Common use of Default Remedies and Termination Clause in Contracts

Default Remedies and Termination. 13.01 The remedies set forth in this Section 13.01 shall cover the non-defaulting Party’s remedies for the defaulting Party’s failure to perform prior to any termination for default that may occur. a) As an alternative to the damages provision below, if the Parties mutually agree in writing, the non-performing Party may schedule deliveries or receipts, as the case may be, pursuant to such terms as the Parties agree in order to discharge some or all of the obligation to pay damages. In the absence of such agreement, the damages provision of this Article shall apply. b) Unless excused by Force Majeure, if Seller fails to deliver the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Seller shall pay to Buyer an amount for each ton of Coal of such deficiency equal to (i) the lowest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Buyer is able, or (ii) at the time of Seller’s breach, would be able to purchase or otherwise receive comparable supplies of Coal of comparable quality minus the base price agreed to for the specific Transaction; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. c) Unless excused by Force Majeure, if Buyer fails to accept delivery of the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Buyer shall pay to Seller an amount for each ton of Coal of such deficiency equal to (i) the base price agreed to for the specific Transaction minus the highest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Seller is able, or (ii) would be able, to sell or otherwise dispose of the Coal at the time of Buyer’s breach; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. d) Buyer and Seller shall be subject to commercially reasonable good faith obligation to mitigate any damages hereunder. 13.02 The occurrence of any of the following shall constitute an “Event of Default”: a) Failure by either Party to pay any amounts due. b) Either Party materially breaches any contractual obligation under this Agreement. c) Either Party (i) makes any general assignment or any general arrangement for the benefit of creditors, (ii) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors or has such a petition involuntarily filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing, (iii) otherwise becomes bankrupt or insolvent (however evidenced), or (iv) is unable to pay its debts as they fall due. 13.03 In addition to the non-defaulting Party’s remedies under this Article, in the Event of Default with respect to a specific Transaction, the non-defaulting Party shall have the same rights with respect to such specific Transaction as it has under this Agreement in addition to the right to exercise all other rights and remedies available under applicable law.

Default Remedies and Termination. 13.01 The remedies set forth in this Section 13.01 shall cover the non-defaulting Party’s 's remedies for the defaulting Party’s 's failure to perform prior to any termination for default that may occur; provid- ed, however, that such remedies may be available to a non-defaulting Party after termination of a Transaction when so provided in this Agreement. (a) As an alternative to the damages provision belowprovisions in Section 13.01 (b) and 13.01(c), if the Parties mutually agree in writing, the non-performing Party may schedule deliveries or receipts, as the case may be, pursuant to such terms as the Parties agree in order to discharge some or all of the obligation to pay damages. In the absence of such agreement, the damages provision provi- sions of this Article 13 shall apply. (b) Unless excused by Force Majeureother provisions of this Agreement, if Seller fails in any Quarter to deliver tender for delivery the quantity Scheduled Amount for that Quarter under a Transaction and Buyer does not exercise its right under Section 4.04 to reduce the quantities of Coal in accordance with to be supplied under that Transaction or to require Seller to make up the applicable Confirmation Deficit Amount for that Quarter, Buyer may purchase replacement coal and this Agreement, hold Seller shall pay to Buyer an amount liable for each ton the cover cost of Coal of such deficiency equal to replacement coal under the following circumstances and conditions: (i) Buyer shall first determine the lowest reasonable market price on amount of the Deficit Amount for that Quarter (calculated as provided in Section 4.04) and shall give Seller written notice of the Deficit Amount. Buyer may then buy replacement coal (of substantially similar, but not exactly the same, quality) from one or more third parties in an equivalent per mmBtu SO2 adjusted basis amount up to (but not exceeding) the Deficit Amount and arrange to have such replacement coal supplied at which such times as Buyer is able, or deems appro- priate during the six (6)-month period after the end of the Deficit Quarter. (ii) at Seller shall be liable to Buyer for the time following amounts: (A) the difference between (1) the actual delivered cost incurred by Buyer (including, without limitation, the costs of transporta- tion, SO2 emission allowances, NOx emission allowances (if applicable), and taxes) to ob- tain such replacement coal and (2) the delivered cost of Seller’s breach's Coal (including, would without limitation, the costs of transportation, SO2 emission allowances, NOx emission allowances (if applicable), and taxes) as of the end of the Deficit Quarter; and (B) ▇▇▇▇▇'s incidental ex- penses. Notwithstanding the foregoing provisions of this Section 13.01(b)(ii), any expenses saved as a consequence of Seller's failure to deliver shall be able deducted from the sum of amounts (A) and (B) above; and if the net amount calculated pursuant to purchase or otherwise receive comparable supplies of Coal of comparable quality minus the base price agreed to for the specific Transaction; except that if such difference this Section 13.01(b)(ii) is negative, then neither Party Seller shall not have any obligation to make any deficiency payment to Buyer with respect to the otherDeficit Amount under Section 13.01(b). (iii) After Buyer has determined the amounts for which Seller is liable under Section 13.01(b)(ii), Buyer shall promptly prepare and submit to Seller an invoice for such amounts. Seller shall pay the amounts reflected in such invoice within thirty (30) days after Seller has received such invoice. If Seller fails to pay such amounts within such thirty (30)-day period, Buyer may exercise its rights under Sections 10.04 and 10.05 with respect to such amounts and may recover any remaining amounts from Seller as provided by law. (c) Unless excused by Force Majeureother provisions of this Agreement, if Buyer fails in any Quarter to accept delivery of the quantity Scheduled Amount for that Quarter under a Transaction and Seller does not exercise its right under Section 4.03 to reduce the remaining quantities of Coal in accordance with the applicable Confirmation and this Agreementto be supplied under that Transaction, Seller may require Buyer shall to pay to Seller an amount for each ton of Coal of such deficiency equal to the Deficit Amount under the following circumstances and conditions: (i) Seller shall first determine the base price agreed amount of the Deficit Amount for that Quarter (calculated as provided in Section 4.03) and shall give Buyer written notice of the Deficit Amount. (ii) Buyer shall be liable to Seller for the specific Transaction minus following amounts: (A) the difference between (1) the Base Price set forth in the Applicable Confirmation and (2) the highest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Seller is able, or (ii) would be able, to sell or otherwise dispose of the Coal at within the time six (6)-month period after the end of Buyer’s breachthe Deficit Quarter; except that and (B) Seller's incidental expenses. Notwithstanding the forego- ing provisions of this Section 13.01(c)(ii), any expenses saved as a consequence of Buy- er's failure to accept shall be deducted from the sum of amounts (A) and (B) above; and if such difference the net amount calculated pursuant to this Section 13.01(c)(ii) is negative, then neither Party Buyer shall not have any obligation to make any deficiency payment to Seller with respect to the otherDeficit Amount under Section 13.01(c). (iii) After Seller has determined the amounts for which Buyer is liable under Section 13.01(c)(ii), Seller shall promptly prepare and submit to Buyer an invoice for such amounts. Buyer shall pay the amounts reflected in such invoice within thirty (30) days after ▇▇▇▇▇ has received such invoice. If Buyer fails to pay such amounts within such thirty (30)-day period, Seller may exercise its rights under Sections 10.04 and 10.05 with respect to such amounts and may recover any remaining amounts from Buyer as provided by law. (d) Buyer and Seller shall be subject to commercially reasonable good good-faith obligation obligations to mitigate miti- gate any damages hereunderrecoverable under this Agreement. The remedies available to Buyer un- der Section 13.01(b) and the remedies available to Seller under Section 13.01(c) shall apply where an Event of Default (as defined in Section 13.02) has occurred (including, without limi- tation, a suspension under Section 6.06) and without regard to whether the Transaction in- volved has been terminated or expired; provided, however, that such remedies shall not ap- ply in the event of a termination as described in Section 13.04. 13.02 The occurrence of any of the following shall constitute an “"Event of Default”": (a) Failure by either A Party fails to pay any amounts duedue under this Agreement ("Payment Failure"), and the Payment Failure has continued for a period of fifteen (15) days after the non-defaulting Party has given written notice of the Payment Failure to the defaulting Party. (b) Either Party materially breaches any material contractual obligation under this Agreement. (c) Either Party (i) makes any general assignment or any general arrangement for the benefit of creditors, (ii) files a petition or otherwise commences, authorizes authorizes, or acquiesces in the commencement com- mencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors or has such a petition involuntarily filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing, (iii) otherwise becomes bankrupt or insolvent (however evidenced), or (iv) is unable to pay its debts as they fall due. 13.03 In addition to the non-defaulting Party’s 's remedies under this ArticleArticle 13, in the Event of Default with respect to a specific Transaction, the non-defaulting Party shall have the same rights with respect re- spect to such specific Transaction as it the non-defaulting Party has under this Agreement in addition addi- tion to the right to exercise all other rights and remedies available under applicable law. 13.04 A termination of one or more Transactions pursuant to Section 6.03, 9.03(f), 11.02, 11A.05, or 11A.06 shall not be construed as, or deemed to be, a breach or default under this Agreement or the Transactions(s) terminated. Upon any such termination, neither Party shall have any further obliga- tions or liability regarding the Transaction(s) terminated, except with respect to (i) shipments made prior to the effective date of such termination or (ii) other obligations or liability that may have ac- crued prior to the effective date of such termination.

Default Remedies and Termination. 13.01 12.01 The remedies set forth in this Section 13.01 12.01 shall cover the non-defaulting Party’s remedies for the defaulting Party’s failure to perform prior to any termination for default that may occur. a) As an alternative to the damages provision below, if the Parties mutually agree in writing, the non-performing Party may schedule deliveries or receipts, as the case may be, pursuant to such terms as the Parties agree in order to discharge some or all of the obligation to pay damages. In the absence of such agreement, the damages provision of this Article shall apply. b) Unless excused by Force Majeure, if Seller fails to deliver the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Seller shall pay to Buyer an amount for each ton of Coal of such deficiency equal to (i) the lowest reasonable market differential In cost between a reasonably priced supply of replacement Coal delivered to Buyer’s facilities and the adjusted base price of the Coal, on an equivalent per mmBtu SO2 adjusted basis at which Buyer is able, or (ii) at the time of Seller’s breach, would be able to purchase or otherwise receive comparable supplies of Coal of comparable quality minus the base price agreed to for the specific Transactionbasis; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. c) Unless excused by Force Majeure, if Buyer fails to accept delivery of the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Buyer shall pay to Seller an amount for each ton of Coal of such deficiency equal to (i) the base price agreed to for the specific Transaction minus the highest reasonable market price on an equivalent per mmBtu SO2 S02 adjusted basis at which Seller is able, or (ii) would be able, to sell or otherwise dispose of the Coal at the time of Buyer’s breach; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. d) Buyer and Seller shall be subject to commercially reasonable good faith obligation to mitigate any damages hereunder. 13.02 12.02 The occurrence of any of the following shall constitute an “Event of Default”:; a) Failure by either Party to pay any amounts due. b) Either Party materially breaches any contractual obligation under this Agreement. c) Either Party (i) makes any general assignment or any general arrangement for the benefit of creditors, (ii) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors or has such a petition involuntarily filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing, (iii) otherwise becomes bankrupt or insolvent (however evidenced), or (iv) is unable to pay its debts as they fall due. 13.03 12.03 In addition to the non-defaulting Party’s remedies under this Article, in the Event of Default with respect to a specific Transaction, the non-defaulting Party shall have the same rights with respect to such specific Transaction as it has under this Agreement in addition to the right to exercise all other rights and remedies available under applicable law.

Default Remedies and Termination. 13.01 The remedies set forth in this Section 13.01 shall cover 7.1 If the non-defaulting Party’s remedies for the defaulting Party’s failure Golf Club fails to perform prior to any termination for default that may occur. a) As an alternative to the damages provision below, if the Parties mutually agree in writing, the non-performing Party may schedule deliveries or receipts, as the case may be, pursuant to such terms as the Parties agree in order to discharge some or all of the obligation to pay damages. In the absence of such agreement, the damages provision of this Article shall apply. b) Unless excused by Force Majeure, if Seller fails to deliver the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Seller shall pay to Buyer an amount for each ton of Coal of such deficiency equal to (i) the lowest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Buyer is able, or (ii) at the time of Seller’s breach, would be able to purchase or otherwise receive comparable supplies of Coal of comparable quality minus the base price agreed to for the specific Transaction; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. c) Unless excused by Force Majeure, if Buyer fails to accept delivery of the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Buyer shall pay to Seller an amount for each ton of Coal of such deficiency equal to (i) the base price agreed to for the specific Transaction minus the highest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Seller is able, or (ii) would be able, to sell or otherwise dispose of the Coal at the time of Buyer’s breach; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. d) Buyer and Seller shall be subject to commercially reasonable good faith obligation to mitigate any damages hereunder. 13.02 The occurrence of any of its obligations under this Lease or ceases to operate in the following shall constitute Town of Wadena (an “"Event of Default”: a) Failure by either Party to pay any amounts due. b) Either Party materially breaches any contractual obligation under this Agreement. c) Either Party (i) makes any general assignment or any general arrangement for "), then the benefit Golf Club shall be in default hereunder unless it shall have cured such Event of creditors, (ii) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors or has such a petition involuntarily filed against it and such petition is not withdrawn or dismissed Default within thirty (30) days after receipt of written notice of such filingdefault (a "Notice of Default") from The Town; provided, however, that if the nature or extent of the obligation or obligations is non-monetary and is such that more than thirty (iii30) otherwise becomes bankrupt or insolvent (however evidenceddays are required for performance of such obligation(s), or then the Golf Club shall not be in default hereunder if it commences such performance within such thirty (iv30) is unable day period and thereafter pursues the same to pay its debts as they fall duecompletion with commercially reasonable diligence. 13.03 In addition to the non-defaulting Party’s remedies under this Article, in the 7.2 Whenever any Event of Default with respect to a specific Transactionshall have occurred and be continuing after all applicable cure periods have lapsed, the non-defaulting Party shall have Town may, at its option, take any one or more of the same rights with respect to such specific Transaction following actions, as it has in its sole discretion shall elect, to the extent permitted by and subject to compliance with Applicable Laws: (a) terminate this Lease and immediately re-enter upon and take possession of the Premises, with all Rent forthwith becoming due and payable to the Town; (b) cure such default, and any amount paid or any contractual liability incurred in so doing shall be deemed paid or incurred for the account of the Golf Club, such sums to be payable to include any other amount necessary to compensate the Town for all of the detriment proximately caused by the Golf Club’s failure to perform its obligations under this Agreement Lease, including reasonable attorneys' fees on a solicitor and client basis; and (c) exercise any other right or remedy that may now or hereafter be available to it under Applicable Laws or proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach hereof. 7.3 No remedy referred to in this section 7 is intended to be exclusive, but each shall be cumulative and in addition to the any other remedy referred to above or otherwise available at law or in equity. Efforts to mitigate damages caused by an Event of Default shall not waive any right to exercise all other rights and remedies available under applicable lawrecover damages hereunder.

Default Remedies and Termination. 13.01 8.1 If a Triggering Event, as defined in Section 8.2 below, occurs with respect to either party at any time during the term of the Agreement, the other party (the "Notifying Party") may (i) upon two (2) Business Days written notice to the first party (the "Affected Party"), which notice shall be given no later than sixty (60) days after the discovery of the occurrence of the Triggering Event, establish a date on which any or all Transactions pursuant to the Agreement will terminate ("Early Termination Date"), and (ii) withhold any payments due in respect of such Transactions; provided, upon the occurrence of any Triggering Event listed in item (iv) of Section 8.2 as it may apply to any party, the Agreement shall automatically terminate, without notice, as if an Early Termination Date had been immediately declared. If an Early Termination Date occurs, the Notifying Party shall in good faith calculate its damages, including its associated costs and attorneys' fees, resulting from the termination of the terminated Transactions (the "Termination Payment"). The remedies set forth in this Section 13.01 shall cover Termination Payment will be determined by: (i) comparing the non-defaulting Party’s remedies value of (a) the remaining term, quantities and prices and any loan payments under each such Transaction had it not been terminated to (b) the equivalent quantities and relevant market prices for the defaulting Party’s failure remaining term either quoted by a bona fide third party offer, or which are reasonably expected to perform prior to any termination be available in the market under a replacement contract for default that may occur. aeach such Transaction; and (ii) As an alternative to ascertaining the damages provision below, if associated costs and attorney's fees. To ascertain the Parties mutually agree in writing, market prices of a replacement contract the non-performing Notifying Party may schedule deliveries or receiptsconsider, as the case may beamong other valuations, pursuant to such terms as the Parties agree in order to discharge some including but not limited to, any or all of the obligation settlement prices of NYMEX (or applicable futures trading board) gas Futures Contracts, quotations from leading dealers in Gas swap contracts and other bona fide third party offers, all adjusted for the length of the remaining term and the basis differential. All terminated Transactions under any provision herein shall be netted against each other and upon the netting of all terminated Transactions, if the calculation of the Termination Payment does not result in damages to the Notifying Party, the Termination Payment shall be zero. The Notifying Party shall give the Affected Party written notice of the amount of the Termination Payment, inclusive of a statement showing its determination. The Affected Party shall pay damages. In the absence Termination Payment within ten (10) days of receipt of such agreementnotice. At the time for payment of any amount due under this provision, each party shall pay to the damages provision of this Article shall apply. b) Unless excused other party all additional amounts payable by Force Majeure, if Seller fails it pursuant to deliver the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Seller but all such amounts shall pay to Buyer an amount for each ton of Coal of such deficiency equal to (i) be netted and aggregated with any Termination Payment payable hereunder. If the lowest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Buyer is able, or (ii) at Affected Party disagrees with the time of Seller’s breach, would be able to purchase or otherwise receive comparable supplies of Coal of comparable quality minus the base price agreed to for the specific Transaction; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. c) Unless excused by Force Majeure, if Buyer fails to accept delivery calculation of the quantity of Coal in accordance with Termination Payment, the applicable Confirmation and this Agreement, Buyer shall pay to Seller an amount for each ton of Coal of such deficiency equal to (i) the base price agreed to for the specific Transaction minus the highest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Seller is able, or (ii) would be able, to sell or otherwise dispose of the Coal at the time of Buyer’s breach; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. d) Buyer and Seller issue shall be subject submitted to commercially reasonable good faith obligation arbitration pursuant to mitigate any damages hereunder. 13.02 The occurrence of any of the following shall constitute an “Event of Default”: a) Failure by either Party to pay any amounts due. b) Either Party materially breaches any contractual obligation under this Agreement. c) Either Party (i) makes any general assignment or any general arrangement for the benefit of creditors, (ii) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors or has such a petition involuntarily filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing, (iii) otherwise becomes bankrupt or insolvent (however evidenced), or (iv) is unable to pay its debts as they fall due. 13.03 In addition to the non-defaulting Party’s remedies under this Article, in the Event of Default with respect to a specific Transaction, the non-defaulting Party shall have the same rights with respect to such specific Transaction as it has under this Agreement in addition to and the right to exercise all other rights resulting Termination Payment shall be due and remedies available under applicable lawpayable within three (3) Business Days after the award.

Default Remedies and Termination. 13.01 The remedies set forth in this Section 13.01 shall cover the non-defaulting Party’s remedies for the defaulting Party’s failure to perform prior to any termination for default that may occur. a) As an alternative to the damages provision below, if the Parties mutually agree in writing, the non-performing Party may schedule deliveries or receipts, as the case may be, pursuant to such terms as the Parties agree in order to discharge some or all of the obligation to pay damages. In the absence of such agreement, the damages provision of this Article shall apply. b) Unless excused by Force Majeure, if Seller fails to deliver the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Seller shall pay to Buyer an amount for each ton of Coal of such deficiency equal to (i) the lowest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Buyer is able, or (ii) at the time of Seller’s breach, would be able to purchase or otherwise receive comparable supplies of Coal of comparable quality minus the base price agreed to for the specific Transaction; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. c) Unless excused by Force Majeure, if Buyer fails to accept delivery of the quantity of Coal in accordance with the applicable Confirmation and this Agreement, Buyer shall pay to Seller an amount for each ton of Coal of such deficiency equal to (i) the base price agreed to for the specific Transaction minus (ii) the highest reasonable market price on an equivalent per mmBtu SO2 adjusted basis at which Seller is able, or (ii) would be able, to sell or otherwise dispose of the Coal at the time of Buyer’s breach; except that if such difference is negative, then neither Party shall have any obligation to make any deficiency payment to the other. d) Buyer and Seller shall be subject to commercially reasonable good faith obligation to mitigate any damages hereunder. 13.02 The occurrence of any of the following shall constitute an “Event of Default”: a) Failure by either Party to pay any amounts due. b) Either Party materially breaches any contractual obligation under this Agreement. c) Either Party (i) makes any general assignment or any general arrangement for the benefit of creditors, (ii) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy or similar law for the protection of creditors or has such a petition involuntarily filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing, (iii) otherwise becomes bankrupt or insolvent (however evidenced), or (iv) is unable to pay its debts as they fall due. 13.03 In addition to the non-defaulting Party’s remedies under this Article, in the Event of Default with respect to a specific Transaction, the non-defaulting Party shall have the same rights with respect to such specific Transaction as it has they have under this Agreement in addition to the right to exercise all other rights and remedies available under applicable law.