Common use of Termination by the Buyer Clause in Contracts

Termination by the Buyer. In addition to any other right to terminate this EPA expressly set out in any other provision of this EPA, the Buyer may terminate this EPA, by notice to the Seller if: (a) the Seller has failed to obtain all Material Permits on or before the date that is the earlier of: (i) Guaranteed COD; and (ii) the third anniversary of the Effective Date; provided that the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the date on which the Seller has secured all Material Permits, and if the Seller has not already delivered a notice of termination under subsection 16.2(a); (b) COD does not occur by Guaranteed COD plus 365 days plus all Force Majeure Days (not exceeding 180 Force Majeure Days), provided that if the Seller can demonstrate on or before such date by clear and convincing evidence acceptable to the Buyer, acting reasonably, that construction of the Incremental Seller’s Plant and the integration of the Incremental Seller’s Plant into the Seller’s Plant is 80% complete by such date, the Buyer may terminate this EPA under this provision, by notice to the Seller, only if the Seller fails to achieve COD within a further 180 days plus any further Force Majeure Days (not exceeding 180 Force Majeure Days) after such date, and provided further that the Buyer shall be entitled to terminate this EPA under this provision only if the Buyer delivers a termination notice before COD; (c) either Party has received a notice from the other Party invoking Force Majeure and the Force Majeure has not been terminated by the date that is 730 days after the date of notice invoking Force Majeure, provided that the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the end of the Force Majeure; (d) a Transmission System Outage that is directly caused by a Force Majeure has persisted continuously for 730 or more days after the commencement of Force Majeure, provided that the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the end of such Transmission System Outage; or (e) a Buyer Termination Event occurs. Any termination pursuant to this section 16.1 shall be effective immediately upon delivery of the notice of termination to the Seller.

Termination by the Buyer. In addition to i. If the Buyer terminates this Call-Off Contract for cause in accordance with the Call-Off Contract, any other right to terminate this EPA expressly set out in any other provision Spend Commitment Shortfall Payment obligations or VMware Cloud Spend Commitment Shortfall Payment obligations arising after the effective date of this EPAsuch termination will not apply. If applicable, the Buyer may terminate this EPA, by notice Supplier will refund the remaining balance of any Upfront Payment paid to the Seller ifSupplier for the Contract Year of such termination, less any incurred and unpaid fees for the Eligible Services as of the effective date of such termination. ii. Subject to 11bii(4) to below, if the Buyer terminates this Call-Off Contract for convenience in accordance with the Call-Off Contract, the following process will apply in accordance with the Enterprise Tier Discount Scheme: (1) If the Buyer has met the aggregate Spend Commitment, then no Return Amount will be required to be made to the Supplier; (2) If Buyer has not met the aggregate Spend Commitment, then, subject to clause 11bii(3) below, the Spend Commitment Shortfall Payment: (a) can be offset (in full or in part) against any positive amount from the Seller has failed to obtain all Material Permits on or before the date aggregate Operational Spend that is over and above the earlier of: (i) Guaranteed CODaggregate Operational Commitment amount at the time of termination; and (b) if, after the Buyer applies the offsetting in accordance with clause 11bii(2)(a) above, there remains a positive Spend Commitment Shortfall Payment amount, the Buyer will pay the Supplier the lesser of: (i) the remaining positive Spend Commitment Shortfall Payment amount , and (ii) the third anniversary Return Amount. (3) The Buyer acknowledges and agrees that: (a) overspend against the Operational Spend used to partially or fully offset an individual Buyer’s Spend Commitment Shortfall Payment under clause 11bii(2)(a) above can only be used once at the overall group level for this purpose. The second and any subsequent instance of any participant in the Effective Date; provided Enterprise Tier Discount Scheme terminating their Call-Off Contract for convenience will take into account any overspend sums that have been previously offset in this way when calculating the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the date on which the Seller has secured all Material Permits, and if the Seller has not already delivered a notice of termination under subsection 16.2(a)available group level overspend for any future offsetting; (b) COD does not occur by Guaranteed COD plus 365 days plus all Force Majeure Days (not exceeding 180 Force Majeure Days), provided that if more than one participant in the Seller can demonstrate on or before such date by clear and convincing evidence acceptable to the Buyer, acting reasonably, that construction of the Incremental Seller’s Plant and the integration of the Incremental Seller’s Plant into the Seller’s Plant is 80% complete by such date, the Buyer may terminate this EPA under this provision, by notice to the Seller, only if the Seller fails to achieve COD within a further 180 days plus any further Force Majeure Days (not exceeding 180 Force Majeure Days) after such date, and provided further that the Buyer shall be entitled Enterprise Tier Discount Scheme wishes to terminate this EPA under this provision only if their Call-Off Contract for convenience in a given month, any available overspend against the Buyer delivers Operational Spend will be shared between the terminating Enterprise Tier Discount Scheme participants on a termination notice before COD;pro-rata basis for the purposes of offsetting each individual participant’s Spend Commitment Shortfall Payment; and (c) either Party has received a notice from the other Party invoking Force Majeure and offsetting mechanism under clause 11bii(2)(a) will not apply in the Force Majeure has not been terminated by event the date that is 730 days after Buyer terminates the Call-Off Contract within the last three (3) months of the Discount Term. In this case, the Buyer will pay the Supplier the lesser of: (i) the total value of the aggregate Spend Commitments under this Addendum, less the Commitment-Eligible Fees the Buyer paid during the Discount Term as of the effective date of notice invoking Force Majeuretermination, provided that and (ii) the Return Amount. (4) Notwithstanding anything in this Section 11bii, the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the end of the Force Majeure; (d) a Transmission System Outage that is directly caused by a Force Majeure has persisted continuously for 730 or more days after the commencement of Force Majeure, provided that the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the end of such Transmission System Outage; or (e) a Buyer Termination Event occurs. Any termination pursuant to this section 16.1 shall be effective immediately upon delivery of the notice of termination to the Sellermust meet its obligations set forth in Section 7b.

Termination by the Buyer. In addition to any other right to terminate this EPA expressly set out in any other provision of this EPA, the (a) The Buyer may terminate this EPA, Agreement by notice in writing to the Seller if: (ai) prior to or at Completion, the Buyer becomes aware of a breach of Seller Warranty or the Seller’s obligations under clause 5.1 that is likely to result in Claim for more than three hundred million U.S. dollars (US$300,000,000) and such breach remains subsisting and is not waived by the Buyer at Completion or in the Buyer’s reasonable opinion is not likely to cease to subsist at Completion; (ii) at any time prior to Completion, if the Seller becomes Insolvent; (iii) at any time prior to Completion, if the PRL 15 Title is revoked or for any reason the Seller no longer holds sufficient interest in the PRL 15 Title to transfer the Assigned Interest to the Buyer as contemplated by this Agreement; (iv) at any time prior to Completion, if there is a Material Adverse Effect; or (v) at Completion, a Fundamental Warranty that has failed been breached remains subsisting at Completion and that breach is not waived by the Buyer at or prior to obtain all Material Permits on or before Completion. (b) If the date that is Buyer exercises its rights under clause 6.2 to terminate this Agreement in respect of a breach of Seller Warranty, the earlier ofBuyer acknowledges and agrees that: (i) Guaranteed CODit does not have the right to make any Claims in relation to a breach of such Seller Warranty against the Seller under this Agreement or otherwise; and (ii) the third anniversary of the Effective Date; provided that the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the date on which it irrevocably releases the Seller has secured all Material Permits, and if from any Claims in relation to a breach of such Seller Warranty it may otherwise have in the Seller has not already delivered a notice of termination under subsection 16.2(a); (b) COD does not occur by Guaranteed COD plus 365 days plus all Force Majeure Days (not exceeding 180 Force Majeure Days), provided that if the Seller can demonstrate on or before future in relation to such date by clear and convincing evidence acceptable to the Buyer, acting reasonably, that construction of the Incremental Seller’s Plant and the integration of the Incremental Seller’s Plant into the Seller’s Plant is 80% complete by such date, the Buyer may terminate this EPA under this provision, by notice to the Seller, only if the Seller fails to achieve COD within a further 180 days plus any further Force Majeure Days (not exceeding 180 Force Majeure Days) after such date, and provided further that the Buyer shall be entitled to terminate this EPA under this provision only if the Buyer delivers a termination notice before COD;matters. (c) either Party has received a notice from the other Party invoking Force Majeure and the Force Majeure has not been terminated by the date that is 730 days after the date of notice invoking Force Majeure, provided that If the Buyer may does not exercise its rights under clause 6.2 to terminate this EPA Agreement in respect of a breach of Seller Warranty and Completion occurs, the Buyer acknowledges and agrees that: (i) it does not have the right to make any Claims in relation to a breach of such Seller Warranty against the Seller or any Seller Group Member under this provision only if Agreement or otherwise in relation to the relevant breach of such Seller Warranties of which the Buyer delivers a termination notice before was aware at the end time of Completion which gave rise to the Force Majeure;Buyer’s rights under clause 6.2; and (dii) it irrevocably releases the Seller and each Seller Group Member from any Claims in relation to a Transmission System Outage that is directly caused by a Force Majeure has persisted continuously for 730 or more days after breach of such Seller Warranty it may otherwise have in the commencement future in relation to those matters of Force Majeure, provided that which the Buyer may terminate this EPA under this provision only if was aware at the Buyer delivers a termination notice before the end time of such Transmission System Outage; or (e) a Buyer Termination Event occurs. Any termination pursuant to this section 16.1 shall be effective immediately upon delivery of the notice of termination Completion which gave rise to the SellerBuyer’s rights under clause 6.2.

Termination by the Buyer. In addition to i. If the Buyer terminates this Call-Off Contract for cause in accordance with the Call-Off Contract, any other right to terminate this EPA expressly set out in any other provision Spend Commitment Shortfall Payment obligations or VMware Cloud Spend Commitment Shortfall Payment obligations arising after the effective date of this EPAsuch termination will not apply. If applicable, the Buyer may terminate this EPA, by notice Supplier will refund the remaining balance of any Upfront Payment paid to the Seller ifSupplier for the Contract Year of such termination, less any incurred and unpaid fees for the Eligible Services as of the effective date of such termination. ii. Subject to 11bii(4) to below, if the Buyer terminates this Call-Off Contract for convenience in accordance with the Call-Off Contract, the following process will apply in accordance with the Enterprise Tier Discount Scheme: (1) If the Buyer has met the aggregate Spend Commitment, then no Re- turn Amount will be required to be made to the Supplier; (2) If Buyer has not met the aggregate Spend Commitment, then, subject to clause 11bii(3) below, the Spend Commitment Shortfall Payment: (a) can be offset (in full or in part) against any positive amount from the Seller has failed to obtain all Material Permits on or before the date aggregate Operational Spend that is over and above the earlier of: (i) Guaranteed CODaggregate Operational Commitment amount at the time of ter- mination; and (iib) if, after the Buyer applies the offsetting in accordance with clause 11bii(2)(a) above, there remains a positive Spend Com- mitment Shortfall Payment amount, the Buyer will pay the Sup- plier the lesser of: (i) the third anniversary of remaining positive Spend Commit- (3) The Buyer acknowledges and agrees that: (a) overspend against the Effective Date; provided that the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the date on which the Seller has secured all Material Permits, and if the Seller has not already delivered a notice of termination under subsection 16.2(a);Operational Spend used to partially or (b) COD does not occur by Guaranteed COD plus 365 days plus all Force Majeure Days (not exceeding 180 Force Majeure Days), provided that if more than one participant in the Seller can demonstrate on or before such date by clear and convincing evidence acceptable to the Buyer, acting reasonably, that construction of the Incremental Seller’s Plant and the integration of the Incremental Seller’s Plant into the Seller’s Plant is 80% complete by such date, the Buyer may terminate this EPA under this provision, by notice to the Seller, only if the Seller fails to achieve COD within a further 180 days plus any further Force Majeure Days (not exceeding 180 Force Majeure Days) after such date, and provided further that the Buyer shall be entitled Enterprise Tier Discount Scheme wishes to terminate this EPA under this provision only if their Call-Off Contract for conven- ience in a given month, any available overspend against the Buyer delivers Operational Spend will be shared between the terminating En- terprise Tier Discount Scheme participants on a termination notice before COD;pro-rata basis for the purposes of offsetting each individual participant’s Spend Commitment Shortfall Payment; and (c) either Party has received a notice from the other Party invoking Force Majeure and offsetting mechanism under clause 11bii(2)(a) will not apply in the Force Majeure has not been terminated by event the date that is 730 days after Buyer terminates the Call-Off Contract within the last three (3) months of the Discount Term. In this case, the Buyer will pay the Supplier the lesser of: (i) the total value of the aggregate Spend Commitments under this Addendum, less the Commitment-Eligible Fees the Buyer paid during the Dis- count Term as of the effective date of notice invoking Force Majeuretermination, provided that and (ii) the (4) Notwithstanding anything in this Section 11bii, the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the end of the Force Majeure; (d) a Transmission System Outage that is directly caused by a Force Majeure has persisted continuously for 730 or more days after the commencement of Force Majeure, provided that the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before the end of such Transmission System Outage; or (e) a Buyer Termination Event occurs. Any termination pursuant to this section 16.1 shall be effective immediately upon delivery of the notice of termination to the Sellermust meet its obligations set forth in Section 7b.

Termination by the Buyer. In addition to any other right to terminate this EPA expressly set out in any other provision of this EPA, the (a) The Buyer may terminate this EPA, deed at any time before Completion by notice in writing to the Seller if: (a1) a breach of a Seller’s Warranty occurs before Completion, and following the Seller has failed to obtain all Material Permits on or before the date that is the earlier lesser of: (iA) Guaranteed COD; and (ii) the third anniversary of the Effective Date; provided that the Buyer may terminate this EPA under this provision only if the Buyer delivers a termination notice before 30 days after the date on which the Seller Buyer has secured all Material Permitsgives a written notice of the breach of the Seller’s Warranty (Buyer Notice Date); and (B) the number of days between the Buyer Notice Date and the date immediately before Completion, the breach remains subsisting and if is not waived at Completion and constitutes grounds for a Claim where the reasonable estimate of Loss is not less than A$10 million; or (2) the Seller has not already delivered a notice of termination under subsection 16.2(a);becomes Insolvent. (b) COD does not occur by Guaranteed COD plus 365 days plus all Force Majeure Days (not exceeding 180 Force Majeure DaysIn the event that the Buyer exercises its rights under clause 6.2(a), provided that if the Seller can demonstrate on or before such date by clear and convincing evidence acceptable to the Buyer, acting reasonably, that construction of the Incremental Seller’s Plant and the integration of the Incremental Seller’s Plant into the Seller’s Plant is 80% complete by such date, the Buyer may terminate this EPA acknowledges and agrees that: (1) it does not have the right to make any Claims against the Seller under this provision, by notice to the Seller, only if deed or otherwise; and (2) it must irrevocably release the Seller fails from any Claims it may otherwise have in the future in relation to achieve COD within a further 180 days plus any further Force Majeure Days (not exceeding 180 Force Majeure Days) after such date, and provided further that the Buyer shall be entitled to terminate this EPA under this provision only if the Buyer delivers a termination notice before COD;matters. (c) either Party has received a notice from In the other Party invoking Force Majeure and the Force Majeure has not been terminated by the date that is 730 days after the date of notice invoking Force Majeure, provided event that the Buyer does not exercise its rights under clause 6.2(a) and Completion occurs or the Buyer is deemed not to have exercised its rights under clause 6.2(a) and Completion occurs, the Buyer acknowledges and agrees that: (1) the aggregate amount of all Claims it may terminate this EPA make against the Seller under this provision only if deed or otherwise in relation to the relevant breach of a Seller’s Warranty of which the Buyer delivers was aware at the time of Completion which gave rise to the Buyer’s rights under clause 6.2(a) (Completion Breach) is limited to A$10 million; and (2) to the extent that the aggregate amount of all Claims it makes in relation to a termination notice before Completion Breach exceeds $A10 million, it must irrevocably release the end of the Force Majeure;Seller from any such excess Claim amount. (d) a Transmission System Outage that is directly caused by a Force Majeure has persisted continuously for 730 or more days after the commencement The right of Force Majeure, provided that the Buyer may to terminate this EPA under this provision only deed pursuant to clause 6.2(a) if any of the Buyer delivers a termination notice before events referred to in clauses 6.2(a)(1) and 6.2(a)(2) occurs is without prejudice to the end ability of the Parties to agree amendments to the Transaction Agreements to address such event. In the event that such agreement is breached, clause 6.2(c) will operate subject to the terms of such Transmission System Outage; or (e) a Buyer Termination Event occurs. Any termination pursuant to this section 16.1 shall be effective immediately upon delivery of the notice of termination to the Selleragreement.