Common use of Calculation of Termination Payment Clause in Contracts

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 netted into a single amount, and the Defaulting Party shall owe such Termination Payment calculated under this clause (a) to the Non-Defaulting Party; or (b) in the case where the Non-Defaulting Party has Gains, the aggregate Gains of the Non-Defaulting Party less Costs of the Non-Defaulting Party less any or all other amounts due to the Non-Defaulting Party netted into a single amount. If the net amount calculated under clause (b) is negative, the Defaulting Party shall owe the absolute value of such amount to the Non-Defaulting Party. If the net amount calculated under clause (b) is positive, the Termination Payment shall be zero (0) except in the case where the Non-Defaulting Party elects to terminate this Agreement solely as a result of an Event of Default by the Defaulting Party under Section 3.1(d) [Bankruptcy], in which case the Non-Defaulting Party shall owe the positive amount calculated under clause (b) to the Defaulting Party. 12

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. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to calculate its Gains and Losses. 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 Settlement Amount plus any or all other amounts due to the Non-Defaulting Party netted into a single amount, and the Defaulting Party shall owe such Termination Payment calculated under this clause (a) to the Non-Defaulting Party; or (b) in the case where the Non-Defaulting Party has Gains, the aggregate Gains of the Non-Defaulting Party less Costs of the Non-Defaulting Party less any or all other amounts due to the Non-Defaulting Party Party) netted into a single amount. If the net amount calculated under clause (b) is negative, the Defaulting Party shall owe the absolute value of such amount to the Non-Defaulting Party. If the net amount calculated under clause (b) is positive, the Termination Payment shall be zero (0) except Except in the case where of a termination of this Agreement by the Non-Defaulting Party elects to terminate this Agreement solely as a result of an Event of Default by the Defaulting Party under Section 3.1(d) [Bankruptcy], in which case if the Non-Defaulting Party’s aggregate Gains exceeds its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the net Settlement Amount shall be zero (0). Each Party agrees and acknowledges that (a) the actual damages that the Non-Defaulting Party shall owe the positive amount calculated would incur in connection with a termination of this Agreement under clause Section 3.3(a) would be difficult or impossible to predict with certainty, (b) the Termination Payment described in this section is a reasonable and appropriate approximation of such damages, and (c) the Termination Payment described in this section is the exclusive remedy of the Non-Defaulting Party in connection with such termination but shall not otherwise act to limit any of the Non-Defaulting Party’s rights or remedies if the Non-Defaulting Party does not elect to terminate this Agreement as its remedy for an Event of Default by the Defaulting Party. 12.

Calculation of Termination Payment. ‌ (a) The Non-Defaulting Party shall calculatewill, in a commercially reasonable manner, the amounts owing between the Parties under this Agreement effective as of the Early Termination Date, calculate in good faith the Non-Defaulting Party’s Gains or Losses and Costs resulting from the termination of this Agreement. The Gains, Losses and Costs will be determined by comparing (x) the Contract Price for the Remaining Transactions under this Agreement had it not been terminated to (y) the relevant market prices for the Remaining Transactions either as quoted by a bona fide third-party offer or as reasonably expected to be available in the market under a replacement contract for this Agreement. To ascertain the market prices of a replacement contract, the Non-Defaulting Party may consider, among other valuations, quotations from leading dealers in energy contracts and other bona fide third party offers (except from any Person that is an Affiliate of the Non-Defaulting Party), in each case for energy that is generally equivalent to the Carbon-Free Energy, including in firmness. It is expressly agreed that the Non-Defaulting Party will not be required to enter into a replacement transaction in order to determine the Termination Payment (as hereafter defined). The Non-Defaulting Party will as quickly as reasonably practicable after the Early Termination Date aggregate such Gains, Losses and Costs with respect to this Agreement into a single net amount (the “Termination Payment”) in accordance with this Section. The Non-and notify the 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 ablethereof, after commercially providing 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 detail of the Non-Defaulting Party plus Costs Party’s calculation of the Non-Defaulting Party plus any or all other amounts due to the Non-Defaulting Party netted into a single amount, and the Defaulting Party shall owe such Termination Payment calculated under this clause (a) to the Non-Defaulting Party; or (b) in the case where the Non-Defaulting Party has Gains, the aggregate Gains of the Non-Defaulting Party less Costs of the Non-Defaulting Party less any or all other amounts due to the Non-Defaulting Party netted into a single amountPayment. If the net amount calculated under clause (b) is negativeNon- Defaulting Party’s aggregate Losses and Costs exceed its aggregate Gains, the Defaulting Party shall owe will, within five Business Days from the absolute value receipt of such amount notice, pay the Termination Payment to the Non-Defaulting Party. If the net amount calculated under clause (b) is positiveNon-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, the Termination Payment shall will be zero (0) except in the case where the Non-Defaulting Party elects deemed to terminate this Agreement solely as a result of an Event of Default by the Defaulting Party under Section 3.1(d) [Bankruptcy], in which case the Non-Defaulting Party shall owe the positive amount calculated under clause be zero. (b) to the Defaulting Party. 12For purposes of this Agreement:‌

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. Without prejudice to the Non-Defaulting Party’s duty to mitigate, the Non-Defaulting Party shall not have to enter into replacement transactions to calculate its Gains and Losses. 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 Settlement Amount plus any or all other amounts due to the Non-Defaulting Party netted into a single amount, and the Defaulting Party shall owe such Termination Payment calculated under this clause (a) to the Non-Defaulting Party; or (b) in the case where the Non-Defaulting Party has Gains, the aggregate Gains of the Non-Defaulting Party less Costs of the Non-Defaulting Party less any or all other amounts due to the Non-Defaulting Party Party) netted into a single amount. If the net amount calculated under clause (b) is negative, the Defaulting Party shall owe the absolute value of such amount to the Non-Defaulting Party. If the net amount calculated under clause (b) is positive, the Termination Payment shall be zero (0) except Except in the case where of a termination of this Agreement by the Non-Defaulting Party elects to terminate this Agreement solely as a result of an Event of Default by the Defaulting Party under Section 3.1(d) [Bankruptcy], in which case if the Non-Defaulting Party’s aggregate Gains exceeds its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the net Settlement Amount shall be zero (0). Each Party agrees and acknowledges that (a) the actual damages that the Non-Defaulting Party shall owe the positive amount calculated would incur in connection with a termination of this Agreement under clause Section 3.3(a) would be difficult or impossible to predict with certainty, (b) the Termination Payment described in this section is a reasonable and appropriate approximation of such damages, and (c) the Termination Payment described in this section is the exclusive remedy of the Non-Defaulting Party in connection with such termination but shall not otherwise act to limit any of the Non-Defaulting Party’s rights or remedies if the Non-Defaulting Party does not elect to terminate this Agreement as its remedy for an Event of Default by the Defaulting Party. 1213

Calculation of Termination Payment. The Nonnon-Defaulting defaulting Party shall calculate, in a commercially reasonable manner, the amounts owing between the Parties under this Agreement a Termination Payment 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 marketsDate. Third parties supplying such information for purposes of the calculation of Gains or Losses may include, without limitation, 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 that such third parties shall not be Affiliates by three (3) or more bona fide unaffiliated market participants. If the number of either Party. Only in the event the Non-Defaulting Party available quotes is not able, after using commercially reasonable efforts, to obtain such third party informationthree, then the Non-Defaulting Party may calculate its 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 obtained shall be: (a) for a like amount, (b) of the same Output, (c) at the same (or a reasonably equivalent) Pnode (as defined in the CAISO Tariff), and (d) for the remainder of the Term, or in any other commercially reasonable manner. The Gains and Losses in a commercially reasonable manner using shall be calculated as the difference, plus or minus, between the economic value of the remainder of the Term of the Agreement and the equivalent quantities and relevant market data it has prices for the same term that either are quoted by a bona fide market participant, as provided above, or which are reasonably expected to be available to itin the market for a replacement contract for the Agreement. The Termination Payment shall equal (a) in be 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 sole and exclusive remedy available to the Nonnon-Defaulting defaulting Party netted into a single amountin connection with its termination of this Agreement and shall not include consequential, incidental, punitive, exemplary, indirect or business interruption damages; provided that, if Seller is the defaulting Party, Buyer terminates this Agreement, and Buyer has paid for interconnection capital costs arising under the Defaulting Interconnection Agreement pursuant to Section 4.1(h) for which Buyer has not received reimbursement under Section 4.1(h), then Seller shall also reimburse Buyer pro rata for any such costs paid for by Buyer (assuming twenty-five (25) years of Plant operations). The non-defaulting Party shall owe such not have to enter into replacement transactions to establish a Termination Payment calculated under this clause (a) to the Non-Defaulting Party; or (b) in the case where the Non-Defaulting Party has Gains, the aggregate Gains of the Non-Defaulting Party less Costs of the Non-Defaulting Party less any or all other amounts due to the Non-Defaulting Party netted into a single amount. If the net amount calculated under clause (b) is negative, the Defaulting Party shall owe the absolute value of such amount to the Non-Defaulting Party. If the net amount calculated under clause (b) is positive, the Termination Payment shall be zero (0) except in the case where the Non-Defaulting Party elects to terminate this Agreement solely as a result of an Event of Default by the Defaulting Party under Section 3.1(d) [Bankruptcy], in which case the Non-Defaulting Party shall owe the positive amount calculated under clause (b) to the Defaulting Party. 12Payment.