Net Out of Settlement Amounts. The Non-Defaulting Party shall calculate a Termination Payment by aggregating all Settlement Amounts due under this Agreement or any other agreement(s) between the Company and the BGS-RSCP Supplier for the provision of BGS Supply into a single amount: by netting out (a) all Settlement Amounts that are due or will become due to the Defaulting Party, plus at the option of the Non-Defaulting Party, any cash or other form of security then available to the Non- Defaulting Party and actually received, liquidated and retained by the Non-Defaulting Party, plus any or all other amounts due to the Defaulting Party under this Agreement or any other agreement(s) between the Company and the BGS-RSCP Supplier for the provision of BGS Supply against (b) all Settlement Amounts that are due or will become due to the Non-Defaulting Party, plus any or all other amounts due to the Non-Defaulting Party under this Agreement or any other agreement(s) between the Company and the BGS- RSCP Supplier for the provision of BGS Supply, so that all such amounts shall be netted out to a single liquidated amount; provided, however, that if the BGS-RSCP Supplier is the Defaulting Party and the Termination Payment is due to the BGS-RSCP Supplier, the Company shall be entitled to retain a commercially reasonable portion of the Termination Payment, which may be equal to the entire amount of the Termination Payment, as security for additional amounts that may be determined to be due and owing by the BGS-RSCP Supplier as Damages and further provided that any previously attached security interest of the Company in such retained amounts shall continue. The Termination Payment shall be due to or due from the Non-Defaulting Party as appropriate. If the Termination Payment has been retained by the Company as security for additional amounts that may be determined to be due and owing by the BGS-RSCP Supplier, and if, upon making a final determination of Damages, the Termination Payment, or any portion thereof, is to be made to the BGS-RSCP Supplier, the Company will pay simple interest on the Termination Payment amount being made to the BGS-RSCP Supplier. Simple interest will be calculated at the lower of the Interest Index or six (6) percent per annum.
Net Out of Settlement Amounts. The Non-Defaulting Party will aggregate all Settlement Amounts into a single amount by netting out (a) all amounts that are due to the Defaulting Party for Product that has been Delivered and not yet paid for, plus, at the option of the Non-Defaulting Party, any cash, security or other Performance Assurance then available to the Non-Defaulting Party, plus any or all other amounts due to the Defaulting Party under this Agreement against (b) all Settlement Amounts that are due to the Non-Defaulting Party, plus any or all other amounts due to the Non-Defaulting Party under this Agreement, so that all such amounts will be netted out to a single liquidated amount (the “Termination Payment”) payable by the Defaulting Party. The Termination Payment, if any, is due from the Defaulting Party to the Non-Defaulting Party within two Business Days following notice.
Net Out of Settlement Amounts. The Non-Defaulting Party shall aggregate all Settlement Amounts into a single amount by: netting out (a) all Settlement Amounts that are due to the Defaulting Party, plus, at the option of the Non-Defaulting Party, any cash or other form of security then available to the Non-Defaulting Party pursuant to Article Eight or the Collateral Annex, plus any or all other amounts due to the Defaulting Party under this Agreement against (b) all Settlement Amounts that are due to the Non-Defaulting Party, plus, at the option of the Non- Defaulting Party, any cash or other form of liquid security then in the possession of the Defaulting Party or its agent pursuant to Article 8 or the Collateral Annex, plus any or all other amounts due to the Non- Defaulting Party under this Agreement, so that all such amounts shall be netted out to a single liquidated amount (the “Termination Payment”) payable by one Party to the other. The Termination Payment shall be due to or due from the Non-Defaulting Party as appropriate.”
22. Section 5.4—
Net Out of Settlement Amounts. Section 5.3 is replaced in its entirety, as follows:
Net Out of Settlement Amounts.
(a) In the Event of Default with respect to Buyer as the “Defaulting Party”, the following shall occur:
(i) Buyer shall return Seller’s Performance Assurance held by Buyer by the date the Termination Payment is due;
(ii) with respect to a Designated System, Seller shall calculate a Settlement Amount for RECs that were Delivered but were not yet paid by Buyer. Specifically, with respect to a Designated System, if the number of RECs Delivered from such Designated System is greater than the Designated System Paid REC Quantity, then with respect to such Designated System, the Settlement Amount shall be equal to the multiplicative product of (A) the Contract Price and (B) the positive difference between (i) the number of RECs that has been Delivered from such Designated System (not to exceed the Designated System Contract Maximum REC Quantity) and (ii) the Designated System Paid REC Quantity. For avoidance of doubt, if the number of RECs Delivered from such Designated System is equal to or less than the Designated System Paid REC Quantity, then the Settlement Amount for such Designated System shall be zero;
(iii) Seller shall calculate the Termination Payment by aggregating all Settlement Amounts into a single liquidated amount by summing the calculated Settlement Amount with respect to a Designated System across all Designated Systems; and
(iv) the Termination Payment, if any, is due to Seller as the Non-Defaulting Party within twenty (20) Business Days following notice by Seller to Buyer pursuant to Section 9.3.
(b) In the Event of Default with respect to Seller as the “Defaulting Party”, the following shall occur:
(i) With respect to a Designated System, Buyer shall calculate a Settlement Amount as the sum of:
(A) Collateral Requirement of such Designated System;
(B) the multiplicative product of (1) the Contract Price and (2) the result obtained by subtracting the number of RECs that has been Delivered from such Designated System (not to exceed the Designated System Contract Maximum REC Quantity) from the Designated System Paid REC Quantity. For avoidance of doubt, if the number of RECs Delivered from such Designated System is greater than the Designated System Paid REC Quantity, then this calculation shall be zero.
(ii) Buyer shall calculate the Termination Payment by aggregating all Settlement Amounts into a single liquidated amount by summing the calculated Settlement Amount with respect to a Designated System across all Designated Systems.
(iii) The T...
Net Out of Settlement Amounts. In the Event of Default with respect to Buyer as the “Defaulting Party”, the following shall occur:
Net Out of Settlement Amounts. The Non-Defaulting Party shall aggregate all Settlement Amounts into a single amount by: netting out (a) all Settlement Amounts that are due to the Defaulting Party (if any), plus, at the option of the Non-Defaulting Party, any cash or other form of security then available to the Non-Defaulting Party pursuant to Article Eight, plus any or all other amounts due to the Defaulting Party under this Agreement against (b) all Settlement Amounts that are due to the Non-Defaulting Party, plus any or all other amounts due to the Non-Defaulting Party under this Agreement, so that all such amounts shall be netted out to a single liquidated amount (the “Termination Payment”). If the Non-Defaulting Party’s aggregate Gains exceed its aggregate Losses and Costs, if any, resulting from the termination of this Agreement, the Termination Payment shall be zero.
Net Out of Settlement Amounts. The Non-Defaulting Party shall aggregate all Settlement Amounts into a single amount by: netting out (a) all Settlement Amounts that are due to the Defaulting Party, plus, at the option of the Non- Defaulting Party, any cash or other form of security then available to the Non-Defaulting Party pursuant to Article 14, plus any or all other amounts due to the Defaulting Party under this Agreement against (b) all Settlement Amounts that are due to the Non-Defaulting Party, plus any or all other amounts due to the Non-Defaulting Party under this Agreement, so that all such amounts shall be netted out to a single liquidated amount (the “Termination Payment”) payable by one Party to the other. The Termination Payment shall be due to or due from the Non-Defaulting Party as appropriate.
Net Out of Settlement Amounts. The Non-Defaulting Party will aggregate all Settlement Amounts into a single amount by netting out the following:
(i) all amounts that are due to the Defaulting Party, if the Defaulting Party is Seller, for RECs that have been delivered and not yet paid for, plus, at the option of the Non-Defaulting Party, any or all other amounts due to the Defaulting Party under this Master Agreement; against
(ii) all Settlement Amounts that are due to the Non-Defaulting Party under this Master Agreement, so that all such amounts will be netted out to a single liquidated amount (the “Termination Payment”) payable by the Non-Defaulting Party. The Termination Payment, if any, is due from the Defaulting Party to the Non-Defaulting Party within five (5) Business Days following notice.
Net Out of Settlement Amounts. The Non-Defaulting Party shall calculate an amount (the “Termination Payment”) by subtracting any and all amounts due from the Non-Defaulting Party to the Defaulting Party under this Agreement with respect to deliveries of Products or other matters completed prior to the Early Termination Date from the sum of (x) the Settlement Amount due from the Defaulting Party to the Non-Defaulting Party and (y) any or all other amounts due and owing from the Defaulting Party to the Non-Defaulting Party under this Agreement with respect to deliveries of Products or other matters completed prior to the Early Termination Date, less (z) if Buyer is the Non-Defaulting Party, any cash held by Buyer from prior draws upon Seller Security that has not been applied to other amounts owed by Seller plus, at Buyer’s option, any amounts that may prospectively be drawn upon the Seller Security. The Termination Payment, if any, shall be immediately due from the Defaulting Party to the Non-Defaulting Party. For the avoidance of doubt, notwithstanding any provision of this Agreement that may be interpreted to the contrary, the Defaulting Party shall not be entitled to receive or recover a Termination Payment.
