Remedies Upon Owner Default. Upon the occurrence of an Owner Default and at any time thereafter so long as the same is continuing, Distribution Company shall be entitled, to the extent permitted by Applicable Law, to exercise one or more of the following remedies, as Distribution Company shall elect: (a) In the case of an Owner Default, and subject to Section 5.6 hereof, Distribution Company may recover any accrued but unpaid amounts under Section 4.4.1 and Section 4.4.2 and the Owner Termination Payment and (i) in the case of an Owner Default under any clause of Section 14.2 other than clause (c), Distribution Company may terminate this Agreement by written notice to Owner, or (ii) in the case of an Owner Default under clause (c) of Section 14.2, this Agreement shall automatically be terminated; provided, however, in the event that HQUS exercises its right under the HQUS TSA to purchase or assume control of the NECEC Transmission Line and assume Owner’s obligations under this Agreement prior to the effective date of such termination, no termination of this Agreement shall occur under this Section 14.4(a). In the event that HQUS timely exercises such rights, (x) upon receipt of HQUS’s notice that it is exercising such rights, Owner shall promptly notify Distribution Company thereof and (y) upon the effectiveness of HQUS’ purchase or assumption of control of the NECEC Transmission Line and assumption of Owner’s obligations under this Agreement, (A) Distribution Company and HQUS shall enter into such amendments to this Agreement as are reasonably necessary in order to give effect to such rights of HQUS and assumptions of obligations by HQUS that are consistent with the terms and conditions of this Agreement and are subject to applicable regulatory approvals and (B) thereafter HQUS shall perform and Distribution Company shall continue to perform their respective obligations under this Agreement. (b) Subject to the limitations provided in Section 4.4.1(d), Section 4.4.2(c), Article XVIII or this Section 14.4, as applicable, Distribution Company may recover from Owner any accrued but unpaid amounts under Section 4.4.1 and Section 4.4.2 (as applicable) and any costs or expenses (including reasonable attorneys’ fees) reasonably incurred by Distribution Company to recover any amounts owed to Distribution Company by Owner under this Agreement. (c) Distribution Company may exercise one or more of the following rights and remedies: (i) all rights and remedies available to a secured party under applicable Law with respect to Credit Support (including, for avoidance of doubt, the Owner Security) held by Distribution Company, and (ii) the right to liquidate any and all Credit Support held by Distribution Company and to apply the proceeds of such liquidation to any amounts payable to Distribution Company with respect to Owner’s obligations hereunder in such order as Distribution Company may elect. Distribution Company may draw on the undrawn portion of any Letter of Credit provided as Credit Support up to the amount of Owner’s outstanding obligations hereunder. Owner shall remain liable for amounts due and owed to Distribution Company that remain unpaid after the application of Credit Support. (d) Pursuant to Section 13.2, to the extent there is a Dispute over the amount of the damages suffered by Distribution Company as a result of an Owner Default, Distribution Company may deduct and setoff payment of such amount against any Transmission Service Payment upon the resolution of that Dispute. (e) Distribution Company may exercise any and all other rights and remedies that may be available to Distribution Company at law or in equity for non-monetary relief, unless expressly prohibited or otherwise restricted by Article XVIII or any other provision of this Agreement. Notwithstanding the foregoing sentence, Distribution Company shall have no right to (i) terminate this Agreement based upon an Owner Default, except as provided in clause (a) above, or (ii) any reduction of or offset against payments under this Agreement based upon an Owner Default, except as contemplated by Section 8.1, Section 13.5 and Section 14.4(d), as applicable.
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Sources: Transmission Service Agreement (Avangrid, Inc.), Transmission Service Agreement (Avangrid, Inc.)
Remedies Upon Owner Default. Upon the occurrence of an Owner Default and at any time thereafter so long as the same is continuing, Distribution Company shall be entitled, to the extent permitted by Applicable Law, to exercise one or more of the following remedies, as Distribution Company shall elect:
(a) In the case of an Owner Default, and subject to Section 5.6 hereof, Distribution Company may recover any accrued but unpaid amounts under Section 4.4.1 and Section 4.4.2 and the Owner Termination Payment and (i) in the case of an Owner Default under any clause of Section 14.2 other than clause (c), Distribution Company may terminate this Agreement by written notice to Owner, or (ii) in the case of an Owner Default under clause (c) of Section 14.2, this Agreement shall automatically be terminated; provided, however, in the event that HQUS exercises its right under the HQUS TSA to purchase or assume control of the NECEC Transmission Line and assume Owner’s obligations under this Agreement prior to the effective date of such termination, no termination of this Agreement shall occur under this Section 14.4(a). In the event that HQUS timely exercises such rights, (x) upon receipt of HQUS’s notice that it is exercising such rights, Owner shall promptly notify Distribution Company thereof and (y) upon the effectiveness of HQUS’ purchase or assumption of control of the NECEC Transmission Line and assumption of Owner’s obligations under this Agreement, (A) Distribution Company and HQUS shall enter into such amendments to this Agreement as are reasonably necessary in order to give effect to such rights of HQUS and assumptions of obligations by HQUS that are consistent with the terms and conditions of this Agreement and are subject to applicable regulatory approvals and (B) thereafter HQUS shall perform and Distribution Company shall continue to perform their respective obligations under this Agreement.
(b) Subject to the limitations provided in Section 4.4.1(d), Section 4.4.2(c), Article XVIII or this Section 14.4, as applicable, Distribution Company may recover from Owner any accrued but unpaid amounts under Section 4.4.1 and Section 4.4.2 (as applicable) and any costs or expenses (including reasonable attorneys’ fees) reasonably incurred by Distribution Company to recover any amounts owed to Distribution Company by Owner under this Agreement.
(c) Distribution Company may exercise one or more of the following rights and remedies: (i) all rights and remedies available to a secured party under applicable Law with respect to Credit Support (including, for avoidance of doubt, the Owner Security) held by Distribution Company, and (ii) the right to liquidate any and all Credit Support held by Distribution Company and to apply the proceeds of such liquidation to any amounts payable to Distribution Company with respect to Owner’s obligations hereunder in such order as Distribution Company may elect. Distribution Company may draw on the undrawn portion of any Letter of Credit provided as Credit Support up to the amount of Owner’s outstanding obligations hereunder. Owner shall remain liable for amounts due and owed to Distribution Company that remain unpaid after the application of Credit Support.
(d) Pursuant to Section 13.2, to the extent there is a Dispute over the amount of the damages suffered by Distribution Company as a result of an Owner Default, Distribution Company may deduct and setoff payment of such amount against any Transmission Service Payment upon the resolution of that Dispute.
(e) Distribution Company may exercise any and all other rights and remedies that may be available to Distribution Company at law or in equity for non-monetary relief, unless expressly prohibited or otherwise restricted by Article XVIII or any other provision of this Agreement. Notwithstanding the foregoing sentence, Distribution Company shall have no right to (i) terminate this Agreement based upon an Owner Default, except as provided in clause (a) above, or (ii) any reduction of or offset against payments under this Agreement based upon an Owner Default, except as contemplated by Section 8.1, Section 13.5 and Section 14.4(d), as applicable.. Abandoned Plant Recovery. Owner may request from FERC recovery of abandoned plant costs from Distribution Company in the event of the cancellation, termination and abandonment of the NECEC Transmission Line but (a) only if (i) due to the termination of this Agreement by either Party prior to the Commercial Operation Date, or (ii) due to the termination of this Agreement by Distribution Company following the Commercial Operation Date, or (iii) this Agreement is rendered null and void pursuant to Section 19.2(c), and (b) only if such cancellation, termination, and abandonment results from changes after the Effective Date in Massachusetts laws or regulations (including changes in the manner in which the law is applied by those acting under the color of Massachusetts laws or regulations) or changes in MDPU orders that invalidate this Agreement or the Distribution Company’s obligation to pay for Firm Transmission Service or to pay the Distribution Company Termination Payment under this Agreement. In no event will Owner be entitled to recover abandoned plant costs under any other circumstances or in the event that the cancellation, termination or abandonment was caused directly or indirectly by some act or failure to act on the part of Owner or HQUS or their respective affiliates, agents or contractors, including, without limitation, an Owner Default or a Default (as defined in the PPA) by HQUS under the PPA, and Owner agrees not to seek from FERC or any other agency or authority any treatment of abandonment costs inconsistent with this provision, in accordance with Section
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