Performance Damages. Upon receipt by any Borrower Entity of any performance warranty damages (including liquidated damages (if any), but excluding delay damages) paid under any Major Project Document that exceed, in the aggregate, [xxx], the Borrower shall deliver to DOE within five Business Days a Prepayment Election Notice specifying that it elects to apply the Net Amount of such performance damages received to prepay the principal amount under one or more Advances and, if applicable, capitalized interest, and pay all accrued interest (other than capitalized interest) and other amounts due and payable in connection with such prepayment, and shall make such prepayment on the date specified in such Prepayment Election Notice, which shall be no later than five Business Days following delivery of such Prepayment Election Notice or if so elected under Section 3.06(f) (Delayed Mandatory Prepayment Election), the date determined in accordance therewith; provided, that the Borrower shall not be required to use for prepayment the portion of such performance damages that the Borrower and DOE reasonably determine are necessary to repair, replace or modify the Project, any Covered Spoke or any portion of any thereof, to eliminate or mitigate any operational underperformance by the Project or such Covered Spoke, in each case, to which such performance damages directly related, or otherwise, after the end of the Availability Period, for any other Project Costs, or Covered Spokes respectively, in each case, to which such performance damages directly related, to the extent such performance damages are used for such purposes within the twelve months following the receipt thereof. If performance damages that are not applied to prepay Advances or interest or other amounts thereon pursuant to the proviso of the preceding sentence are not used within twelve months after receipt thereof to repair, replace or modify the Project, a Covered Spoke or a part of any thereof, the Borrower shall deliver a Prepayment Election Notice electing to apply such unused performance damages to prepay the Advances and, if applicable, capitalized interest thereon and all accrued interest (other than capitalized interest) and other amounts due and payable in connection with such prepayment in accordance with this paragraph as if they were received on the last day of such twelve month period or if so elected under Section 3.06(f) (Delayed Mandatory Prepayment Election), the date determined in accordance therewith.
Performance Damages. (a) If the Measurement Period Net Output during any Measurement Period is equal to or greater than the Measurement Period Guaranteed Amount for such Measurement Period, then Seller shall not be liable to PacifiCorp for any Performance Damages in respect of such Measurement Period.
(b) If the Measurement Period Net Output during any Measurement Period is less than the Measurement Period Guaranteed Amount for such Measurement Period, then Seller shall be liable to PacifiCorp for liquidated damages (“Performance Damages”) in respect of such Measurement Period calculated as follows: Performance Damages = Output Shortfall * Performance Guarantee Cover Cost Where: Output Shortfall = the positive difference between the Measurement Period Net Output and the Measurement Period Guaranteed Amount for such Measurement Period (in MWh); and Performance Guarantee Cover Cost = the weighted average PacifiCorp’s Cost to Cover for such Measurement Period (in $/MWh), where the weighting is based on the PacifiCorp’s Cost to Cover in the hours in such Measurement Period in which the Measurement Period Hourly Net Output is less than the Expected Hourly Net Output (as such Expected Hourly Net Output is determined based on the Expected Net Output Excel File).
Performance Damages. (a) If the aggregate amount of Net Output delivered to PacifiCorp during any Contract Year is equal to or greater than the Guaranteed Amount for such Contract Year, then Seller shall not be liable to PacifiCorp for any Performance Damages in respect of such Contract Year.
(b) If the aggregate amount of Net Output delivered to PacifiCorp during any Contract Year is less than the Guaranteed Amount for such Contract Year, then Seller shall determine the shortfall amount (the “Output Shortfall”) for such Contract Year (in MWh) in accordance with the following formula (each component determined for such Contract Year): Output Shortfall = Expected Energy Amount – Excluded Amount – Net Output
(c) If the Output Shortfall is a positive number, then Seller shall pay PacifiCorp liquidated damages (“Performance Damages”) in respect of such Contract Year equal to the product of (i) the Output Shortfall for such Contract Year, multiplied by (ii) PacifiCorp's Cost to Cover for such Contract Year. If the Output Shortfall is a negative number, then Seller shall not be obligated to pay PacifiCorp any Performance Damages in respect of such Contract Year.
Performance Damages. Claims under this Section 15 shall be time-barred 7 years after the Closing Date. Section 9 shall apply with the exception of Sections 9.4.1and 9.5. For the purposes of Sections 15.1 and 15.4, "Loss" or "Losses" shall include consequential or indirect damages (Folgeschaden, mittelbare Schaden) and loss of profits (entgangener Gewinn). The limitations pursuant to Section 9.1, second to last and last sentence, shall apply.
Performance Damages.
(a) If Seller fails to achieve the Power Block Construction Start Milestone by the Power Block Construction Start Milestone Date, Seller shall pay liquidated damages to Buyer in an amount equal to $6,840 per day, up to a maximum of $615,600 in the aggregate for each day intervening between the Power Block Construction Start Milestone Date and the earlier of (x) the date the Power Block Construction Start Milestone is achieved, and (y) the date, if any, on which this Agreement is terminated pursuant to Section 2.4. Notwithstanding the foregoing, if Seller achieves Commercial Operation by the Commercial Operation Milestone Date, any such liquidated damages paid by Seller under this Section 3.7(a) shall be returned by Buyer to Seller without interest.
(b) If Seller fails to achieve the Commercial Operation Milestone by the Commercial Operation Milestone Date, Seller shall pay liquidated damages to Buyer in an amount equal to $20,520 per day, up to a maximum of $1,847,000 in the aggregate, for each day intervening between the Commercial Operation Milestone Date and the earlier of (x) the date Commercial Operation is achieved, and (y) the date, if any, on which this Agreement is terminated pursuant to Section 2.4.
(c) Damages that Buyer would incur due to Seller’s failure to timely achieve a Milestone would be difficult or impossible to predict with certainty, and it is impractical or difficult to assess actual damages in those circumstances, but the liquidated damages set forth in this Section 3.7 are fair and reasonable calculations of such damages.
Performance Damages. If Seller fails to achieve the Commencement Date by the Guaranteed Commencement Date, Seller shall pay liquidated damages to Buyer in an amount equal to five thousand dollars ($5,000) per day (“Daily Delay Damages”) for each day intervening between the Guaranteed Commencement Date and the earlier of (a) the Commencement Date and (b) the date, if any, on which this Agreement is terminated by Buyer pursuant to Section 2.4. The Parties agree that (x) it is impractical or extremely difficult to determine actual damages to which Buyer would be entitled in the foregoing circumstance, and
Performance Damages. Damages for deficient performances of the Turbines are limited to the damages set forth in Article 7.
Performance Damages. If the Event is held, but the Hotel does not realize the Total Anticipated Revenue from your Event, you agree to pay the Hotel an amount equal to 100% of the charges (including labor, gratuities, and service charges, rentals and applicable taxes) for the final guarantee or contracted number of guests, whichever is h igher.
Performance Damages. (a) If Seller fails to achieve the Commercial Operation Date by March 31, 2009, except to the extent due to a Force Majeure event, Seller shall pay liquidated damages to Buyer in an amount equal to $40,000/day for each day of delay thereafter, provided, however, that the maximum liability of Seller under this Section 11.3(a) during the Agreement Term shall not exceed $7.2 million.
(b) [Deleted]
Performance Damages. Any performance damage payment in an amount greater than $5,000,000 made to any Noble Entity (or the Noble Entities in the aggregate) for or on account of any permanent diminution in the performance of any of the Projects, including liquidated damages for failing to achieve the Power Curve Guarantee (as defined in the Turbine Supply Agreement), shall be applied to the prepayment of the First Lien Obligations as provided in Section 4.1 of the Intercreditor Agreement (pursuant to an Executed Withdrawal/Transfer Certificate executed and delivered to Depositary) with any surplus applied in accordance with the Intercreditor Agreement.