Common use of Cure Period and Delay Damages Clause in Contracts

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date; provided, however, that the Commercial Operation Date shall not occur more than one hundred eighty (180) days prior to the Guaranteed Commercial Operation Date. If (I) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions or Force Majeure after Construction Start Date or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions, then Buyer shall be entitled to draw upon the Project Development Security for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Project Cure Period”); or (2) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Construction Cure Period”). The Parties agree that Buyer’s receipt of Daily Delay Damages shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 5.1 and (y) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.2.

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date; provided, however, that the Commercial Operation Date shall not occur more than one hundred eighty (180) days prior to the Guaranteed Commercial Operation Date. If (I) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions or Force Majeure after Construction Start Date or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions, then Buyer shall be entitled to draw upon the Project Development Security for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Project Cure Period”); or (2) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Construction Cure Period”). The Parties agree that Buyer’s receipt of Daily Delay Damages shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 5.1 and (y) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.2. Each Party agrees and acknowledges that (I) the damages that Buyer would incur due to Seller’s delay in achieving either of the Guaranteed Project Milestones would be difficult or impossible to predict with certainty, and (II) the Daily Delay Damages are an appropriate approximation of such damages. Seller shall be entitled to the return of all Daily Delay Damages collected by Buyer as a result of Seller’s failure to meet the Guaranteed Construction Start Date only if Seller meets the Guaranteed Commercial Operation Date (as may be extended by Permitted Extensions) as provided further in Section 8.4(c) of this Agreement. For sake of certainty, Buyer shall retain all Daily Delay Damages drawn (or which Buyer is entitled to draw) as a result of Seller’s failure to meet the Guaranteed Commercial Operation Date and the Guaranteed Construction Start Date (both as may be extended by Permitted Extensions), if Seller fails to meet the Guaranteed Commercial Operation Date (as may be extended by Permitted Extensions).

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date; provided, however, that the Commercial Operation Date shall not occur more than one hundred eighty (180) days prior to the Guaranteed Commercial Operation Date. If (I) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions or Force Majeure after Construction Start Date or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions, then Buyer shall be entitled to draw upon the Project Development Security for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Project Cure Period”); or (2) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Construction Cure Period”). The Parties agree that Buyer’s receipt of Daily Delay Damages shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 5.1 and (y) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.2.

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date; provided, however, that the Commercial Operation Date shall not occur more than one hundred eighty (180) days prior to the Guaranteed Commercial Operation Date. If (I) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions or Force Majeure after Construction Start Date or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions, then Buyer shall be entitled to draw upon the Project Development Security for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Project Cure Period”); or (2) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Construction Cure Period”). The Parties agree that BuyerXxxxx’s receipt of Daily Delay Damages shall (x) not be construed as BuyerXxxxx’s declaration that an Event of Default has occurred under any provision of Section 5.1 and (y) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.2.

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Construction Start Date by the Guaranteed Construction Start Date, the Partial Commercial Energy Delivery Date by the Guaranteed Partial Commercial Operation Date; provided, however, that and the Full Commercial Operation Energy Delivery Date shall not occur more than one hundred eighty (180) days prior to by the Guaranteed Full Commercial Operation Date. If (I) the Partial Commercial Operation Energy Delivery Date occurs after the Guaranteed Partial Commercial Operation Date, the Full Commercial Energy Delivery Date occurs after the Guaranteed Full Commercial Operation Date after giving effect to Permitted Extensions or Force Majeure after Construction Start Date or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect Date, then, subject to Permitted ExtensionsSection 3.9(c)(iv)(D) below, then Buyer shall be entitled to draw upon the Post Effective Date Project Development Security or Initial Energy Delivery Security, as applicable, for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1I) the Partial Commercial Operation Energy Delivery Date occurs after the Guaranteed Partial Commercial Operation Date after giving effect to Permitted Extensions for up to a total of sixty one hundred twenty (60120) days (“Partial Project Cure Period”); (II) the Full Commercial Energy Delivery Date occurs after the Guaranteed Full Commercial Operation Date for up to a total of one hundred twenty (120) days (“Project Cure Period”); or (2III) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions for up to a total of sixty one hundred twenty (60120) days (“Construction Cure Period”). The Parties agree ; provided that Buyer’s receipt the total amount of Daily Delay Damages days taken in the aggregate for Partial Project Cure Period, Project Cure Period or Construction Cure Period shall not exceed a total of one hundred twenty (x120) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 5.1 and (y) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.2days.

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date; provided, however, that the Commercial Operation Date shall not occur more than one three hundred eighty sixty-five (180365) days prior to the Guaranteed Commercial Operation Date. If (I) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions or Force Majeure after Construction Start Date or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions, then Buyer shall be entitled to draw upon the Project Development Security for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Project Cure Period”); or (2) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Construction Cure Period”). The Parties agree that Buyer’s receipt of Daily Delay Damages shall (w) extend the Guaranteed Commercial Operation Date on a day-for-day basis for each day of Daily Delay Damages paid during the Construction Cure Period, (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 5.1 5.1, (y) provide Buyer’s sole and exclusive remedy only for Seller’s failure to meet the applicable Guaranteed Project Milestone during the Project Cure Period and the Construction Cure Period, respectively, and (yz) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.2.

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date; provided, however, that the Commercial Operation Date shall not occur more than one hundred eighty (180) days prior to the Guaranteed Commercial Operation Date. If (I) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date (after giving effect to Permitted Extensions or Extensions, Force Majeure or Transmission Delay occurring after the Construction Start Date and any extension pursuant to Section 3.1(g)(iii)(A)(III)) or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date (after giving effect to Permitted Extensions), then Buyer shall be entitled to draw upon the Project Development Security for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date (after giving effect to Permitted Extensions Extensions, Force Majeure or Transmission Delay occurring after the Construction Start Date and any extension pursuant to Section 3.1(g)(iii)(A)(III)) for up to a total of sixty (60) days (“Project Cure Period”); or (2) the Construction Start Date occurs after the Guaranteed Construction Start Date (after giving effect to Permitted Extensions Extensions) for up to a total of sixty (60) days (“Construction Cure Period”). The Parties agree that Buyer’s receipt of Daily Delay Damages shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 5.1 and (y) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.25.2 or Force Majeure Payment upon exercise of Buyer’s termination right pursuant to Section 11.1(a)(ii).

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date; provided, however, that the Commercial Operation Date shall not occur more than one hundred eighty (180) days prior to the Guaranteed Commercial Operation Date. If (I) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions or Force Majeure after Construction Start Date or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions, then Buyer shall be entitled to draw upon the Project Development Security for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions for up to a total of sixty one hundred and twenty (60120) days less the number of days, if any, used for a Construction Cure Period (“Project Cure Period”); or (2) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Construction Cure Period”). The Parties agree that Buyer’s receipt of Daily Delay Damages shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section 5.1 5.1, (y) be Buyer’s sole and exclusive remedy for failure to meet a related Guaranteed Project Milestone during the Project Cure Period and Construction Cure Period, respectively and (yz) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.2.

Cure Period and Delay Damages. (A) Seller shall cause the Project to achieve the Commercial Operation Date by the Guaranteed Commercial Operation Date; provided, however, that the Commercial Operation Date shall not occur more than one hundred eighty (180) days prior to the Guaranteed Commercial Operation Date. If (I) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions or Force Majeure after Construction Start Date or (II) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions, then Buyer shall be entitled to draw upon the Project Development Security for liquidated damages equal to Daily Delay Damages for each day or portion of a day that (1) the Commercial Operation Date occurs after the Guaranteed Commercial Operation Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Project Cure Period”); or (2) the Construction Start Date occurs after the Guaranteed Construction Start Date after giving effect to Permitted Extensions for up to a total of sixty (60) days (“Construction Cure Period”). The Parties agree that BuyerXxxxx’s receipt of Daily Delay Damages shall (x) not be construed as BuyerXxxxx’s declaration that an Event of Default has occurred under any provision of Section 5.1 and (y) not limit Buyer’s right to receive a Termination Payment or Damage Payment, as applicable, upon exercise of Buyer’s default right pursuant to Section 5.2.