Common use of Declaration of Early Termination Date Clause in Contracts

Declaration of Early Termination Date. If an Event of Default with respect to a Defaulting Party shall have occurred and is continuing, the other Party (“Non-Defaulting Party”) shall have the right (a) to send Notice, designating a day, no earlier than the day such Notice is deemed to be received and no later than twenty (20) days after such Notice is deemed to be received, as an early termination date of this Agreement (“Early Termination Date”), (b) to terminate the Transaction and end the Delivery Term effective as of the Early Termination Date, (c) in the event of any other Event of Default collect liquidated damages which shall be calculated in accordance with Section 5.3 below, defined as a “Termination Payment”, (d) withhold any payments due to the Defaulting Party under this Agreement, (e) suspend performance, (f) in the case of PacifiCorp, exercise its rights pursuant to Sections 4.2 and 4.3 to draw upon and retain Performance Assurance, and (g) if PacifiCorp is the Non-Defaulting Party, then PacifiCorp may also Notify Seller that PacifiCorp shall return to Seller some or all of the Product that PacifiCorp purchased or received prior to the Early Termination Date but has not retired for PacifiCorp’s compliance with the California Renewables Portfolio Standard (“Refund”), in accordance with Section 5.3(b) and Seller shall pay PacifiCorp the Refund Amount associated with the Product returned to Seller. The “Termination Payment” will be the aggregate of all Settlement Amounts netted into a single amount, where the “Settlement Amount” is equal to the Losses or Gains, and Costs, which the Non-Defaulting Party incurs as a result of the termination of this Agreement and, if the Non-Defaulting Party is PacifiCorp and PacifiCorp has elected to exercise its Refund right, then the Refund Amount for the Product returned to Seller shall be included. Additionally, if PacifiCorp is owed a refund due to an Ineligible Product Determination and such amount has not been paid by Seller prior to the Early Termination Date, the such amount shall also be included in the Settlement Amount. 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. Disputes regarding the Termination Payment shall be determined in accordance with Article 9.