Failure to Timely Achieve Commercial Operation. (i) If Seller fails to cause the Commercial Operation Date to occur on or before the Scheduled Commercial Operation Date, Seller shall pay to Buyer delay liquidated damages (“Delay Damages”) for each day of delay occurring from and after the Scheduled Commercial Operation Date through the earlier to occur of (x) the date the Commercial Operation Date occurs, and (y) the Guaranteed Commercial Operation Date, at a rate equal to $150 per MW of the Storage Contract Capacity per day beginning on the Scheduled Commercial Operation Date through the thirtieth (30th) day after the Scheduled Commercial Operation Date, $250 per MW of the Storage Contract Capacity per day beginning on the thirty first (31st) day through the sixtieth (60th) day after Scheduled Commercial Operation Date, and $350 per MW of the Storage Contract Capacity per day beginning on the sixty first (61st) day after Scheduled Commercial Operation Date until the first to occur of (i) Seller’s achievement of the Commercial Operation Date; and (ii) the Guaranteed Commercial Operation Date. (ii) If Seller fails to cause the Commercial Operation Date to occur on or before the Guaranteed Commercial Operation Date, then Buyer will thereafter have the right, until the Commercial Operation Date has occurred, to terminate this Agreement by providing written notice of termination to Seller. The Parties agree that actual damages that would be suffered by Buyer as a result of such termination are difficult to determine, and that Buyer may therefore draw on and retain all Credit Support (including interests thereon, if any) provided by Seller as liquidated damages, and not a penalty, representing a reasonable pre-estimate of the damages that would be incurred by Buyer as a result such failure. Payment of such liquidated damages shall be Seller’s sole and exclusive liability, and Buyer’s sole and exclusive remedy, in connection with the termination of this Agreement by Buyer due to Seller’s failure to cause the Commercial Operation Date to occur on or before the Guaranteed Commercial Operation Date. Such liquidated damages payment shall constitute a Termination Payment in accordance with Section 9.2(b).
Appears in 5 contracts
Samples: Storage Capacity Agreement, Storage Capacity Agreement, Storage Capacity Agreement
Failure to Timely Achieve Commercial Operation.
(i) If Seller fails to cause the Commercial Operation Date to occur on or before the Scheduled Commercial Operation Date, Seller shall pay to Buyer delay liquidated damages (“Delay Damages”) for each day of delay occurring from and after the Scheduled Commercial Operation Date through the earlier to occur of (x) the date the Commercial Operation Date occurs, and (y) the Guaranteed Commercial Operation Date, at a rate equal to $150 per MW of the Storage Contract Capacity per day beginning on the Scheduled Commercial Operation Date through the thirtieth (30th) day after the Scheduled Commercial Operation Date, $250 per MW of the Storage Contract Capacity per day beginning on the thirty first (31st) day through the sixtieth (60th) day after Scheduled Commercial Operation Date, and $350 per MW of the Storage Contract Capacity per day beginning on the sixty first (61st) day after Scheduled Commercial Operation Date until the first to occur of (i) Seller’s achievement of the Commercial Operation Date; and (ii) the Guaranteed Commercial Operation Date.
(ii) If Seller fails to cause the Commercial Operation Date to occur on or before the Guaranteed Commercial Operation Date, then Buyer will thereafter have the right, until the Commercial Operation Date has occurred, to terminate this Agreement by providing written notice of termination to Seller. The Parties agree that actual damages that would be suffered by Buyer as a result of such termination are difficult to determine, and that Buyer may therefore draw on and retain all Credit Support (including interests thereon, if any) provided by Seller as liquidated damages, and not a penalty, representing a reasonable pre-estimate of the damages that would be incurred by Buyer as a result such failure. Payment of such liquidated damages shall be Seller’s sole and exclusive liability, and Buyer’s sole and exclusive remedy, in connection with the termination of this Agreement by Buyer due to Seller’s failure to cause the Commercial Operation Date to occur on or before the Guaranteed Commercial Operation Date. Such liquidated damages payment shall constitute a Termination Payment in accordance with Section 9.2(b).9.2(b).
Appears in 2 contracts
Samples: Storage Capacity Agreement, Storage Capacity Agreement
