Off-island ppa
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- Early Termination Date and Calculation of Settlement Amounts as set forth in (a) through (d) below.
- No Consequential Damages .
Remedies. If an Event of Default has occurred, which is not cured as provided herein, then the Non-Defaulting Party may, at its discretion, take any or all of the following actions: Proceed by appropriate proceedings, judicial, administrative or otherwise at law, in equity or otherwise, to protect and enforce its rights, to recover any damages to which it may be entitled hereunder, and to enforce performance by the Defaulting Party, including specific performance of the Defaulting Party’s obligations hereunder;Early Termination Date and Calculation of Settlement Amounts as set forth in (a) through (d) below.(a) Declaration of an Early Termination Date and Calculation of Settlement Amounts. If an Event of Default shall have occurred and be continuing, the Non-Defaulting Party shall have the right (x) to designate a day, no earlier than the day such notice is effective and no later than ninety (90) days after such notice is effective, as an early termination date (“Early Termination Date”) to accelerate all amounts owing between the Parties and to liquidate and terminate this Agreement and liquidate all amounts due and owing between the Parties, (y) withhold any payments due to the Defaulting Party under this Agreement, and (z) suspend performance. The Non-Defaulting Party shall calculate, in a commercially reasonable manner, a Settlement Amount for this Agreement as of the Early Termination Date (or, to the extent that in the reasonable opinion of the Non-Defaulting Party certain of matters under the Agreement are commercially impracticable to liquidate and terminate or may not be liquidated and terminated under applicable law on the Early Termination Date, as soon thereafter as is reasonably practicable). (b) 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. (c) Notice of Payment of Termination Payment. If the Non-Defaulting Party exercises its termination right set forth in Section 12.5(ii)(a), the Non-Defaulting Party shall provide prompt written notice to the Defaulting Party of the amount of the Termination Payment. The notice shall include a written statement explaining in reasonable detail the calculation of such amount. The Termination Payment shall be made by the Party that owes it within five (5) Business Days after such notice is effective. Notwithstanding any provision to the contrary contained in this Agreement, the Non-Defaulting Party shall not be required to pay to the Defaulting Party any amount under Article 5 until the Non-Defaulting Party receives confirmation satisfactory to it in its reasonable discretion (which may include an opinion of its counsel) that all other obligations of any kind whatsoever of the Defaulting Party to make any payments to the Non-Defaulting Party under this Agreement or otherwise which are due and payable as of the Early Termination Date have been fully and finally performed. (d) Disputes With Respect to Termination Payment. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within five (5) Business Days of receipt of Non-Defaulting Party’s calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute; provided, however, that if the Termination Payment is due from the Defaulting Party, the Defaulting Party shall first transfer additional amounts for the Seller Security to the Non-Defaulting Party in an amount equal to the amount calculated by the Non-Defaulting Party to be the Termination Payment. Buyer shall also be entitled to draw upon any Seller Security established pursuant to Section 7.1 to satisfy in whole or in part any Seller’s obligations under this Agreement.No Consequential Damages.Notwithstanding any other provision of this Agreement (except to the extent indemnification payments are made pursuant to Section 18.17 as a result of a third party being awarded special, indirect, incidental, punitive or consequential damages), neither Buyer nor Seller (nor any of their Affiliates, trustees, agents, employees, officers, directors, successors and assigns) shall be liable for special, indirect, incidental, punitive or consequential damages under, arising out of, due to, or in connection with its performance or non–performance of this Agreement or any of its obligations herein, whether based on contract, tort (including, without limitation, negligence), strict liability, warranty, indemnity or otherwise. 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