Claims for damages and compensation for benefits received Non-Performance Clause Samples

Claims for damages and compensation for benefits received Non-Performance. (1) In the event of Termination, the party giving notice of termination or the solvent party, as the case may be, (hereinafter referred to as "Calculating Party") shall determine the claim for non- performance. The claim for non-performance will be determined by the Calculating Party on the basis of market or exchange prices of replacement transactions which are entered into in place of the terminated Transactions. The Calculating Party is required to enter into these replacement transactions without undue delay but at the latest by the end of the fifth Bank Working Day following the Termination, or, where this is necessary for a value-conserving execution of the transactions, by the end of the twentieth Bank Working Day following the Termination. Where market or exchange prices of the replacement transactions are denominated in currencies other than the Euro, the Calculating Party shall convert them into Euro on the basis of currency exchange rates offered by leading market participants for selling the relevant currencies. To the extent the Calculating Party refrains from entering into such replacement transactions, it is entitled to determine the claim for non- performance on the basis of the amounts (i) it would have received or expended for such replacement transactions on the basis of market or exchange prices entered into at the time of Termination, however, not later than by the end of the fifth Bank Working Day following the Termination, or (ii) determined by the central counterparty for the Contracts corresponding to the Transactions. Where market conditions prevent or would have prevented the execution of replacement transactions in accordance with sentences 2 or 5 within the relevant time limits, the Calculating Party is entitled to determine the value of the terminated Transactions in accordance with methods and procedures which sufficiently ensure an adequate valuation. The market or exchange prices obtained for the replacement transactions in accordance with sentence 2, the amounts determined in accordance with sentence 5 and the amounts applied in accordance with sentence 6, shall be netted against each other. Where the resulting amount after such netting is – from the perspective of the Calculating Party – ultimately positive, the Calculating Party is entitled to a claim for non-performance corresponding to this amount. Where the resulting amount after such netting is – from the perspective of the Calculating Party – ultimately negative, th...