Common use of Termination by Seller Clause in Contracts

Termination by Seller. Notwithstanding Buyer’s extension of the Term of this Agreement pursuant to Section 1.1, if after the first extension of the Term of this Agreement pursuant to Section 1.1, Seller intends to permanently cease production from any of the Mines during the three (3) year period of any on-going or pending extension term (other than the first extension of the Term of this Agreement pursuant to Section 1.1), and Seller determines in its reasonable discretion that it will not be able to supply the Base Tonnage from the other Mines once such Mine ceases production, Seller may reduce the Base Tonnage by giving Buyer no less than one (1) year advance written notice of such reduction in the Base Tonnage hereunder to an amount equal to the amount of coal meeting the quality specifications that Seller reasonably expects to be able to deliver during the remaining Term of this Agreement and any remaining extensions hereunder, taking into account the quantity of uncommitted coal, and the quality specifications of such coal, that Seller expects to produce at the other Mines as of the date that Seller ceases production at the Mine in question; provided that in no event shall the Base Tonnage exceed 40% of the total production from the remaining Mines. If Seller does not expect to produce more than a de minimis amount of coal in excess of Seller’s commitments to other coal purchasers, Seller’s notice to Buyer may instead give Buyer notice of the date on which this Agreement will terminate. If Seller has elected to reduce the Base Tonnage hereunder, this Agreement shall continue in accordance with its terms and conditions. In determining the extent of the reduction in the Base Tonnage upon shutdown of a Mine, Seller shall not give any of its other customers any priority over Buyer with respect to the purchase of any uncommitted coal that Seller has available at such time. Nothing herein shall be construed as requiring Seller to (i) incur any significant added expense or significant capital investment to continue the production of coal from the Mine in question, or (ii) reserve or withhold any coal from the other Mines from any of its other customers in order to have uncommitted coal available for Buyer hereunder. Neither of the Parties shall have any obligation to the other hereunder following the date of such termination, except with respect to matters occurring prior to the date of termination.

Termination by Seller. Notwithstanding Buyer’s extension If Seller terminates this Agreement for a Purchaser Event of Default, the Termination Payment payable to Seller shall be equal to the sum of (i) the Fair Market Value of the Term of this Agreement System, as determined pursuant to Section 1.1, if after the first extension of the Term of 7.4(b) and (ii) any and all other amounts previously accrued under this Agreement pursuant and then owed by Purchaser to Section 1.1Seller. If this Agreement is terminated for a Purchaser Event of Default, Seller intends may, at its discretion, relocate the System to permanently cease production from any of a new site at Purchaser’s reasonable expense (the Mines during the three (3) year period of any on-going or pending extension term (other than the first extension of the Term of this Agreement pursuant to Section 1.1“Relocation Expense”), and Seller determines in its reasonable discretion enter into a new contract with a new party for the sale of electricity, and if such relocation and contract is entered into within ninety (90) days of termination of this Agreement, the Termination Payment owed by Purchaser pursuant to this Section 12.4(b) shall be reduced to account for (A) the net present value of payments that it will not are expected to be able to supply received under the Base Tonnage from new contract, and (B) the other Mines once such Mine ceases productionmitigation of, Seller may reduce the Base Tonnage by giving Buyer no less than one (1) year advance written notice or reduction in, any Loss of Tax Benefits as a result of such reduction in the Base Tonnage hereunder to an amount equal to relocation (together, the amount of coal meeting in clauses (A) and (B), the quality specifications that Seller reasonably expects to be able to deliver during the remaining Term of this Agreement and any remaining extensions hereunder“Mitigation Offset”); provided, taking into account the quantity of uncommitted coalhowever, and the quality specifications of such coal, that Seller expects to produce at the other Mines as of the date that Seller ceases production at the Mine in question; provided that in no event shall the Base Tonnage exceed 40% amount of the total production from Relocation Expense exceed the remaining MinesMitigation Offset. If In the event Seller chooses not to undertake such relocation and new contract does not expect to produce more than a de minimis amount occur within ninety (90) days of coal in excess termination of Seller’s commitments to other coal purchasersthis Agreement, Seller’s notice to Buyer may instead give Buyer notice title and ownership of the date on which this Agreement will terminate. If Seller has elected System and the associated property shall transfer to reduce the Base Tonnage hereunderPurchaser “as is, this Agreement shall continue where is, with all faults” in accordance with its terms and conditions. In determining the extent Section 7.4(c) at no additional cost or expense of Purchaser (other than payment of the reduction Termination Payment in accordance with this Section 12.4(b)), unless Purchaser elects, in its sole discretion, not to acquire ownership of the Base Tonnage upon shutdown of a MineSystem, whereupon Seller shall not give any of its other customers any priority over Buyer remove the System in accordance with respect to the purchase of any uncommitted coal that Seller has available at such timeSection 8.1. Nothing herein Any payment made under this Section 12.4(b) shall be construed as requiring Seller to (i) incur any significant added expense or significant capital investment to continue increased by an amount such that, after imposition of federal corporate income taxes on such payment, the production of coal from result is a net payment that would have been made if no such taxes were imposed on the Mine in question, or (ii) reserve or withhold any coal from the other Mines from any of its other customers in order to have uncommitted coal available for Buyer hereunder. Neither of the Parties shall have any obligation to the other hereunder following the date of such termination, except with respect to matters occurring prior to the date of terminationpayment.

Termination by Seller. Notwithstanding Buyer’s extension If any Seller's Closing Condition set forth herein for the benefit of the Term of this Agreement pursuant to Section 1.1, if after the first extension of the Term of this Agreement pursuant to Section 1.1, Seller intends to permanently cease production from any of the Mines during the three (3) year period of any on-going or pending extension term (other than the first extension of the Term of this Agreement pursuant to Section 1.1), and Seller determines in its reasonable discretion that it a default by Buyer) cannot or will not be able satisfied prior to supply the Base Tonnage Closing, and Buyer fails to cure any such matter within ten (10) business days after notice thereof from the other Mines once such Mine ceases productionSeller, Seller may reduce may, at its option in its sole and absolute discretion, elect to (a) terminate this Agreement, in which event the Base Tonnage by giving rights and obligations of Seller and Buyer hereunder shall terminate immediately and, unless the Agreement is terminated as a result of Buyer's breach or default hereunder, the Deposit OP Units shall not be transferred to Seller (PROVIDED THAT, the Seller shall continue to retain and hold the Deposit OP Units as collateral pursuant and subject to the terms and provisions of the Buyer Leases and related Pledge Agreements pertaining to the Parcels), (b) terminate this Agreement with respect to any particular Parcel that is at issue only (PROVIDED THAT, no less than one (1) year advance written notice portion of the Deposit OP Units shall be transferred to Seller as a result of such reduction termination under this CLAUSE (b)), in which event the Base Tonnage hereunder to an amount equal to the amount rights and obligations of coal meeting the quality specifications that Seller reasonably expects to be able to deliver during the remaining Term of this Agreement and any remaining extensions hereunder, taking into account the quantity of uncommitted coal, and the quality specifications of such coal, that Seller expects to produce at the other Mines as of the date that Seller ceases production at the Mine in question; provided that in no event shall the Base Tonnage exceed 40% of the total production from the remaining Mines. If Seller does not expect to produce more than a de minimis amount of coal in excess of Seller’s commitments to other coal purchasers, Seller’s notice to Buyer may instead give Buyer notice of the date on which this Agreement will terminate. If Seller has elected to reduce the Base Tonnage hereunder, this Agreement shall continue in accordance with its terms and conditions. In determining the extent of the reduction in the Base Tonnage upon shutdown of a Mine, Seller shall not give any of its other customers any priority over Buyer with respect to the purchase and sale of such Parcel hereunder shall terminate immediately, but the rights and obligations of Seller and Buyer under this Agreement with respect to all other Parcels shall continue in full force and effect, or (c) waive its right to terminate, and instead, to proceed to Closing. Notwithstanding anything to the contrary stated or implied herein, in no event shall Seller have the right to terminate this Agreement with respect to all of the Myrtle Beach Parcels (other than the Oyster Bay Parcel, which may be terminated pursuant to SECTION 4.12 hereof) and proceed to close with the Buyer on the Virginia Parcels and/or Non-Core Parcels only. If, prior to Closing, Buyer defaults in performing any uncommitted coal that of its obligations under this Agreement in any material respect (including, without limitation, its obligation to purchase the Property or any Parcel and/or its obligation to timely and faithfully perform in all material respects each and every covenant and agreement set forth herein or in the Buyer Leases), and except as otherwise expressly provided in this Agreement, Buyer fails to cure any such default within ten (10) business days after notice thereof from Seller, then Seller has available at such time. Nothing herein shall be construed as requiring Seller may elect either to (i) incur any significant added expense seek specific performance of the Buyer's obligation to purchase the Property (other than Terminated Parcels or significant capital investment Parcels to continue be sold to third-party purchasers pursuant to SECTION 8.3 below) and/or perform its other obligations pursuant to the production of coal from the Mine in questionterms, provisions and conditions hereunder, or (ii) reserve or withhold any coal from terminate this Agreement in its entirety and receive and retain, as liquidated damages hereunder, the other Mines from any Deposit OP Units. ANY DEPOSIT OP UNITS PAID TO OR RETAINED BY SELLER AS LIQUIDATED DAMAGES HEREUNDER SHALL BE SELLER'S SOLE MONETARY REMEDY IF BUYER DEFAULTS (AS PROVIDED ABOVE) AND THE TRANSACTIONS HEREUNDER THEREBY FAIL TO CLOSE. THE PARTIES HERETO EXPRESSLY AGREE AND ACKNOWLEDGE THAT SELLER'S ACTUAL MONETARY DAMAGES IN THE EVENT OF A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THAT THE LIQUIDATED DAMAGES (I.E., THE VALUE OF THE DEPOSIT OP UNITS) STATED ABOVE REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH DAMAGES. THE PAYMENT OF ANY SUCH DEPOSIT OP UNITS BY BUYER TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FOREFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. In addition to the foregoing rights and remedies of the Seller, and in furtherance and not in limitation of its other customers rights under SECTION 4.7 of this Agreement, if this Agreement is terminated in connection with a Buyer breach or default, Buyer (on behalf of itself and its Affiliates) hereby covenants and agrees to execute and deliver to Seller any and all documentation reasonably requested by Seller in order to have uncommitted coal available for terminate the Buyer hereunder. Neither Leases, management agreements and all other instruments and agreements by and between Seller and Buyer (or an Affiliate of the Parties shall have any obligation Buyer) pertaining to the other hereunder following Non-Core Parcels and/or the date Virginia Parcels (or any of them as directed by Seller), and to promptly vacate and turn such terminationNon-Core Parcels and/or Virginia Parcels (or any of them as directed by Seller) over to Seller or its designee, except with respect all promptly after the termination of this Agreement and the delivery of written notice from Seller to matters occurring prior Buyer requesting the same. Each Affiliate of Buyer who is a "tenant" under a Buyer Lease for the Non-Core Parcels and/or Virginia Parcels has executed the Acknowledgment, Consent and Agreement Page attached hereto for the purposes of evidencing its acknowledgment of and consent to the date terms and provisions of terminationthis SECTION 8.2 and its agreement to be bound by the terms and provisions of this SECTION 8.2.

Termination by Seller. Notwithstanding Buyer’s extension The Seller may terminate the Contract at any time if the following condition (an “Event of the Term Default”) occurs; The Company, by act or omission, materially breaches or defaults on any material covenant, condition or other provision of this Agreement pursuant to Section 1.1, if after the first extension of the Term of this Agreement pursuant to Section 1.1, Seller intends to permanently cease production from any of the Mines during the three (3) year period of any on-going or pending extension term (other than the first extension of the Term of this Agreement pursuant to Section 1.1)Contract, and Seller determines in its reasonable discretion that it will not be able fails to supply the Base Tonnage cure such breach or default within thirty (30) days after written notice of such breach or default from the other Mines once Seller, unless (i) such Mine ceases productionbreach or default is due to Force Majeure provided, however, that if the Company does not cure such breach or default within 180 days of such notice, whether or not the breach or default resulted from Force Majeure or Force Majeure interferes with the cure, Seller may reduce terminate this Contract-or, (ii) such breach or default cannot be cured within thirty (30) days and the Base Tonnage Company is making diligent efforts to cure such breath or default; provided, however, that if such breach or default is not cured within 180 days of such notice, Seller may terminate this Contract. APPENDIX F DEFINITIONS Acceptance Test: A test conducted by giving Buyer no less than one Seller and, at Company’s option, witnessed by Company, within thirty (130) year days of completion of all Interconnection Facilities, and in accordance with criteria determined by the Company of the Company-owned Interconnection Facilities and the interconnection portion of the Seller’s Facility to determine conformance with Section 3 and Appendix C and Good Engineering and Operating Practices. Successful completion of the Acceptance Test to Company’s satisfaction shall be a condition Precedent for the Initial In-Service Date and the performance of the initial Control System Acceptance Test. Seller shall provide Company with at least seven (7) days advance written notice of such reduction the Acceptance Test. No energy will be delivered from Seller to Company during this Acceptance Test. No later than thirty (30) days prior to conducting the Acceptance Test, Company and Seller shall agree on a written protocol setting out the detailed procedure and criteria for passing the Acceptance Test. Within two (2) business days of successful completion of the Acceptance Test, Company shall notify Seller in writing that the Base Tonnage hereunder to an amount equal to the amount of coal meeting the quality specifications that Seller reasonably expects to be able to deliver during the remaining Term of this Agreement and any remaining extensions hereunder, taking into account the quantity of uncommitted coal, Acceptance Test has been passed and the quality specifications of such coal, that Seller expects to produce at date upon which the other Mines as of the date that Seller ceases production at the Mine in question; provided that in no event shall the Base Tonnage exceed 40% of the total production from the remaining Mines. If Seller does not expect to produce more than a de minimis amount of coal in excess of Seller’s commitments to other coal purchasers, Seller’s notice to Buyer may instead give Buyer notice of the date on which this Agreement will terminate. If Seller has elected to reduce the Base Tonnage hereunder, this Agreement shall continue in accordance with its terms and conditions. In determining the extent of the reduction in the Base Tonnage upon shutdown of a Mine, Seller shall not give any of its other customers any priority over Buyer with respect to the purchase of any uncommitted coal that Seller has available at such time. Nothing herein shall be construed as requiring Seller to (i) incur any significant added expense or significant capital investment to continue the production of coal from the Mine in question, or (ii) reserve or withhold any coal from the other Mines from any of its other customers in order to have uncommitted coal available for Buyer hereunder. Neither of the Parties shall have any obligation to the other hereunder following the date of such termination, except with respect to matters occurring prior to the date of terminationAcceptance Test was passed.

Termination by Seller. Notwithstanding BuyerIf the Purchaser materially defaults in performing any of its obligations under this Agreement (including its obligation to purchase the Property), and the Purchaser fails to cure any such default within ten (10) Business Days after notice thereof from the Seller, then the Seller’s extension sole remedy for such default shall be to terminate this Agreement and retain the Deposit. The Seller and the Purchaser agree that, in the event of such a default, the Term damages that the Seller would sustain as a result thereof would be difficult if not impossible to ascertain. Therefore, the Seller and the Purchaser agree that the Seller shall retain the Deposit as full and complete liquidated damages and as the Seller’s sole remedy. If upon the determination of Seller’s directors, trustees, or members, as applicable, and upon advice of counsel, any term or provision of this Agreement pursuant shall prevent, amend, alter, or reduce Seller’s ability to Section 1.1, if after the first extension of the Term of this Agreement pursuant to Section 1.1exercise its fiduciary duties under applicable law, Seller intends shall have the right to permanently cease production from any of the Mines during the terminate this Agreement, whereupon Seller shall promptly, but no later than three (3) year period of any on-going or pending extension term (other than the first extension of the Term of this Agreement pursuant to Section 1.1), and Seller determines in its reasonable discretion that it will not be able to supply the Base Tonnage Business Days from the other Mines once such Mine ceases production, Seller may reduce the Base Tonnage by giving Buyer no less than one (1) year advance written notice of such reduction in the Base Tonnage hereunder to an amount equal to the amount of coal meeting the quality specifications that Seller reasonably expects to be able to deliver during the remaining Term of this Agreement and any remaining extensions hereunder, taking into account the quantity of uncommitted coal, and the quality specifications of such coal, that Seller expects to produce at the other Mines as of the date that Seller ceases production at the Mine in question; provided that in no event shall the Base Tonnage exceed 40% of the total production from the remaining Mines. If Seller does not expect to produce more than a de minimis amount of coal in excess of Seller’s commitments to other coal purchasers, Seller’s notice to Buyer may instead give Buyer notice of the date on which this Agreement will terminate. If Seller has elected to reduce the Base Tonnage hereunder, this Agreement shall continue in accordance with its terms and conditions. In determining the extent of the reduction in the Base Tonnage upon shutdown of a Mine, Seller shall not give any of its other customers any priority over Buyer with respect to the purchase of any uncommitted coal that Seller has available at such time. Nothing herein shall be construed as requiring Seller to (i) incur any significant added expense or significant capital investment to continue the production of coal from the Mine in question, or (ii) reserve or withhold any coal from the other Mines from any of its other customers in order to have uncommitted coal available for Buyer hereunder. Neither of the Parties shall have any obligation to the other hereunder following the date of such termination, except pay to Purchaser (or its designee) the sum of (i) the Deposit, (ii) the Deposit Interest, (iii) the Break-Up Fee and (iv) the Expense Reimbursement, and neither Party shall have any further rights or obligations pursuant to this Agreement, other than as set forth herein with respect to matters occurring prior rights or obligations that survive termination. Seller may terminate this Agreement if the Confirmation Order is not entered on or before July 31, 2011, whereupon Seller shall promptly, but not later than three (3) Business Days from July 31, 2011, pay to Purchaser the date sum of termination.(i) the Deposit, (ii) the Deposit Interest, if any,

Termination by Seller. Notwithstanding Buyer’s extension In the event Seller considers that Buyer has not complied with any obligation hereunder, Seller shall notify Buyer setting out specifically in what respect it is claimed that Buyer has breached this Agreement. If the alleged breach is not cured within 60 days after notice is given of default or if Buyer has not within that time either commenced to cure the alleged breach and does not thereafter diligently complete such cure, or challenges the legitimacy of the Term of this Agreement pursuant to Section 1.1, if after the first extension of the Term of this Agreement pursuant to Section 1.1, Seller intends to permanently cease production from any of the Mines during the three (3) year period of any on-going or pending extension term (other than the first extension of the Term of this Agreement pursuant to Section 1.1), and Seller determines in its reasonable discretion that it will not be able to supply the Base Tonnage from the other Mines once such Mine ceases productionallegation, Seller may reduce the Base Tonnage terminate this Agreement by giving delivering to Buyer no less than one (1) year advance written notice of such reduction termination; provided, however, that in the Base Tonnage hereunder event Buyer challenges the legitimacy of the allegation Buyer may give written notice to Seller within such 60-day period setting forth such fact. If Seller gives written notice within 15 days of Buyer's notice that Seller rejects Buyer's position then this Agreement shall not be terminable by Seller until there is a final judicial determination by a court of competent jurisdiction that a default exists and shall not be terminated thereafter if Buyer shall satisfy such judgment within 30 days following its entry (or if an amount equal appeal of such judgment is taken following its affirmance by the highest court to which such an appeal is made). Failure of Seller to give such notice shall constitute agreement by Seller that Buyer is not in default. Seller shall not be entitled to terminate this Agreement for any default which by its nature is not retroactively curable if Buyer has used its best efforts to cure such a default to the amount of coal meeting the quality specifications that extent practical or if Buyer has paid Seller’s damages for such default where damages are an appropriate remedy. Seller reasonably expects shall have no right to be able to deliver during the remaining Term terminate this Agreement except as expressly provided in this Section 7.A, and termination of this Agreement and any remaining extensions hereunder, taking into account shall be the quantity of uncommitted coal, and the quality specifications of such coal, that Seller expects to produce at the other Mines as of the date that Seller ceases production at the Mine in question; provided that in no event shall the Base Tonnage exceed 40% of the total production from the remaining Mines. If Seller does not expect to produce more than a de minimis amount of coal in excess sole remedy of Seller’s commitments . Neither the service of any notice nor the performance of any acts by Buyer intended to other coal purchasers, Seller’s notice meet any such alleged breach shall be deemed an admission or presumption that Buyer has failed to Buyer may instead give Buyer notice of the date on which this Agreement will terminate. If Seller has elected to reduce the Base Tonnage hereunder, this Agreement shall continue in accordance with its terms and conditions. In determining the extent of the reduction in the Base Tonnage upon shutdown of a Mine, Seller shall not give any perform all of its other customers any priority over Buyer with respect to the purchase of any uncommitted coal that Seller has available at such timeobligations under this Agreement. Nothing herein shall be construed as requiring Seller to (i) incur any significant added expense or significant capital investment to continue the production of coal from the Mine in question, or (ii) reserve or withhold any coal from the other Mines from any of its other customers in order to have uncommitted coal available for Buyer hereunder. Neither of the Parties shall have any obligation to the other hereunder following the date of such termination, except with respect to matters occurring prior to the date of termination.B

Termination by Seller. Notwithstanding Buyer’s extension If Seller terminates this Agreement for a Purchaser Event of Default, the Termination Payment payable to Seller shall be equal to the sum of (i) the Fair Market Value of the Term of this Agreement System, as determined pursuant to Section 1.1, if after the first extension of the Term of 7.4(b) and (ii) any and all other amounts previously accrued under this Agreement pursuant and then owed by Purchaser to Section 1.1Seller. If this Agreement is terminated for a Purchaser Event of Default, Seller intends may, at its discretion, relocate the System to permanently cease production from any of a new site at Purchaser’s reasonable expense (the Mines during the three (3) year period of any on-going or pending extension term (other than the first extension of the Term of this Agreement pursuant to Section 1.1“Relocation Expense”), and Seller determines in its reasonable discretion enter into a new contract with a new party for the sale of electricity, and if such relocation and contract is entered into within ninety (90) days of termination of this Agreement, the Termination Payment owed by Purchaser pursuant to this Section 12.4(b) shall be reduced to account for (A) the net present value of payments that it will not are expected to be able to supply received under the Base Tonnage from new contract, and (B) the other Mines once such Mine ceases productionmitigation of, Seller may reduce the Base Tonnage by giving Buyer no less than one (1) year advance written notice or reduction in, any Loss of Tax Benefits as a result of such reduction in the Base Tonnage hereunder to an amount equal to relocation (together, the amount of coal meeting in clauses (A) and (B), the quality specifications that Seller reasonably expects to be able to deliver during the remaining Term of this Agreement and any remaining extensions hereunder“Mitigation Offset”); provided, taking into account the quantity of uncommitted coalhowever, and the quality specifications of such coal, that Seller expects to produce at the other Mines as of the date that Seller ceases production at the Mine in question; provided that in no event shall the Base Tonnage exceed 40% amount of the total production from Relocation Expense exceed the remaining MinesMitigation Offset. If In the event Seller chooses not to undertake such relocation and new contract does not expect to produce more than a de minimis amount occur within ninety (90) days of coal in excess termination of Seller’s commitments to other coal purchasersthis Agreement, Seller’s notice to Buyer may instead give Buyer notice title and ownership of the date on which this Agreement will terminate. If Seller has elected System and the associated property shall transfer to reduce the Base Tonnage hereunderPurchaser “as is, this Agreement shall continue DocuSign Envelope ID: E7F8C3BA-0A7D-40B7-90AD-68B83985A9C1 where is, with all faults” in accordance with its terms and conditions. In determining the extent Section 7.4(c) at no additional cost or expense of Purchaser (other than payment of the reduction Termination Payment in accordance with this Section 12.4(b)), unless Purchaser elects, in its sole discretion, not to acquire ownership of the Base Tonnage upon shutdown of a MineSystem, whereupon Seller shall not give any of its other customers any priority over Buyer remove the System in accordance with respect to the purchase of any uncommitted coal that Seller has available at such timeSection 8.1. Nothing herein Any payment made under this Section 12.4(b) shall be construed as requiring Seller to (i) incur any significant added expense or significant capital investment to continue increased by an amount such that, after imposition of federal corporate income taxes on such payment, the production of coal from result is a net payment that would have been made if no such taxes were imposed on the Mine in question, or (ii) reserve or withhold any coal from the other Mines from any of its other customers in order to have uncommitted coal available for Buyer hereunder. Neither of the Parties shall have any obligation to the other hereunder following the date of such termination, except with respect to matters occurring prior to the date of terminationpayment.