Common use of Resolution Mechanism Clause in Contracts

Resolution Mechanism. (a) Upon the occurrence of a Deadlock, the Proponent may cause the Proposal and the Deadlock to be referred to the Chief Executive Officers of the ultimate U.S. parent company of each of their respective Affiliated group of companies (i.e., Trigen Solutions Energy Corporation, a Delaware corporation, in the case of Trigen Solutions and Cinergy Corp., a Delaware corporation, in the case of Cinergy Solutions). If such Chief Executive Officers are unable to resolve the Deadlock within ten (10) business days thereafter, then (but only then) the provisions of Section 5.2(b) shall apply; provided, however, that the provisions of Section 5.2(b) shall not apply until the first anniversary of the formation of the Company, unless a failure to act by the Company would result in a breach of a material agreement to which the Company is a party or violate any applicable legal or regulatory requirement. (i) Within thirty (30) days after the expiration of the ten (10) business-day period referred to in paragraph (a) above, the Proponent may offer to purchase (“Purchase Offer”) all (but not less than all) of the Interests and any indebtedness of the Company (collectively the “Applicable Interest”) owned by the other Member (“Offeree”), specifying (x) the aggregate price to be paid for the Applicable Interest (which aggregate price shall specify separately the price placed by the Proponent on each component of the Applicable Interest and be payable only in cash_ and other terms and conditions of the Purchase Offer, (y) a date by which the Purchase Offer must be accepted (which may not be less than thirty (30) days nor more than sixty (60) days after the date the Purchase Offer is made) (the “Acceptance Date”) and (z) a proposed settlement date (the “Settlement Date”) therefor (which may not be less than thirty (30) days nor more than sixty (60) days after the specified Acceptance Date). The foregoing notwithstanding, the Settlement Date may be extended by either member by written notice to the other Member to the extent reasonably required to accommodate (i) any necessary approval or non-objection by or filing with any governmental or regulatory authority (each, a “Regulatory Approval”) including, without limitation, under the Public Utility Holding Company Act of 1935 (the “1935 Act”), or (ii) the removal of any liens, claims, charges or encumbrances attributable to the selling Member and existing on the Applicable Interest (each, a “Lien”), in either case being sought in good faith by appropriate proceedings promptly initiated and diligently conducted by the Member requesting the extension. (ii) On or before the Acceptance Date, the Offeree may either accept the Purchase Offer or may by written notice to the Proponent elect to purchase all (but not less than all) of the Proponent’s Applicable Interest at the price and on the other terms and conditions specified by the Proponent in the Purchase Offer. If the Offeree neither accepts the Purchase Offer nor elects by the Acceptance Date to purchase the Proponent’s Applicable Interest, the Offeree will be deemed to have accepted the Purchase Offer. (iii) In either event, the settlement will take place on the Settlement Date, as it may be extended per (b)(i) immediately above, and the Proponent will purchase, and the Offeree will sell, the Offeree’s Applicable Interest, or the Offeree will purchase, and the Proponent will sell, the Proponent’s Applicable Interest, as the case may be, at the price and place and on the other terms and conditions specified by the Proponent in the Purchase Offer, in either case free and clear of all Liens which are not connected with the financing or operation of the Company, at which time the Proponent’s Applicable Interest or the Offeree’s Applicable Interest (as the case may be) shall be delivered against payment of the said price. In order to comply with applicable regulatory requirements, the purchasing Member may designate a third party to purchase any portion or all of the Applicable Interest which the purchasing Member is committed to purchase hereunder.

Resolution Mechanism. (a) Upon the occurrence of a Deadlock, the Proponent may cause the Proposal and the Deadlock to be referred to the Chief Executive Officers of each of the ultimate Member’s U.S. parent company of each of their respective Affiliated group of companies (i.e., Trigen Solutions Energy Corporation, a Delaware corporation, in the case of Trigen Solutions Trigen, and Cinergy Corp., a Delaware corporation, in the case of Cinergy Solutions). If such Chief Executive Officers are unable to resolve the Deadlock within ten (10) business days thereafter, then (but only then) the provisions of Section 5.2(b) shall apply; provided, however, that the provisions of Section 5.2(b) shall not apply until the first anniversary of the formation of the Company, unless a failure to act by the Company would result in a breach of a material agreement to which the Company is a party or violate any applicable legal or regulatory requirement. (i) Within thirty (30) days after the expiration of the ten (10) business-day period referred to in paragraph (a) above, the Proponent may offer to purchase (“Purchase Offer”) all (but not less than all) of the Interests and any indebtedness of the Company (collectively the “Applicable Interest”) owned by the other Member (“Offeree”), specifying (x) the aggregate price to be paid for the Applicable Interest (which aggregate price shall specify separately the price placed by the Proponent on each component of the Applicable Interest and be payable only in cash_ , and other terms and conditions of the Purchase Offer), (y) a date by which the Purchase Offer must be accepted (which may not be less than thirty (30) days nor more than sixty (60) days after the date the Purchase Offer is made) (the “Acceptance Date”) and (z) a proposed settlement date (the “Settlement Date”) therefor (which may not be less than thirty (30) days nor more than sixty (60) days after the specified Acceptance Date). The foregoing notwithstanding, the Settlement Date may be extended by either member Member by written notice to the other Member to the extent reasonably required to accommodate (i) any necessary approval or non-objection by or filing with any governmental or regulatory authority (each, a “Regulatory Approval”) including, without limitation, under the Public Utility Holding Company Act of 1935 (the “1935 Act”), or (ii) the removal of any liens, claims, charges or encumbrances attributable to the selling Member and existing on the Applicable Interest (each, a “Lien”), in either case being sought in good faith by appropriate proceedings promptly initiated and diligently conducted by the Member requesting the extension. (ii) On or before the Acceptance Date, the Offeree may either accept the Purchase Offer or may by by, written notice to the Proponent Proponent, elect to purchase all (but not less than all) of the Proponent’s Applicable Interest at the price and on the other terms and conditions specified by the Proponent in the Purchase Offer. If the Offeree neither accepts the Purchase Offer nor elects by the Acceptance Date to purchase the Proponent’s Applicable Interest, the Offeree will be deemed to have accepted the Purchase Offer. (iii) In either event, the settlement will take place on the Settlement Date, as it may be extended per (b)(i) immediately above, and the Proponent will purchase, and the Offeree will sell, the Offeree’s Applicable Interest, or the Offeree will purchase, and the Proponent will sell, the Proponent’s Applicable Interest, as the case may be, at the price and place and on the other terms and conditions specified by the Proponent in the Purchase Offer, in either case free and clear of all Liens which are not connected with the financing or operation of the Company, at which time the Proponent’s Applicable Interest or the Offeree’s Applicable Interest (as the case may be) shall be delivered against payment of the said price. In order to comply with applicable regulatory requirements, the purchasing Member may designate a third party to purchase any portion or all of the Applicable Interest which the purchasing Member is committed to purchase hereunder.

Resolution Mechanism. (a) Upon the occurrence of a Deadlock, the Proponent may cause the Proposal and the Deadlock to be referred to the Chief Executive Officers of the ultimate U.S. parent company of each of their respective Affiliated affiliated group of companies (i.e., Trigen Solutions Energy Corporation, a Delaware corporation, in the case of Trigen Solutions and Cinergy Corp., a Delaware corporation, in the case of Cinergy Solutions). If such Chief Executive Officers are unable to resolve the Deadlock within ten (10) business days thereafter, then (but only then) the provisions of Section 5.2(b) shall apply; provided, however, that the provisions of Section 5.2(b) shall not apply until the first anniversary of the formation of the Company, unless a failure to act by the Company would result in a breach of a material agreement to which the Company is a party or violate any applicable legal or regulatory requirement. (i) Within thirty (30) days after the expiration of the ten (10) business-day period referred to in paragraph (a) above, the Proponent may offer to purchase (“"Purchase Offer”") all (but not less than all) of the Interests and any indebtedness of the Company (collectively the “"Applicable Interest”") owned by the other Member (“"Offeree”"), specifying (x) the aggregate price to be paid for the Applicable Interest (which aggregate price shall specify separately the price placed by the Proponent on each component of the Applicable Interest and be payable only in cash_ , and other terms and conditions of the Purchase Offer, (y) a date by which the Purchase Offer must be accepted (which may not be less than thirty (30) days nor more than sixty (60) days after the date the Purchase Offer is made) (the “"Acceptance Date”") and (z) a proposed settlement date (the “"Settlement Date”") therefor (which may not be less than thirty (30) days nor more than sixty (60) days after the specified Acceptance Date). The foregoing notwithstanding, the Settlement Date may be extended by either member Member by written notice to the other Member to the extent reasonably required to accommodate (i) any necessary approval or non-objection by or filing with any governmental or regulatory authority (each, a “"Regulatory Approval”") including, without limitation, under the Public Utility Holding Company Act of 1935 (the “"1935 Act”"), or (ii) the removal of any liens, claims, charges or encumbrances attributable to the selling Member and existing on the Applicable Interest (each, a “"Lien”"), in either case being sought in good faith by appropriate proceedings promptly initiated and diligently conducted by the Member requesting the extension. (ii) On or before the Acceptance Date, the Offeree may either accept the Purchase Offer or may by written notice to the Proponent elect to purchase all (but not less than all) of the Proponent’s 's Applicable Interest at the price and on the other terms and conditions specified by the Proponent in the Purchase Offer. If the Offeree neither accepts the Purchase Offer nor elects by the Acceptance Date to purchase the Proponent’s 's Applicable Interest, the Offeree will be deemed to have accepted the Purchase Offer. (iii) In either event, the settlement will take place on the Settlement Date, as it may be extended per (b)(i) immediately above, and the Proponent will purchase, and the Offeree will sell, the Offeree’s 's Applicable Interest, or the Offeree will purchase, and the Proponent will sell, the Proponent’s 's Applicable Interest, as the case may be, at the price and place and on the other terms and conditions specified by the Proponent in the Purchase Offer, in either case free and clear of all Liens which are not connected with the financing or operation of the Company, at which time the Proponent’s 's Applicable Interest or the Offeree’s 's Applicable Interest (as the case may be) shall be delivered against payment of the said price. In order to comply with applicable regulatory requirements, the purchasing Member may designate a third party to purchase any portion or all of the Applicable Interest which the purchasing Member is committed to purchase hereunder, subject to the restrictions set forth in Section 2.2 hereof.

Resolution Mechanism. (a) Upon the occurrence of a Deadlock, the Proponent may cause the Proposal and the Deadlock to be referred to the Chief Executive Officers of each of the ultimate Member’s respective U.S. parent company of each of their respective Affiliated group of companies (i.e., Trigen Solutions Energy Corporation, a Delaware corporation, in the case of Trigen Solutions and Cinergy Corp., a Delaware corporation, in the case of Cinergy Solutions). If such Chief Executive Officers are unable to resolve the Deadlock within ten (10) business days thereafter, then (but only then) the provisions of Section 5.2(b) shall apply; provided, however, that the provisions of Section 5.2(b) shall not apply until the first anniversary of the formation of the Company, unless a failure to act by the Company would result in a breach of a material agreement to which the Company is a party or violate any applicable legal or regulatory requirement. (i) Within thirty (30) days after the expiration of the ten (10) business-day period referred to in paragraph (a) above, the Proponent may offer to purchase (“Purchase Offer”) all (but not less than all) of the Interests and any indebtedness of the Company (collectively the “Applicable Interest”) owned by the other Member (“Offeree”), specifying (x) the aggregate price to be paid for the Applicable Interest (which aggregate price shall specify separately the price placed by the Proponent on each component of the Applicable Interest and be payable only in cash_ , and other terms and conditions of the Purchase Offer), (y) a date by which the Purchase Offer must be accepted (which may not be less than thirty (30) days nor more than sixty (60) days after the date the Purchase Offer is made) (the “Acceptance Date”) and (z) a proposed settlement date (the “Settlement Date”) therefor (which may not be less than thirty (30) days nor more than sixty (60) days after the specified Acceptance Date). The foregoing notwithstanding, the Settlement Date may be extended by either member Member by written notice to the other Member to the extent reasonably required to accommodate (i) any necessary approval or non-objection by or filing with any governmental or regulatory authority (each, a “Regulatory Approval”) including, without limitation, under the Public Utility Holding Company Act of 1935 (the “1935 Act”), or (ii) the removal of any liens, claims, charges or encumbrances attributable to the selling Member and existing on the Applicable Interest (each, a “Lien”), in either case being sought in good faith by appropriate proceedings promptly initiated and diligently conducted by the Member requesting the extension. (ii) On or before the Acceptance Date, the Offeree may either accept the Purchase Offer or may by written notice to the Proponent elect to purchase all (but not less than all) of the Proponent’s Applicable Interest at the price and on the other terms and conditions specified by the Proponent in the Purchase Offer. If the Offeree neither accepts the Purchase Offer nor elects by the Acceptance Date to purchase the Proponent’s Applicable Interest, the Offeree will be deemed to have accepted the Purchase Offer. (iii) In either event, the settlement will take place on the Settlement Date, as it may be extended per (b)(i) immediately above, and the Proponent will purchase, and the Offeree will sell, the Offeree’s Applicable Interest, or the Offeree will purchase, and the Proponent will sell, the Proponent’s Applicable Interest, as the case may be, at the price and place and on the other terms and conditions specified by the Proponent in the Purchase Offer, in either case free and clear of all Liens which are not connected with the financing or operation of the Company, at which time the Proponent’s Applicable Interest or the Offeree’s Applicable Interest (as the case may be) shall be delivered against payment of the said price. In order to comply with applicable regulatory requirements, the purchasing Member may designate a third party to purchase any portion or all of the Applicable Interest which the purchasing Member is committed to purchase hereunder.