Common use of Invalidity or Unenforceability of Provisions or Indices Clause in Contracts

Invalidity or Unenforceability of Provisions or Indices. ‌ If any provision of this Agreement is invalid or unenforceable, or in the event that any index or price quotation referred to in this Agreement ceases to be published, or if the basis therefor is changed materially, then: (a) if a provision is considered to be invalid or unenforceable, then the Party considering such provision to be invalid or unenforceable may propose, by notice in writing to the other Party, a Replacement Provision and the AESO and the Generator and, at the AESO's discretion, those Other Generators that are required by the AESO to participate, shall engage in good faith negotiations to replace such provision with a valid and enforceable provision, the economic effect of which substantially reflects that of the invalid or unenforceable provision which it replaces; (b) if any index or price quotation referred to in this Agreement ceases to be published, or if the basis therefor is changed materially, then the AESO and the Generator and, at the AESO's discretion, all of those Other Generators that are required by the AESO to participate, shall engage in good faith negotiations to substitute an available replacement index or price quotation that most nearly, of those then publicly available, approximates the intent and purpose of the index or price quotation that has so ceased or changed and this Agreement shall be amended as necessary to accommodate such replacement index or price quotation; (c) if a Party does not believe that a provision is invalid or unenforceable, or that the basis for an index or price quotation has changed materially, or ceases to be published, or if the negotiations set out in Section 1.11(a) or Section 1.11(b) are not successful, or if the Parties are unable to agree on all such issues and any amendments required to this Agreement (each a "Replacement Provision") within thirty (30) days after either the giving of the notice under Section 1.11(a) or the occurrence of the event in Section 1.11(b), then the Replacement Provision(s) shall be determined by mandatory and binding arbitration from which there shall be no appeal, with such arbitration to be conducted in accordance with the procedures set out in Schedule 6; however, if the Generator fails to participate in such arbitration, the Generator acknowledges that it waives its right to participate in such arbitration, which shall nevertheless proceed, and the Generator shall be bound by the award of the Joint Arbitration Panel and the subsequent amendments to this Agreement made by the AESO to implement such award of the Joint Arbitration Panel set out in Section 1.11(d)(iii); and (d) The terms of this Agreement shall be amended either: (i) by the agreement of the Parties, where no award of the Joint Arbitration Panel has been made pursuant to Section 1.11(c); (ii) by the agreement of the Parties made pursuant to and in implementation of an award of the Joint Arbitration Panel made pursuant to Section 1.11(c); or (iii) by an amendment prepared by the AESO made pursuant to and to implement an award of the Joint Arbitration Panel made pursuant to Section 1.11(c), where the Generator failed to participate in such arbitration, with such agreement or amendment, as applicable, having effect as of the date of such invalidity or unenforceability or from and after the date that the relevant index or quotation ceased to be published or the basis therefor is changed materially, as the case may be. (e) This Section 1.11 shall not apply to the circumstances addressed in Section 6.11 and Article 12.

Invalidity or Unenforceability of Provisions or Indices. ‌ If any provision of this Agreement is invalid or unenforceable, or in the event that any index or price quotation referred to in this Agreement ceases to be published, or if the basis therefor is changed materially, then: (a) if a provision is considered to be invalid or unenforceable, then the Party considering such provision to be invalid or unenforceable may propose, by notice in writing to the other Party, a Replacement Provision and the AESO and the Generator and, at the AESO's discretion, those Other Generators that are required by the AESO to participate, shall engage in good faith negotiations to replace such provision with a valid and enforceable provision, the economic effect of which substantially reflects that of the invalid or unenforceable provision which it replaces; (b) if any index or price quotation referred to in this Agreement ceases to be published, or if the basis therefor is changed materially, then the AESO and the Generator and, at the AESO's discretion, all of those Other Generators that are required by the AESO to participate, shall engage in good faith negotiations to substitute an available replacement index or price quotation that most nearly, of those then publicly available, approximates the intent and purpose of the index or price quotation that has so ceased or changed and this Agreement shall be amended as necessary to accommodate such replacement index or price quotation; (c) if a Party does not believe that a provision is invalid or unenforceable, or that the basis for an index or price quotation has changed materially, or ceases to be published, or if the negotiations set out in Section 1.11(a) or Section 1.11(b) are not successful, or if the Parties are unable to agree on all such issues and any amendments required to this Agreement (each a "Replacement Provision") within thirty (30) days after either the giving of the notice under Section 1.11(a) or the occurrence of the event in Section 1.11(b), then the Replacement Provision(s) shall be determined by mandatory and binding arbitration from which there shall be no appeal, with such arbitration to be conducted in accordance with the procedures set out in Schedule 6; however, if the Generator fails to participate in such arbitration, the Generator acknowledges that it waives its right to participate in such arbitration, which shall nevertheless proceed, and the Generator shall be bound by the award of the Joint Arbitration Panel and the subsequent amendments to this Agreement made by the AESO to implement such award of the Joint Arbitration Panel set out in Section 1.11(d)(iii); and (d) The terms of this Agreement shall be amended either: (i) by the agreement of the Parties, where no award of the Joint Arbitration Panel has been made pursuant to Section 1.11(c); (ii) by the agreement of the Parties made pursuant to and in implementation of an award of the Joint Arbitration Panel made pursuant to Section 1.11(c); or (iii) by an amendment prepared by the AESO made pursuant to and to implement an award of the Joint Arbitration Panel made pursuant to Section 1.11(c), where the Generator failed to participate in such arbitration, with such agreement or amendment, as applicable, having effect as of the date of such invalidity or unenforceability or from and after the date that the relevant index or quotation ceased to be published or the basis therefor is changed materially, as the case may be. (e) This Section 1.11 shall not apply to the circumstances addressed in Section 6.11 and Article 12.