Common use of Termination Charges Clause in Contracts

Termination Charges. 17.5.1 If ComEd terminates this Agreement or Purchase Order for cause pursuant to Section 17.1, Contractor shall not be entitled to receive any further payments under this Agreement or a Purchase Order until all Work contemplated by this Agreement or Purchase Order, as applicable, has been fully performed as follows by ComEd or by some other person on behalf of ComEd. ComEd shall have the right to prosecute the physical completion of the Work by means other than the use of Contractor, and in doing so ComEd shall have the right to exercise its reasonable discretion as to the manner, method, and reasonableness of the costs of completing the Work. Contractor shall pay ComEd only those amounts mutually agreed in writing, with such agreement not to be unreasonably withheld, conditioned or delayed prior to commencement of such Work by third party contractors, and such payment shall discharge Contractor of any further liability therefrom. 17.5.2 If ComEd terminates the performance of the Work or this Agreement in accordance with Section 17.2 or Section 17.4, or if Contractor terminates the performance of the Work or this Agreement pursuant to Section 17.1, ComEd will promptly pay Contractor in full for all Materials and Services delivered and accepted prior to the date of termination, all reasonable and unavoidable disbursements and expenses that Contractor has incurred or become obligated for prior to the date of termination for Materials and Services (including a payment on a percentage-of-completion basis for Services not accepted as of the date of termination), all Equipment specified in Purchase Orders dated less than *** calendar days prior to the date of notice of termination, reimbursement to Contractor of the total non-cancelable and non-recoverable costs incurred by Contractor up to the effective date of termination, plus a *** xxxx-up on such costs (unless such termination is under Section 17.4). Upon such payment, ComEd shall be entitled to all Material specially accumulated for the Work terminated, shipped at its expense to a place designated by ComEd. In no event shall the aggregate termination charges plus payment for the Work exceed the price of the Work set forth in this Agreement or the relevant Purchase Order. Payments by ComEd hereunder will be credited against prior amounts deposited or paid by ComEd under this Agreement or the Purchase Order. If the sum of all previous deposits and payments under this Agreement with respect to the Work terminated exceeds all amounts owed to Contractor hereunder, the excess shall be immediately refunded to ComEd. Contractor agrees to take reasonable steps to minimize termination expenses.

Termination Charges. 17.5.1 If ComEd terminates this Agreement or Purchase Order for cause (a) Upon early termination of any Scheduled Service pursuant to Section 17.16.01(c), Contractor the Recipient shall reimburse the Provider the following amounts of all “kill” fees, breakage fees and other similar fees actually paid by such Provider or any of its Affiliates to unaffiliated third-parties that were engaged solely in order to provide such Scheduled Service, which fees were incurred in connection with the early termination of the Scheduled Service and to the extent such “kill” fees, breakage fees and similar fees would not be entitled have been incurred had the Recipient continued to receive the applicable Scheduled Service for the originally contemplated Scheduled Term thereof: (i) during the Initial Scheduled Term, fifty percent (50%) of all such fees; and (ii) during the Extended Scheduled Term, one hundred percent (100%) of all such fees. In addition, upon early termination of any further payments Scheduled Service pursuant to Section 6.01(c), the Recipient shall reimburse the Provider for any costs that would not have been incurred had the Recipient continued to receive the applicable Scheduled Service for the originally contemplated Scheduled Term or Extended Scheduled Term thereof, as the case may be. Each Provider shall use commercially reasonable efforts to minimize the existence and amount of such early termination charges, “kill” fees, breakage fees and other amounts otherwise due and payable under this Agreement or a Purchase Order until all Work contemplated by Section 6.02. All termination charges, “kill” fees, breakage fees and other amounts due and payable under this Agreement or Purchase Order, as applicable, has been fully performed as follows by ComEd or by some other person on behalf of ComEd. ComEd Section 6.02 shall have the right to prosecute the physical completion of the Work by means other than the use of Contractor, be due and in doing so ComEd shall have the right to exercise its reasonable discretion as payable to the manner, method, and reasonableness of the costs of completing the Work. Contractor shall pay ComEd only those amounts mutually agreed in writing, with such agreement not to be unreasonably withheld, conditioned or delayed prior to commencement of such Work by third party contractors, and such payment shall discharge Contractor of any further liability therefrom. 17.5.2 If ComEd terminates the performance of the Work or this Agreement Provider in accordance with Section 17.2 Article III. (b) If all or Section 17.4, or if Contractor terminates the performance a portion of the Work Agreed Price for a Scheduled Service is a Pass-Through Charge or this Agreement includes a payment to an unaffiliated third-party, which charges or payment can be reduced by the early termination of the Scheduled Service, then (i) the Provider shall endeavor to provide the Recipient with written notice of any notice period for termination required by such unaffiliated third-party in order to attain a reduction in payment or cancellation (a “Notice of Third-Party Notice Period”) and (ii) if a Recipient elects to terminate such Scheduled Service pursuant to Section 17.16.01(c)(i) and such Recipient has, ComEd will promptly pay Contractor reasonably in full advance of such election, received a Notice of Third-Party Notice Period stating that the notice period for all Materials and Services delivered and accepted prior to termination of such unaffiliated third party is greater than ninety (90) days, then (A) the date of termination, all reasonable and unavoidable disbursements and expenses that Contractor has incurred or become obligated for prior to the date Recipient shall provide a notice of termination pursuant to Section 6.01(c)(i) that is greater than such notice period for Materials and Services (including a payment on a percentage-of-completion basis for Services not accepted as of the date of termination), all Equipment specified in Purchase Orders dated less than *** calendar days prior to the date of notice of termination, reimbursement to Contractor of the total non-cancelable and non-recoverable costs incurred by Contractor up to the effective date of termination, plus a *** xxxx-up on such costs (unless such termination is under Section 17.4). Upon such payment, ComEd shall be entitled to all Material specially accumulated for the Work terminated, shipped at its expense to a place designated by ComEd. In no event shall the aggregate termination charges plus payment for the Work exceed the price of the Work set forth in this Agreement the Notice of Third-Party Notice Period or (B) the Recipient shall pay the difference in Pass-Through Charges or payments to the unaffiliated third-party attributable to the difference in notice that the Recipient provided to the Provider and the amount of notice set forth in the Notice of Third-Party Notice Period. For example, if a Recipient receives a Notice of Third-Party Notice Period stating that a vendor of a Scheduled Service requires the Provider to provide 180 days’ prior notice to terminate a service that Recipient receives hereunder, then Recipient would either need to give 181 days’ advance notice to terminate such Service and bear no additional Pass-Through Charge for such Service upon termination or the relevant Purchase Order. Payments by ComEd hereunder will be credited against Recipient could provide ninety (90) days’ prior amounts deposited or paid by ComEd under this Agreement or notice of termination and would pay ninety-one (91) additional days of Pass-Through Charges after termination of the Purchase Order. If the sum of all previous deposits and payments under this Agreement with respect to the Work terminated exceeds all amounts owed to Contractor hereunder, the excess shall be immediately refunded to ComEd. Contractor agrees to take reasonable steps to minimize termination expensesService.

Termination Charges. 17.5.1 If ComEd terminates this Agreement (a) Upon early termination of any Scheduled Service or Purchase Order for cause Scheduled Facility pursuant to Section 17.16.01(c), Contractor the Recipient shall reimburse the Provider the following amounts of all “kill” fees and other similar fees actually paid by such Provider or any of its Affiliates to unaffiliated third-parties that were engaged solely in order to provide such Scheduled Service or Scheduled Facility, which fees were incurred in connection with the early termination of the Scheduled Service or Scheduled Facility and to the extent such “kill” fees and similar fees would not be entitled have been incurred had the Recipient continued to receive the applicable Scheduled Service or Scheduled Facility for the originally contemplated Scheduled Term thereof: (i) during the Initial Scheduled Term – fifty percent (50%) of all such fees; and (ii) during the Extended Scheduled Term – one hundred percent (100%) of all such fees. In addition, upon early termination of any further payments Scheduled Service or Scheduled Facility pursuant to Section 6.01(c), the Recipient shall reimburse the Provider for any costs that would not have been incurred had the Recipient continued to receive the applicable Scheduled Service or Scheduled Facility for the originally contemplated Scheduled Term or Extended Scheduled Term thereof, as the case may be. Each Provider shall use commercially reasonable efforts to minimize the existence and amount of such early termination charges, “kill” fees and other amounts otherwise due and payable under this Agreement or a Purchase Order until all Work contemplated by Section 6.02. All termination charges, “kill” fees and other amounts due and payable under this Agreement or Purchase Order, as applicable, has been fully performed as follows by ComEd or by some other person on behalf of ComEd. ComEd Section 6.02 shall have the right to prosecute the physical completion of the Work by means other than the use of Contractor, be due and in doing so ComEd shall have the right to exercise its reasonable discretion as payable to the manner, method, and reasonableness of the costs of completing the Work. Contractor shall pay ComEd only those amounts mutually agreed in writing, with such agreement not to be unreasonably withheld, conditioned or delayed prior to commencement of such Work by third party contractors, and such payment shall discharge Contractor of any further liability therefrom. 17.5.2 If ComEd terminates the performance of the Work or this Agreement Provider in accordance with Section 17.2 Article III. (b) If all or Section 17.4, or if Contractor terminates the performance a portion of the Work Scheduled Service Charge for a Scheduled Service or this Agreement access to a Scheduled Facility is a Pass-Through Charge or includes a payment to an unaffiliated third-party, which payment can be reduced by the early reduction or early termination of the Scheduled Service or access to the Scheduled Service, then if a Recipient reduces or terminates such Scheduled Service or access to a Scheduled Facility pursuant to Section 17.16.01(c)(i) and the notice period for reduction or termination by the Provider or its Affiliate of such unaffiliated third party is greater than 30 days but less than 181 days, ComEd will promptly then (i) the Recipient shall provide a notice of termination pursuant to Section 6.01(c)(i) that is greater than such notice period for termination by Provider or (ii) the Recipient shall pay Contractor the difference in full for all Materials and Services delivered and accepted prior Pass-Through Charges or payments to the date of termination, all reasonable and unavoidable disbursements and expenses that Contractor has incurred or become obligated for prior unaffiliated third-party attributable to the date difference in notice that the Recipient provided to the Provider and the amount of notice that the Provider or its Affiliate would need to give to the third party so as to attain the reduction or cancelation. For example, if a vendor of a Pass-Through Service requires the Provider to provide 90 days’ prior notice to reduce or terminate a service that Recipient receives hereunder, then Recipient would either need to give 91 days’ advance notice to terminate such Service and bear no additional Pass-Through Charge for such Service upon termination or the Recipient could provide 30 days’ prior notice of termination for Materials and Services (including a payment on a percentagewould pay 61 additional days of Pass-of-completion basis for Services not accepted as Through Charges after termination of the date of termination), all Equipment specified in Purchase Orders dated less than *** calendar days prior to the date of notice of termination, reimbursement to Contractor of the total non-cancelable and non-recoverable costs incurred by Contractor up to the effective date of termination, plus a *** xxxx-up on such costs (unless such termination is under Section 17.4). Upon such payment, ComEd shall be entitled to all Material specially accumulated for the Work terminated, shipped at its expense to a place designated by ComEd. In no event shall the aggregate termination charges plus payment for the Work exceed the price of the Work set forth in this Agreement or the relevant Purchase Order. Payments by ComEd hereunder will be credited against prior amounts deposited or paid by ComEd under this Agreement or the Purchase Order. If the sum of all previous deposits and payments under this Agreement with respect to the Work terminated exceeds all amounts owed to Contractor hereunder, the excess shall be immediately refunded to ComEd. Contractor agrees to take reasonable steps to minimize termination expensesService.

Termination Charges. 17.5.1 If ComEd terminates No Termination Charges shall apply under this Agreement unless the applicable Transaction Document states that such Charges will apply. The Parties acknowledge and agree that: (a) any Termination Charges specified in a Transaction Document shall be the maximum amount Sears will be required to pay in the event of a termination for convenience of the Services under such Transaction Document (regardless of whether such Services are terminated at one time, or Purchase Order in a series of terminations (such as for cause partial terminations)); (b) Termination Charges shall decline over time and, (iii) Termination Charges shall unless otherwise specified in a Transaction Document, no longer apply upon the normal expiration of a Transaction Document or during any renewal period thereof. Furthermore, the inclusion of such Termination Charges in a Transaction Document shall not limit CSC’s obligation to mitigate any Termination Charges associated with the termination of such Transaction Document, nor obligate Sears to pay any Termination Charges in excess of the actual Termination Charges. If Sears terminates for convenience all or a material portion of the Services under any Transaction Document that is subject to Termination Charges, CSC shall calculate and invoice Sears (pursuant to Section 17.114.1 (Invoicing)), Contractor for the Termination Charges as specified in the Transaction Document. A change in the amount of Services that the Eligible Recipients receive under this Agreement shall not be entitled deemed a partial termination (for which Termination Charges would be payable) except as expressly provided otherwise in the applicable Transaction Document. Sears may, from time to receive time, request that CSC calculate the amount of Termination Charges Sears would be required to pay in the event Sears were to terminate, for convenience, in whole or in part, any further payments under this Agreement or Services. CSC shall provide to Sears a Purchase Order until all Work contemplated by this Agreement or Purchase Order, as applicable, has been fully performed as follows by ComEd or by some other person on behalf of ComEd. ComEd shall have the right to prosecute the physical completion of the Work by means other than the use of Contractor, and in doing so ComEd shall have the right to exercise its reasonable discretion as to the manner, method, and reasonableness of the costs of completing the Work. Contractor shall pay ComEd only those amounts mutually agreed in writing, with such agreement not to be unreasonably withheld, conditioned or delayed prior to commencement detailed estimate of such Work Charges (broken out by third party contractors, and such payment shall discharge Contractor of any further liability therefrom. 17.5.2 If ComEd terminates the performance of the Work or this Agreement in accordance with Section 17.2 or Section 17.4, or if Contractor terminates the performance of the Work or this Agreement pursuant to Section 17.1, ComEd will promptly pay Contractor in full for all Materials and Services delivered and accepted prior to the date of termination, all reasonable and unavoidable disbursements and expenses that Contractor has incurred or become obligated for prior to the date of termination for Materials and Services (including a payment on a percentage-of-completion basis for Services not accepted as of the date of termination), all Equipment specified in Purchase Orders dated less than *** calendar days prior to the date of notice of termination, reimbursement to Contractor of the total non-cancelable and non-recoverable costs incurred by Contractor up to the effective date of termination, plus a *** xxxx-up on such costs (unless such termination is under Section 17.4). Upon such payment, ComEd shall be entitled to all Material specially accumulated for the Work terminated, shipped at its expense to a place designated by ComEd. In no event shall the aggregate termination charges plus payment for the Work exceed the price of the Work categories set forth in this Agreement or the relevant Purchase Order. Payments by ComEd hereunder will be credited against prior amounts deposited or paid by ComEd under this Agreement or the Purchase Orderdefinition of Termination Charges), within 30 days after its receipt of Sears’ request. If Sears elects to terminate, for convenience, any Services for which such an estimate has been requested, then the sum of all Termination Charges applicable to such termination shall not exceed the lower of: (x) the Termination Charges set forth in the applicable Transaction Document, minus any Termination Charges Sears is already obligated to pay due to previous deposits terminations under such Transaction Document, and payments under (y) the amount set forth in the CSC’s estimate pursuant to this Agreement with respect to the Work terminated exceeds all amounts owed to Contractor hereunder, the excess shall be immediately refunded to ComEd. Contractor agrees to take reasonable steps to minimize termination expensesSection 23.3 (Termination Charges).