Early termination and TOP Charges. (a) If ARTC terminates a Train Path Schedule or this agreement (other than under clause 2, clause 12.1 for a breach by ARTC, clause 12.2 due to ARTC ceasing to carry on business or becoming insolvent or clause 12.3 of this agreement), the Access Holder must within one month of termination pay ARTC an amount equal to the present value of the TOP Charges which would have otherwise been payable over the remaining term of each terminated Train Path Schedule as calculated by ARTC. In calculating the present value, ARTC will:
(i) assume the TOP Charges which would apply over the remaining term of each terminated Train Path Schedule are those applying at the date of termination;
(ii) subject to paragraph (b), if the Project Completion Condition Precedent for a tranche of Path Usages under a terminated Train Path Schedule is not satisfied, assume that it will be satisfied on the relevant Start Date (as last notified by ARTC); and
(iii) use a discount rate equal to the applicable rate of return approved under the Access Undertaking at the time of termination.
(b) If an uncompleted project in the Train Path Schedule is for the sole benefit of the Access Holder, ARTC must negotiate in good faith with the Access Holder to mitigate the future costs incurred in relation to that project and ARTC must, acting reasonably, take into account any such agreed reduction in calculating the amount payable under paragraph (a).
(c) If:
(i) within two years of ARTC’s termination, ARTC enters into, or varies, an access holder agreement with another party (with a term of at least two years) for a Train Path which is the same as, or substantially similar to, a Train Path under a terminated Train Path Schedule; and
(ii) in ARTC’s reasonable opinion the Capacity contracted under the new or varied access holder agreement relates to the same Capacity contracted by the Access Holder under the terminated Train Path Schedule, ARTC must rebate an amount paid under clause 12.8(a) which ARTC reasonably considers to be the present value of the expected take or pay charges it will receive under the relevant Train Path Schedule of the new or varied agreement to the extent that the Capacity is the same.
(d) In calculating the present value of the take or pay charges it will receive under the relevant Train Path Schedule of the new or varied access holder agreement:
(i) ARTC must use a discount rate equal to the applicable rate of return approved under the Access Undertaking at the time of the termin...
Early termination and TOP Charges. (a) If ARTC terminates a Train Path Schedule or this agreement (other than under clause 2, clause 12.1 for a breach by ARTC, clause
Early termination and TOP Charges. (a) If ARTC terminates a Train Path Schedule or this agreement (other than under clause 2), the Access Holder must within one month of termination pay ARTC an amount equal to the net present value of TOP Charges applying as at the date of termination for each Train Path Schedule being terminated which would have otherwise been payable:
(i) over the remainder of the Initial Period (if any); plus
(ii) the Schedule Notice Period, with the discount rate to be used to be equal to the applicable rate of return approved by the ACCC under the Access Undertaking at the time of termination.
(b) If ARTC enters into, or varies, an access holder agreement with another party for train paths which are the same as, or substantially similar to, one or more of the Train Paths, then ARTC must rebate an amount paid under clause 12.7(a) which ARTC reasonably considers to be the difference between the TOP Charges it would have received from the Access Holder but for the early termination and the expected take or pay charges it receives under the new or varied agreement in relation to the Train Paths.
(c) The Access Holder acknowledges that the amount payable under this clause 12.7 is a genuine pre-estimate of ARTC’s loss arising from an early termination of this agreement.
(d) This clause 12.7 survives termination of this agreement.
