Common use of Pre-Commencement Date Termination or Suspension Clause in Contracts

Pre-Commencement Date Termination or Suspension. (a) Notwithstanding any provision in this Agreement to the contrary, if this Agreement were to be terminated by Owner pursuant to Section 15.1 hereof after the Preliminary Notice to Proceed but prior to the occurrence of the Commencement Date, the total cancellation costs that Owner shall be responsible for hereunder in connection with the Services undertaken by Contractor following such Preliminary Notice to Proceed shall be equal to the difference of (i) the cancellation amount minus (ii) [*] in each case as set forth on Exhibit 1 of the Preliminary Notice to Proceed for the Project Month in which such termination occurs (provided, that if prior to any such termination the pre-Commencement Date Services under Sections 2.2.1 and 2.2.2 hereunder shall have been suspended hereunder, the period of such suspension shall be excluded for purposes of determining the applicable Project Month on said Exhibit 1). Owner and Contractor hereby acknowledge and agree that the cancellation charges fixed pursuant to the Preliminary Notice to Proceed and this Section 2.2.3(a) are reasonable, and have been agreed upon and fixed hereunder by the Parties because of the difficulty of ascertaining on the date hereof the exact amount of cancellation-related costs that will be actually incurred by Contractor in such event, and the Parties hereby agree that the fixed amounts specified herein shall be applicable regardless of the amount of such costs actually incurred by Contractor as a result of any termination of this Agreement by Owner pursuant to Section 15.1 hereof prior to the Commencement Date. (b) Contractor will be paid monthly in arrears (within thirty (30) days of receipt by Owner of an invoice and reasonable supporting documentation therefor) for the pre-Commencement Date Services actually performed under Sections 2.2.1 and 2.2.2 in accordance with the Payment Schedule set forth on Exhibit 2 of the Preliminary Notice to Proceed; [*]. In addition, upon the occurrence of the Commencement Date, Owner shall withhold from the first Scheduled Payment to be made to Contractor on or after the Commencement Date under Section 4.2.2 hereof, as Retainage, an amount equal to 5% of all payments theretofor made to Contractor pursuant to this Section 2.2.3(b), which Retainage shall be in addition to the 5% of such Scheduled Payment to be withheld from such payment as Retainage pursuant to Section 4.2.4 hereof. (c) If the Provisional Commencement Date shall not have occurred on or before September 23, 1998, or if the Commencement Date shall not have occurred on or before January 31, 1999, in either case for any reason other than Contractor's breach of its obligations hereunder or a Force Majeure Event, Contractor may suspend its performance of the Services under Sections 2.2.1 and 2.2.2 hereof upon ten (10) days' prior written notice to Owner, which suspension may continue until such time as the Provisional Commencement Date or the Commencement Date, as the case may be, occurs hereunder. If Contractor so suspends its performance hereunder, each of the Guaranteed Completion Dates, the Construction Progress Milestone Dates, the Payment and Milestone Schedule and the Project Schedule shall be extended by the same number of days as the Contractor's performance is so suspended under this Section 2.2.3(c); provided, however, that if such suspension continues for more than sixty (60) days, such day-for-day schedule extension shall no longer be applicable and instead an equitable adjustment to one or more of the Contract Price, the Guaranteed Completion Dates, the Construction Progress Milestone Dates, the Payment and Milestone Schedule, the Project Schedule and, as appropriate, such other provisions of this Agreement that may be affected thereby, shall be made by the agreement of Owner and Contractor or otherwise pursuant to Article 12 or 21 hereof.

Pre-Commencement Date Termination or Suspension. (a) Notwithstanding any provision in this Agreement to the contrary, if this Agreement were to be terminated by Owner pursuant to Section 15.1 or 15.2 hereof after the Preliminary Notice to Proceed but prior to the occurrence of the Commencement Date, the total cancellation costs that Owner shall be responsible for hereunder in connection with the Services undertaken by Contractor following such Preliminary Notice to Proceed Contractor, if any, shall be equal to the difference of cancellation charges that are specified to be due and payable pursuant to (iand subject to the limits set forth in) the cancellation amount minus (ii) [*] in each case as set forth on Exhibit 1 terms and conditions of the Preliminary Limited Notice to Proceed for the Project Month in which such termination occurs (providedProceed; PROVIDED, HOWEVER, that if prior to any such termination the pre-Commencement Date Services under Sections 2.2.1 and 2.2.2 hereunder shall have been suspended hereunder, the period of such suspension shall be excluded for purposes of determining the applicable Project Month on said Exhibit 1). Owner and Contractor hereby acknowledge and agree that the cancellation charges fixed pursuant to the Preliminary Notice to Proceed and this Section 2.2.3(a) are reasonable, and have been agreed upon and fixed hereunder by the Parties because of the difficulty of ascertaining on the date hereof the exact amount of cancellation-related costs that will be actually incurred by Contractor in connection with items procured by Contractor shall not be included in such eventcancellation charges until Contractor shall have delivered to Owner (or to Owner's designee, which may be any other AES affiliate or any third party purchaser, provided that such assignment is consistent with the provisions of Article 17 hereof) all documents necessary to transfer all of Contractor's right, title and the Parties hereby agree that the fixed amounts specified herein interest and to such items to Owner (or such designee) and, with respect to such items which Contractor has received possession of, Contractor shall be applicable regardless have delivered such items to Owner (or such designee), in each case free and clear of all liens and encumbrances made by, through or under Contractor or any Subcontractor (subject to Owner's payment of the amount of such costs actually incurred by cancellation charges due under the Limited Notice to Proceed). Contractor as a result of shall use all reasonable efforts to minimize any termination of cancellation charges under this Agreement by Owner pursuant to Section 15.1 hereof prior to the Commencement Date2.2.2. (b) Contractor will be paid monthly in arrears (within thirty (30) days of receipt by Owner of an invoice and reasonable supporting documentation therefor) for the pre-Commencement Date Services actually performed under Sections 2.2.1 and 2.2.2 in accordance with the Payment Schedule Except as set forth on Exhibit 2 of the Preliminary Notice to Proceed; [*]. In addition, upon the occurrence of the Commencement Datein Section 2.2.2(a) hereof, Owner shall withhold from the first Scheduled Payment to be made have no other payment or reimbursement obligation to Contractor on or after with respect to Contractor's performance of Services prior to the Commencement Date under hereunder, and Contractor hereby acknowledges and agrees that all costs and expenses incurred by Contractor (other than those covered by Section 4.2.2 2.2.2(a) hereof, as Retainage, an amount equal ) in performing Services hereunder prior to 5% of all payments theretofor made to Contractor pursuant to this Section 2.2.3(b), which Retainage shall be in addition to the 5% of such Scheduled Payment to be withheld from such payment as Retainage pursuant to Section 4.2.4 hereof. (c) If the Provisional Commencement Date shall not have occurred on or before September 23, 1998, or if the Commencement Date shall not have occurred on or before January 31, 1999, in either case for will be at its own risk and expense and that it hereby waives any reason other than Contractor's breach of its obligations hereunder or a Force Majeure Event, Contractor may suspend its performance of the Services under Sections 2.2.1 and 2.2.2 hereof upon ten (10) days' prior written notice all rights to require any payment therefor from Owner, which suspension may continue until such time as the Provisional Commencement Date or the Commencement Date, as the case may be, occurs hereunder. If Contractor so suspends its performance whether arising hereunder, each of the Guaranteed Completion Datesat law or in equity, the Construction Progress Milestone Dates, the Payment and Milestone Schedule and the Project Schedule shall be extended by the same number of days except as the Contractor's performance is so suspended under this expressly set forth in Section 2.2.3(c); provided, however, that if such suspension continues for more than sixty (602.2.2(a) days, such day-for-day schedule extension shall no longer be applicable and instead an equitable adjustment to one or more of the Contract Price, the Guaranteed Completion Dates, the Construction Progress Milestone Dates, the Payment and Milestone Schedule, the Project Schedule and, as appropriate, such other provisions of this Agreement that may be affected thereby, shall be made by the agreement of Owner and Contractor or otherwise pursuant to Article 12 or 21 hereof.