Laserfiche WebLink
DocuSign Envelope ID: C8B0008C-DA60-4F80-8609-96FDBA9F6DCB <br />The parties have selected either "Early Termination Damages Apply" or "Early Termination Damages Do Not Apply" as <br />indicated on the Base Contract. <br />Early Termination Damages Apply: <br />10.3.1. As of the Early Termination Date, the Non -Defaulting Party shall determine, in good faith and in a commercially <br />reasonable manner, (i) the amount owed (whether or not then due) by each party with respect to all Gas delivered and received <br />between the parties under Terminated Transactions and Excluded Transactions on and before the Early Termination Date and all <br />other applicable charges relating to such deliveries and receipts (including without limitation any amounts owed under Section 3.2), <br />for which payment has not yet been made by the party that owes such payment under this Contract and (ii) the Market Value, as <br />defined below, of each Terminated Transaction. The Non -Defaulting Party shall (x) liquidate and accelerate each Terminated <br />Transaction at its Market Value, so that each amount equal to the difference between such Market Value and the Contract Value, as <br />defined below, of such Terminated Transaction(s) shall be due to the Buyer under the Terminated Transaction(s) if such Market Value <br />exceeds the Contract Value and to the Seller if the opposite is the case; and (y) where appropriate, discount each amount then due <br />under clause (x) above to present value in a commercially reasonable manner as of the Early Termination Date (to take account of the <br />period between the date of liquidation and the date on which such amount would have otherwise been due pursuant to the relevant <br />Terminated Transactions). <br />For purposes of this Section 10.3.1, "Contract Value" means the amount of Gas remaining to be delivered or purchased under a <br />transaction multiplied by the Contract Price, and "Market Value" means the amount of Gas remaining to be delivered or purchased <br />under a transaction multiplied by the market price for a similar transaction at the Delivery Point determined by the Non -Defaulting Party <br />in a commercially reasonable manner. To ascertain the Market Value, the Non -Defaulting Party may consider, among other valuations, <br />any or all of the settlement prices of NYMEX Gas futures contracts, quotations from leading dealers in energy swap contracts or <br />physical gas trading markets, similar sales or purchases and any other bona fide third -party offers, all adjusted for the length of the <br />term and differences in transportation costs. A party shall not be required to enter into a replacement transaction(s) in order to <br />determine the Market Value. Any extension(s) of the term of a transaction to which parties are not bound as of the Early Termination <br />Date (including but not limited to "evergreen provisions") shall not be considered in determining Contract Values and Market Values. <br />For the avoidance of doubt, any option pursuant to which one party has the right to extend the term of a transaction shall be considered <br />in determining Contract Values and Market Values. The rate of interest used in calculating net present value shall be determined by <br />the Non -Defaulting Party in a commercially reasonable manner. <br />Early Termination Damages Do Not Apply: <br />10.3.1. As of the Early Termination Date, the Non -Defaulting Party shall determine, in good faith and in a commercially <br />reasonable manner, the amount owed (whether or not then due) by each party with respect to all Gas delivered and received between <br />the parties under Terminated Transactions and Excluded Transactions on and before the Early Termination Date and all other <br />applicable charges relating to such deliveries and receipts (including without limitation any amounts owed under Section 3.2), for which <br />payment has not yet been made by the party that owes such payment under this Contract. <br />The parties have selected either "Other Agreement Setoffs Apply" or "Other Agreement Setoffs Do Not Apply" as indicated <br />on the Base Contract. <br />Other Agreement Setoffs Apply. <br />10.3.2. The Non -Defaulting Party shall net or aggregate, as appropriate, any and all amounts owing between the parties <br />under Section 10.3.1, so that all such amounts are netted or aggregated to a single liquidated amount payable by one party to the <br />other (the "Net Settlement Amount'). At its sole option and without prior Notice to the Defaulting Party, the Non -Defaulting Party may <br />setoff (i) any Net Settlement Amount owed to the Non -Defaulting Party against any margin or other collateral held by it in connection <br />with any Credit Support Obligation relating to the Contract; or (ii) any Net Settlement Amount payable to the Defaulting Party against <br />any amount(s) payable by the Defaulting Party to the Non -Defaulting Party under any other agreement or arrangement between the <br />parties. <br />Other Agreement Setoffs Do Not Apply: <br />10.3.2. The Non -Defaulting Party shall net or aggregate, as appropriate, any and all amounts owing between the parties under <br />Section 10.3.1, so that all such amounts are netted or aggregated to a single liquidated amount payable by one party to the other (the <br />"Net Settlement Amount'). At its sole option and without prior Notice to the Defaulting Party, the Non -Defaulting Party may setoff any <br />Net Settlement Amount owed to the Non -Defaulting Party against any margin or other collateral held by it in connection with any Credit <br />Support Obligation relating to the Contract. <br />10.3.3. If any obligation that is to be included in any netting, aggregation or setoff pursuant to Section 10.3.2 is unascertained, <br />the Non -Defaulting Party may in good faith estimate that obligation and net, aggregate or setoff, as applicable, in respect of the estimate, <br />subject to the Non -Defaulting Party accounting to the Defaulting Party when the obligation is ascertained. Any amount not then due <br />which is included in any netting, aggregation or setoff pursuant to Section 10.3.2 shall be discounted to net present value in a commercially <br />reasonable manner determined by the Non -Defaulting Party. <br />10.4. As soon as practicable after a liquidation, Notice shall be given by the Non -Defaulting Party to the Defaulting Party of the Net <br />Settlement Amount, and whether the Net Settlement Amount is due to or due from the Non -Defaulting Party. The Notice shall include a <br />written statement explaining in reasonable detail the calculation of such amount, provided that failure to give such Notice shall not affect <br />the validity or enforceability of the liquidation or give rise to any claim by the Defaulting Party against the Non -Defaulting Party. The Net <br />Settlement Amount shall be paid by the close of business on the second Business Day following such Notice, which date shall not be <br />earlier than the Early Termination Date. Interest on any unpaid portion of the Net Settlement Amount shall accrue from the date due until the <br />Copyright © 2002 North American Energy Standards Board, Inc. NAESB Standard 6.3.1 <br />All Rights Reserved Page 7 of 10 April 19, 2002 <br />