salary during the three-year period prior to the Executive's termination plus (ii) the Executive's average annual cash incentive compensation award during the three-year period prior to the Executive's termination. For purposes of this subsection (b), the applicable three-year period shall include employment with RSI.
Calculation of Termination Payment. The non-defaulting Party shall calculate, in a commercially reasonable manner, the losses, costs and gains incurred or not realized as a result of the termination of the Agreement. To the extent the non-defaulting Party’s losses and costs, net of gains, are greater than zero, there shall be a termination payment due to the non-defaulting Party from the defaulting Party in an amount equal to the non-defaulting Party’s losses and costs, net of gains, which shall be the termination payment.
Calculation of Termination Payment. The non-defaulting Party shall calculate, in a commercially reasonable manner, the Losses (or Gains) and Costs, incurred as a result of the termination of the Agreement. The non-defaulting Party shall set off (i) all such Gains, plus all other amounts due to the defaulting Party under the Agreement against (ii) all such Losses and Costs, plus all other amounts due from the defaulting Party under the Agreement, so that all such amounts shall be netted to a single liquidated amount (the “Termination Payment”) payable by one Party to the other; provided that the non-defaulting Party has a duty to mitigate damages and covenants that it will use reasonable efforts to minimize any damages it may incur as a result of the other Party’s Event of Default; provided, further, that the defaulting Party shall have an opportunity to minimize or mitigate the damages of the non-defaulting Party prior to the calculation of the Termination Payment. If the non-defaulting Party’s Gains exceed its Losses and Costs, if any, resulting from the termination of the Agreement, the Termination Payment shall be zero; provided that any amounts due and owing by the non-defaulting Party to the defaulting Party prior to the date of the notice of Termination Payment pursuant to Section 10.3 shall nonetheless be due and owing. Nothing in the Agreement shall be construed as obligating the non-defaulting Party, in the event of a Termination, to enter into any brokerage agreements or other third-party agreements to replace a Terminated Transaction. The Termination Payment shall be the sole and exclusive remedy available to the non-defaulting Party in connection with its termination of the Agreement. Notwithstanding the foregoing, in accordance with Section 5.2.4, in the event of a termination by T&D after the Conditions Date but prior to the Commercial Operations Date due to a Seller Event of Default under the Agreement, Seller’s liability shall be no more than the amount of the Second Base Security Payment.
