Common use of Disputes With Respect to Default Damages or Termination Payment Clause in Contracts

Disputes With Respect to Default Damages or Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Default Damages or Termination Payment, in whole or in part, the Defaulting Party must, within three (3) Business Days of receipt of the Non-Defaulting Party’s calculation of the Default Damages or Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Any dispute under this Section 5.3(e) shall be subject to the dispute resolution procedures in Article 10; provided, however, that if the Default Damages or Termination Payment is due from the Defaulting Party, the Defaulting Party must first provide commercially reasonable financial assurances to the Non-Defaulting Party in an amount equal to the Default Damages or Termination Payment, as the case may be. Any payment obligations of the Non-Defaulting Party to the Defaulting Party pursuant to this Agreement or any Other ▇▇▇▇ Supply Agreement will be set off: (i) first, to satisfy any payment obligations of the Defaulting Party to the Non-Defaulting Party pursuant to this Agreement or any Other ▇▇▇▇ Supply Agreement that are unsecured and not subject to any Guaranty; (ii) second, to satisfy any payment obligations of the Defaulting Party to the Non-Defaulting Party pursuant to this Agreement or any Other ▇▇▇▇ Supply Agreement that are unsecured, but which are guaranteed by a Guaranty; and (iii) third, to satisfy any remaining payment obligations of the Defaulting Party to the Non-Defaulting Party pursuant to this Agreement or any Other ▇▇▇▇ Supply Agreement.

Disputes With Respect to Default Damages or Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Default Damages or Termination Payment, in whole or in part, the Defaulting Party must, within three (3) Business Days of receipt of the Non-Defaulting Party’s calculation of the Default Damages or Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute. Any dispute under this Section 5.3(e) shall be subject to the dispute resolution procedures in Article 10; provided, however, that if the Default Damages or Termination Payment is due from the Defaulting Party, the Defaulting Party must first provide commercially reasonable financial assurances to the Non-Non- Defaulting Party in an amount equal to the Default Damages or Termination Payment, as the case may be. Setoff of Payment Obligations of the Non-Defaulting Party Any payment obligations of the Non-Defaulting Party to the Defaulting Party pursuant to this Agreement or any Other ▇▇▇▇ Supply Agreement will be set off: (i) first, to satisfy any payment obligations of the Defaulting Party to the Non-Defaulting Party pursuant to this Agreement or any Other ▇▇▇▇ Supply Agreement that are unsecured and not subject to any Guaranty; (ii) second, to satisfy any payment obligations of the Defaulting Party to the Non-Defaulting Party pursuant to this Agreement or any Other ▇▇▇▇ Supply Agreement that are unsecured, but which are guaranteed by a Guaranty; and (iii) third, to satisfy any remaining payment obligations of the Defaulting Party to the Non-Non- Defaulting Party pursuant to this Agreement or any Other ▇▇▇▇ Supply Agreement. Preservation of Rights of Non-Defaulting Party The rights of the Non-Defaulting Party under this Agreement, including Sections 5.2, 5.3 and 5.4, will be supplemental to, and not in lieu of, any right of recoupment, lien, or set-off afforded by applicable law, and all such rights are expressly preserved for the benefit of the Non-Defaulting Party.