Common use of Owner Delay Clause in Contracts

Owner Delay. (a) If, as a result of an Owner Default, any conditions set forth in Section 4.2 shall not have been satisfied or duly waived within one hundred eighty (180) days following the later to occur of (i) the Target Date and (ii) the date upon which TransÉnergie has certified to Owner in good faith that the Québec Line is ready for Commissioning (such delay, an "Owner Delay," and such one hundred eightieth (180th) day, "Owner’s Initial Deadline"), then, for purposes of cost recovery under Section 8.1.2, AFUDC shall not be accrued on the Construction Costs and Carrying Charges shall not be accrued on the Pre-COD Expenses, in each case, from and after Owner’s Initial Deadline. (b) If an Owner Delay continues beyond the second (2nd) anniversary of Owner’s Initial Deadline ("Owner’s Final Deadline"), then the following provisions shall also apply: (i) Purchaser shall have the right to recover from Owner, and Owner shall pay or reimburse to Purchaser, for each month (or part thereof) following Owner’s Final Deadline during which the Owner Delay is continuing, an amount equal to all penalties, damages, fees or other charges in respect of the Québec Line that are owed and paid by HQP to TransÉnergie, if any, under the TransÉnergie OATT with respect to such month (or part thereof); provided, however, that Owner’s maximum liability to Purchaser under this clause (b)(i) shall not exceed, in the aggregate, an amount equivalent to the sum of the transmission service payments in respect of the Québec Line that would have been owed by HQP to TransÉnergie under the TransÉnergie OATT (the "OATT Payments") (exclusive of any penalties, damages, fees or other charges) if the Québec Line was operating at its full expected capacity following its commercial operation for the period commencing on Owner’s Final Deadline and ending six (6) months thereafter or upon the earlier termination of this Agreement pursuant to its terms. Any such penalties, damages, fees or other charges, when taken as a whole, shall not exceed the amounts that would have been owed by a Person other than an Affiliate of TransÉnergie in a comparable arm’s-length transaction or arrangement under the TransÉnergie OATT. Purchaser shall use commercially reasonable efforts to cause HQP to mitigate the amount of any such penalties, damages, fees or other charges. At Owner’s reasonable request, Purchaser shall make available to Owner any information reasonably necessary to support the amounts owed to Purchaser by Owner pursuant to this clause (b)(i). (ii) The Parties acknowledge and agree that the cessation of the accrual of AFUDC on Construction Costs and Carrying Charges on Pre-COD Expenses, in each case, pursuant to clause (a) above and the payment of amounts by Owner to Purchaser under clause (b)(i) above are an appropriate remedy and that any such modification or payment does not constitute a forfeiture or penalty of any kind. The Parties further acknowledge and agree that the damages for an Owner Delay are difficult or impossible to determine and that the damages calculated hereunder constitute a reasonable approximation of the harm or loss to Purchaser as a result thereof. (iii) Subject to the discharge by Owner of its obligations under Section 5.7(a), the rights provided in Section 3.3.12 and this Section 4.3.1 shall collectively be the sole and exclusive remedy of Purchaser with respect to an Owner Delay. The foregoing sentence shall not be construed in any way to limit (A) Purchaser’s right to recover any costs or expenses (including reasonable attorneys’ fees) reasonably incurred by Purchaser to recover any amounts owed to Purchaser by Owner under this Agreement, (B) Purchaser’s rights and remedies under the Purchaser’s Security Documents or Owner Guaranty or against Purchaser’s Lien or any other financial assurances held by Purchaser or (C) Purchaser’s right to recover payment of any indemnification obligations of Owner to Purchaser pursuant to Section 21.2.

Owner Delay. (a) If, as a result of an Owner Default, any conditions set forth in Section 4.2 shall not have been satisfied or duly waived within one hundred eighty (180) days following the later to occur of (i) the Target Date and (ii) the date upon which TransÉnergie has certified to Owner in good faith that the Québec Line is ready for Commissioning (such delay, an "“Owner Delay," ” and such one hundred eightieth (180th) day, "“Owner’s Initial Deadline"”), then, for purposes of cost recovery under Section 8.1.2, AFUDC shall not be accrued on the Construction Costs and Carrying Charges shall not be accrued on the Pre-COD Expenses, in each case, from and after Owner’s Initial Deadline. (b) If an Owner Delay continues beyond the second (2nd) anniversary of Owner’s Initial Deadline ("“Owner’s Final Deadline"”), then the following provisions shall also apply: (i) Purchaser shall have the right to recover from Owner, and Owner shall pay or reimburse to Purchaser, for each month (or part thereof) following Owner’s Final Deadline during which the Owner Delay is continuing, an amount equal to all penalties, damages, fees or other charges in respect of the Québec Line that are owed and paid by HQP to TransÉnergie, if any, under the TransÉnergie OATT with respect to such month (or part thereof); provided, however, that Owner’s maximum liability to Purchaser under this clause (b)(i) shall not exceed, in the aggregate, an amount equivalent to the sum of the transmission service payments in respect of the Québec Line that would have been owed by HQP to TransÉnergie under the TransÉnergie OATT (the "“OATT Payments"”) (exclusive of any penalties, damages, fees or other charges) if the Québec Line was operating at its full expected capacity following its commercial operation for the period commencing on Owner’s Final Deadline and ending six (6) months thereafter or upon the earlier termination of this Agreement pursuant to its terms. Any such penalties, damages, fees or other charges, when taken as a whole, shall not exceed the amounts that would have been owed by a Person other than an Affiliate of TransÉnergie in a comparable arm’s-length transaction or arrangement under the TransÉnergie OATT. Purchaser shall use commercially reasonable efforts to cause HQP to mitigate the amount of any such penalties, damages, fees or other charges. At Owner’s reasonable request, Purchaser shall make available to Owner any information reasonably necessary to support the amounts owed to Purchaser by Owner pursuant to this clause (b)(i). (ii) The Parties acknowledge and agree that the cessation of the accrual of AFUDC on Construction Costs and Carrying Charges on Pre-COD Expenses, in each case, pursuant to clause (a) above and the payment of amounts by Owner to Purchaser under clause (b)(i) above are an appropriate remedy and that any such modification or payment does not constitute a forfeiture or penalty of any kind. The Parties further acknowledge and agree that the damages for an Owner Delay are difficult or impossible to determine and that the damages calculated hereunder constitute a reasonable approximation of the harm or loss to Purchaser as a result thereof. (iii) Subject to the discharge by Owner of its obligations under Section 5.7(a), the rights provided in Section 3.3.12 and this Section 4.3.1 shall collectively be the sole and exclusive remedy of Purchaser with respect to an Owner Delay. The foregoing sentence shall not be construed in any way to limit (A) Purchaser’s right to recover any costs or expenses (including reasonable attorneys’ fees) reasonably incurred by Purchaser to recover any amounts owed to Purchaser by Owner under this Agreement, (B) Purchaser’s rights and remedies under the Purchaser’s Security Documents or Owner Guaranty or against Purchaser’s Lien or any other financial assurances held by Purchaser or (C) Purchaser’s right to recover payment of any indemnification obligations of Owner to Purchaser pursuant to Section 21.2.

Owner Delay. (a) If, as a result of an Owner Default, any conditions set forth in Section 4.2 shall not have been satisfied or duly waived within one hundred eighty (180) days following the later to occur of (i) the Target Date and (ii) the date upon which TransÉnergie has certified to Owner in good faith that the Québec Line is ready for Commissioning (such delay, an "Owner Delay," and such one hundred eightieth (180th) day, "Owner’s 's Initial Deadline"), then, for purposes of cost recovery under Section 8.1.2, AFUDC shall not be accrued on the Construction Costs and Carrying Charges shall not be accrued on the Pre-COD Expenses, in each case, from and after Owner’s 's Initial Deadline. (b) If an Owner Delay continues beyond the second (2nd) anniversary of Owner’s 's Initial Deadline ("Owner’s 's Final Deadline"), then the following provisions shall also apply: (i) Purchaser shall have the right to recover from Owner, and Owner shall pay or reimburse to Purchaser, for each month (or part thereof) following Owner’s 's Final Deadline during which the Owner Delay is continuing, an amount equal to all penalties, damages, fees or other charges in respect of the Québec Line that are owed and paid by HQP to TransÉnergie, if any, under the TransÉnergie OATT with respect to such month (or part thereof); provided, however, that Owner’s 's maximum liability to Purchaser under this clause (b)(i) shall not exceed, in the aggregate, an amount equivalent to the sum of the transmission service payments in respect of the Québec Line that would have been owed by HQP to TransÉnergie under the TransÉnergie OATT (the "OATT Payments") (exclusive of any penalties, damages, fees or other charges) if the Québec Line was operating at its full expected capacity following its commercial operation for the period commencing on Owner’s 's Final Deadline and ending six (6) months thereafter or upon the earlier termination of this Agreement pursuant to its terms. Any such penalties, damages, fees or other charges, when taken as a whole, shall not exceed the amounts that would have been owed by a Person other than an Affiliate of TransÉnergie in a comparable arm’sarm's-length transaction or arrangement under the TransÉnergie OATT. Purchaser shall use commercially reasonable efforts to cause HQP to mitigate the amount of any such penalties, damages, fees or other charges. At Owner’s 's reasonable request, Purchaser shall make available to Owner any information reasonably necessary to support the amounts owed to Purchaser by Owner pursuant to this clause (b)(i). (ii) The Parties acknowledge and agree that the cessation of the accrual of AFUDC on Construction Costs and Carrying Charges on Pre-COD Expenses, in each case, pursuant to clause (a) above and the payment of amounts by Owner to Purchaser under clause (b)(i) above are an appropriate remedy and that any such modification or payment does not constitute a forfeiture or penalty of any kind. The Parties further acknowledge and agree that the damages for an Owner Delay are difficult or impossible to determine and that the damages calculated hereunder constitute a reasonable approximation of the harm or loss to Purchaser as a result thereof.. 1014917.31-D.C. Server 1A - MSW (iii) Subject to the discharge by Owner of its obligations under Section 5.7(a), the rights provided in Section 3.3.12 and this Section 4.3.1 shall collectively be the sole and exclusive remedy of Purchaser with respect to an Owner Delay. The foregoing sentence shall not be construed in any way to limit (A) Purchaser’s 's right to recover any costs or expenses (including reasonable attorneys’ ' fees) reasonably incurred by Purchaser to recover any amounts owed to Purchaser by Owner under this Agreement, (B) Purchaser’s 's rights and remedies under the Purchaser’s 's Security Documents or Owner Guaranty or against Purchaser’s 's Lien or any other financial assurances held by Purchaser or (C) Purchaser’s 's right to recover payment of any indemnification obligations of Owner to Purchaser pursuant to Section 21.2.