Review of Notice. (i) Buyer shall, within fifteen (15) days after receipt of any Notice of Request for Progress Payment, determine whether (A) the Work evidenced by the Notice of Request for Progress Payment has been completed in conformance with the requirements of this Agreement; (B) the Notice of Request for Progress Payment and any required backup information have been properly submitted and (C) the Notice of Request for Progress Payment amount reflects the payment due under Appendix I and shall inform Seller as to whether it disputes any portion of the Notice of Request for Progress Payment. Buyer may also inform Seller as to whether Buyer disputes any portion of the Notice of Request for Progress Payment due to the failure of Seller (or the Contractor or any Subcontractor) to complete the Work covered by such Notice of Request for Progress Payment, and Buyer may withhold such portion of due under Seller’s invoice in the amount reasonably necessary to complete such portion of the Work in accordance with Seller’s Notice of Request for Progress Payment and this Agreement. (ii) Upon receipt of a notice from Buyer that the Notice of Request for Progress Payment is deficient, Seller shall promptly take any and all reasonable steps available to remedy any condition identified by Buyer leading to such claim of deficiency. Subject to a mutually agreed upon resolution of such claim of deficiency or a final determination of a court, payment of the disputed portion of Seller’s invoice shall be made by Buyer within ten (10) Business Days following the date of such agreement or determination. In the event that Buyer is entitled to withhold payment to Seller because a condition precedent set forth in this article 3 has not been satisfied, Buyer may elect to pay the amounts due to Contractor under the Primary Contracts directly to such Contractor and such payments shall be credited against the Purchase Price. Provided Buyer has paid such amounts to a Contractor, no action properly taken by Buyer in compliance with this Article 3 shall affect the Guaranteed Substantial Completion Date for the Plant. (iii) Subject to (A) such determination by Buyer and (B) the satisfaction of the conditions set forth in Section 3.2 (“Conditions Precedent”), and except for disputed portions of any Notice for Progress Payment, Buyer shall pay Seller on the applicable Progress Payment Date the stated amount, less any disputed portion of such Request of Request for Notice for Progress Payment and any withholding permitted under this Agreement. Late payments not excused under the provisions of this Section 3.3(d)(iii) shall accrue interest at the Late Payment Rate at that time from the date due until paid. Excused late payments shall not accrue interest until the event giving rise to the dispute has been remedied; provided, however, that if it is later determined that an excuse or withholding was improper, interest shall accrue at the Late Payment Rate on the amount which should have been paid from the date such funds should have been paid until actual payment is received by Seller. In the alternative, in the event of a disputed amount, Buyer may pay to Seller the entire amount stated in the Notice of Request for Progress Payment, and if it is subsequently determined that Buyer was entitled to withhold all or part of the amount shown on the Notice of Request for Progress Payment, Seller shall pay to Buyer upon demand interest at the Late Payment Rate on the amount that Buyer was entitled to withhold from the date of payment by Buyer until the earlier of the date of repayment to Buyer and the date on which Buyer was no longer entitled to withhold such amount. The determinations made by Buyer pursuant to this Section 3.3(d) and Section 3.2(j) are solely for the purpose of determining whether to pay a Progress Payment, and such determinations shall not prevent Buyer from subsequently asserting that Seller, a Contractor, or any Subcontractor failed to perform its obligations under a Transaction Document, nor shall such determinations be used as evidence that Seller, the Contractor, or any Subcontractor performed such obligations.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Review of Notice.
(i) Buyer PacifiCorp shall, within fifteen (15) days after receipt of any Notice of Request for Progress Payment, determine whether notify Developer if it disputes whether: (A) the Work evidenced by the Notice of Request for Progress Payment has been completed in conformance with the requirements of this Agreement; (B) the Notice of Request for Progress Payment and any required backup additional information requested by PacifiCorp pursuant hereto have been properly submitted and delivered to PacifiCorp in accordance with the requirements of this Section 3.4; or (C) the Progress Payment requested by Developer pursuant to the Notice of Request for Progress Payment amount reflects the payment due under is in accordance with Appendix I and shall inform Seller as to whether it R. If PacifiCorp disputes all or any portion of the Notice of Request for Progress Payment. Buyer may also inform Seller as to whether Buyer disputes any , then PacifiCorp may, in its discretion, withhold such portion of the Progress Payment requested by Developer in the Notice of Request for Progress Payment due to the failure of Seller (or the Contractor or any Subcontractor) to complete the Work covered by such Notice of Request for Progress Paymentas PacifiCorp, and Buyer in its discretion, determines may withhold such portion of due under Seller’s invoice in the amount be reasonably necessary to complete such any portion of the Work in accordance with Seller’s the Notice of Request for Progress Payment and this Agreement.
(ii) Upon receipt of a notice from Buyer PacifiCorp that the a Notice of Request for Progress Payment is deficientdisputed, Seller Developer shall promptly take any and all reasonable steps available actions as may be necessary to remedy any condition identified by Buyer PacifiCorp leading to such claim of deficiencydispute. Subject to a mutually agreed upon resolution of such claim of deficiency or a final determination of a court, payment Payment of the disputed portion of Seller’s invoice any Notice of Request for Progress Payment shall be made by Buyer PacifiCorp within ten (10) Business Days following the date on which the Parties mutually agree upon resolution of such agreement dispute or determinationsuch dispute is finally resolved pursuant to Section 32.2. In the no event that Buyer is entitled to withhold payment to Seller because a condition precedent set forth in this article 3 has not been satisfied, Buyer may elect to pay the amounts due to Contractor under the Primary Contracts directly to such Contractor and such payments shall be credited against the Purchase Price. Provided Buyer has paid such amounts to a Contractor, no any action properly taken by Buyer PacifiCorp in compliance with this Article ARTICLE 3 shall affect the Guaranteed Substantial Completion Date for the PlantFacility.
(iii) Subject to (A) such determination by Buyer and (B) the satisfaction of the conditions set forth in Section 3.2 (“Conditions Precedent”)3.3, as determined by PacifiCorp in its discretion, and except for disputed portions of any Notice of Request for Progress PaymentPayment pursuant to Section 3.4(d)(i), Buyer PacifiCorp shall pay Seller Developer on the applicable Progress Payment Date the stated amountrequested amount of Progress Payment, less any disputed portion of such Request Notice of Request for Notice for Progress Payment pursuant to Section 3.4(d)(i) and any withholding and Retainage permitted under this Agreement. .
(iv) Late payments not excused under the provisions of this Section 3.3(d)(iii3.4(d)(iii) shall accrue interest at the Late Payment Rate at that time from the date due until paid. Excused Disputed late payments shall not accrue interest until the event giving rise to the dispute has been remedied; provided, however, that if it is later determined that an excuse a disputed payment or withholding or Retainage was improper, interest shall accrue at the Late Payment Rate on the amount which should have been paid from the date such funds amount should have been paid until actual payment is received by Seller. In the alternativeDeveloper.
(v) If PacifiCorp, in the event its discretion, pays a disputed portion of a disputed amount, Buyer may pay Progress Payment requested by Developer pursuant to Seller the entire amount stated in the a Notice of Request for Progress Payment, Payment and if the Parties mutually agree or it is subsequently determined that Buyer PacifiCorp was entitled to withhold all or part such disputed portion of Progress Payment in accordance with the amount shown on the Notice provisions of Request for Progress Paymentthis Agreement, Seller then Developer shall pay to Buyer PacifiCorp upon demand interest at the Late Payment Rate on the amount disputed portion of the Progress Payment that Buyer PacifiCorp was entitled to withhold from the date of payment by Buyer PacifiCorp until the earlier of the date of repayment to Buyer PacifiCorp and the date on which Buyer was no longer entitled PacifiCorp offset such disputed portion of the Progress Payment against other payments owing by PacifiCorp to withhold such amountDeveloper under this Agreement. The determinations made by Buyer PacifiCorp pursuant to this Section 3.3(d) and Section 3.2(j) ARTICLE 3 are solely for the purpose of determining whether to pay a Progress Payment, and such determinations shall not prevent Buyer PacifiCorp from subsequently asserting that SellerDeveloper, a Contractor, Contractor or any Subcontractor failed to perform its respective obligations under a Transaction this or any other Project Document, nor shall such determinations be used as evidence that SellerDeveloper, the Contractor, Contractor or any Subcontractor performed such obligations.obligations in accordance with this or any other Project Document.
Appears in 2 contracts
Review of Notice.
(i) Buyer shall, within fifteen (15) days after receipt of any Notice of Request for Progress Payment, determine whether (A) the Work evidenced by the Notice of Request for Progress Payment has been completed in conformance with the requirements of this Agreement; (B) the Notice of Request for Progress Payment and any required backup information have been properly submitted and (C) the Notice of Request for Progress Payment amount reflects the payment due under Appendix I and shall inform Seller as to whether it disputes any portion of the Notice of Request for Progress Payment. Buyer may also inform Seller Xxxxxx as to whether Buyer disputes any portion of the Notice of Request for Progress Payment due to the failure of Seller (or the Contractor or any Subcontractor) to complete the Work covered by such Notice of Request for Progress Payment, and Buyer may withhold such portion of due under Seller’s invoice in the amount reasonably necessary to complete such portion of the Work in accordance with Seller’s Notice of Request for Progress Payment and this Agreement.
(ii) Upon receipt of a notice from Buyer that the Notice of Request for Progress Payment is deficient, Seller shall promptly take any and all reasonable steps available to remedy any condition identified by Buyer Xxxxx leading to such claim of deficiency. Subject to a mutually agreed upon resolution of such claim of deficiency or a final determination of a court, payment of the disputed portion of Seller’s invoice shall be made by Buyer within ten (10) Business Days following the date of such agreement or determination. In the event that Buyer Xxxxx is entitled to withhold payment to Seller because a condition precedent set forth in this article 3 has not been satisfied, Buyer Xxxxx may elect to pay the amounts due to Contractor under the Primary Contracts directly to such Contractor and such payments shall be credited against the Purchase Price. Provided Buyer has paid such amounts to a Contractor, no action properly taken by Buyer in compliance with this Article 3 shall affect the Guaranteed Substantial Completion Date for the Plant.
(iii) Subject to (A) such determination by Buyer Xxxxx and (B) the satisfaction of the conditions set forth in Section 3.2 (“Conditions Precedent”), and except for disputed portions of any Notice for Progress Payment, Buyer shall pay Seller on the applicable Progress Payment Date the stated amount, less any disputed portion of such Request of Request for Notice for Progress Payment and any withholding permitted under this Agreement. Late payments not excused under the provisions of this Section 3.3(d)(iii) shall accrue interest at the Late Payment Rate at that time from the date due until paid. Excused late payments shall not accrue interest until the event giving rise to the dispute has been remedied; provided, however, that if it is later determined that an excuse or withholding was improper, interest shall accrue at the Late Payment Rate on the amount which should have been paid from the date such funds should have been paid until actual payment is received by Seller. In the alternative, in the event of a disputed amount, Buyer may pay to Seller the entire amount stated in the Notice of Request for Progress Payment, and if it is subsequently determined that Buyer was entitled to withhold all or part of the amount shown on the Notice of Request for Progress Payment, Seller shall pay to Buyer upon demand interest at the Late Payment Rate on the amount that Buyer was entitled to withhold from the date of payment by Buyer until the earlier of the date of repayment to Buyer and the date on which Buyer Xxxxx was no longer entitled to withhold such amount. The determinations made by Buyer pursuant to this Section 3.3(d) and Section 3.2(j) are solely for the purpose of determining whether to pay a Progress Payment, and such determinations shall not prevent Buyer from subsequently asserting that Seller, a Contractor, or any Subcontractor failed to perform its obligations under a Transaction Document, nor shall such determinations be used as evidence that Seller, the Contractor, or any Subcontractor performed such obligations.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Review of Notice.
(i) Buyer shall, within fifteen (15) days after receipt of any Notice of Request for Progress Payment, determine whether (A) the Work evidenced by the Notice of Request for Progress Payment has been completed in conformance with the requirements of this Agreement; (B) the Notice of Request for Progress Payment and any required backup information have been properly submitted and (C) the Notice of Request for Progress Payment amount reflects the payment due under Appendix I and shall inform Seller as to whether it disputes any portion of the Notice of Request for Progress Payment. Buyer may also inform Seller as to whether Buyer disputes any portion of the Notice of Request for Progress Payment due to the failure of Seller (or the Contractor or any Subcontractor) to complete the Work covered by such Notice of Request for Progress Payment, and Buyer may withhold such portion of due under Seller’s invoice in the amount reasonably necessary to complete such portion of the Work in accordance with Seller’s Notice of Request for Progress Payment and this Agreement.
(ii) Upon receipt of a notice from Buyer that the Notice of Request for Progress Payment is deficient, Seller shall promptly take any and all reasonable steps available to remedy any condition identified by Buyer leading to such claim of deficiency. Subject to a mutually agreed upon resolution of such claim of deficiency or a final determination of a court, payment of the disputed portion of Seller’s invoice shall be made by Buyer within ten (10) Business Days following the date of such agreement or determination. In the event that Buyer is entitled to withhold payment to Seller because a condition precedent set forth in this article 3 has not been satisfied, Buyer may elect to pay the amounts due to Contractor under the Primary Contracts directly to such Contractor and such payments shall be credited against the Purchase Price. Provided Buyer has paid such amounts to a Contractor, no action properly taken by Buyer in compliance with this Article 3 shall affect the Guaranteed Substantial Completion Date for the Plant.
(iii) Subject to (A) such determination by Buyer and (B) the satisfaction of the conditions set forth in Section 3.2 (“Conditions Precedent”), and except for disputed portions of any Notice for Progress Payment, Buyer shall pay Seller on the applicable Progress Payment Date the stated amount, less any disputed portion of such Request of Request for Notice for Progress Payment and any withholding permitted under this Agreement. Late payments not excused under the provisions of this Section 3.3(d)(iii) shall accrue interest at the Late Payment Rate at that time from the date due until paid. Excused late payments shall not accrue interest until the event giving rise to the dispute has been remedied; provided, however, that if it is later determined that an excuse or withholding was improper, interest shall accrue at the Late Payment Rate on the amount which should have been paid from the date such funds should have been paid until actual payment is received by Seller. In the alternative, in the event of a disputed amount, Buyer may pay to Seller the entire amount stated in the Notice of Request for Progress Payment, and if it is subsequently determined that Buyer was entitled to withhold all or part of the amount shown on the Notice of Request for Progress Payment, Seller shall pay to Buyer upon demand interest at the Late Payment Rate on the amount that Buyer was entitled to withhold from the date of payment by Buyer until the earlier of the date of repayment to Buyer and the date on which Buyer was no longer entitled to withhold such amount. The determinations made by Buyer pursuant to this Section 3.3(d) and Section 3.2(j) are solely for the purpose of determining whether to pay a Progress Payment, and such determinations shall not prevent Buyer from subsequently asserting that Seller, a Contractor, or any Subcontractor failed to perform its obligations under a Transaction Document, nor shall such determinations be used as evidence that Seller, the Contractor, or any Subcontractor performed such obligations.obligations.
Appears in 1 contract
Samples: Asset Purchase Agreement
Review of Notice.
(i) Buyer PacifiCorp shall, within fifteen (15) days after receipt of any Notice of Request for Progress Payment, determine whether notify Developer if it disputes whether: (A) the Work evidenced by the Notice of Request for Progress Payment has been completed in conformance with the requirements of this Agreement; (B) the Notice of Request for Progress Payment and any required backup additional information requested by PacifiCorp pursuant hereto have been properly submitted and delivered to PacifiCorp in accordance with the requirements of this Section 3.4; or (C) the Progress Payment requested by Developer pursuant to the Notice of Request for Progress Payment amount reflects the payment due under is in accordance with Appendix I and shall inform Seller as to whether it R. If PacifiCorp disputes all or any portion of the Notice of Request for Progress Payment. Buyer may also inform Seller as to whether Buyer disputes any , then PacifiCorp may, in its discretion, withhold such portion of the Progress Payment requested by Developer in the Notice of Request for Progress Payment due to the failure of Seller (or the Contractor or any Subcontractor) to complete the Work covered by such Notice of Request for Progress Paymentas PacifiCorp, and Buyer in its discretion, determines may withhold such portion of due under Seller’s invoice in the amount be reasonably necessary to complete such any portion of the Work in accordance with Seller’s the Notice of Request for Progress Payment and this Agreement.
(ii) . Upon receipt of a notice from Buyer PacifiCorp that the a Notice of Request for Progress Payment is deficientdisputed, Seller Developer shall promptly take any and all reasonable steps available actions as may be necessary to remedy any condition identified by Buyer PacifiCorp leading to such claim of deficiencydispute. Subject to a mutually agreed upon resolution of such claim of deficiency or a final determination of a court, payment Payment of the disputed portion of Seller’s invoice any Notice of Request for Progress Payment shall be made by Buyer PacifiCorp within ten (10) Business Days following the date on which the Parties mutually agree upon resolution of such agreement dispute or determinationsuch dispute is finally resolved pursuant to Section 32.2. In the no event that Buyer is entitled to withhold payment to Seller because a condition precedent set forth in this article 3 has not been satisfied, Buyer may elect to pay the amounts due to Contractor under the Primary Contracts directly to such Contractor and such payments shall be credited against the Purchase Price. Provided Buyer has paid such amounts to a Contractor, no any action properly taken by Buyer PacifiCorp in compliance with this Article ARTICLE 3 shall affect the Guaranteed Substantial Completion Date for the Plant.
(iii) Facility. Subject to (A) such determination by Buyer and (B) the satisfaction of the conditions set forth in Section 3.2 (“Conditions Precedent”)3.3, as determined by PacifiCorp in its discretion, and except for disputed portions of any Notice of Request for Progress PaymentPayment pursuant to Section 3.4(d)(i), Buyer PacifiCorp shall pay Seller Developer on the applicable Progress Payment Date the stated amountrequested amount of Progress Payment, less any disputed portion of such Request Notice of Request for Notice for Progress Payment pursuant to Section 3.4(d)(i) and any withholding and Retainage permitted under this Agreement. Late payments not excused under the provisions of this Section 3.3(d)(iii3.4(d)(iii) shall accrue interest at the Late Payment Rate at that time from the date due until paid. Excused Disputed late payments shall not accrue interest until the event giving rise to the dispute has been remedied; provided, however, that if it is later determined that an excuse a disputed payment or withholding or Retainage was improper, interest shall accrue at the Late Payment Rate on the amount which should have been paid from the date such funds amount should have been paid until actual payment is received by SellerDeveloper. In the alternativeIf PacifiCorp, in the event its discretion, pays a disputed portion of a disputed amount, Buyer may pay Progress Payment requested by Developer pursuant to Seller the entire amount stated in the a Notice of Request for Progress Payment, Payment and if the Parties mutually agree or it is subsequently determined that Buyer PacifiCorp was entitled to withhold all or part such disputed portion of Progress Payment in accordance with the amount shown on the Notice provisions of Request for Progress Paymentthis Agreement, Seller then Developer shall pay to Buyer PacifiCorp upon demand interest at the Late Payment Rate on the amount disputed portion of the Progress Payment that Buyer PacifiCorp was entitled to withhold from the date of payment by Buyer PacifiCorp until the earlier of the date of repayment to Buyer PacifiCorp and the date on which Buyer was no longer entitled PacifiCorp offset such disputed portion of the Progress Payment against other payments owing by PacifiCorp to withhold such amountDeveloper under this Agreement. The determinations made by Buyer PacifiCorp pursuant to this Section 3.3(d) and Section 3.2(j) ARTICLE 3 are solely for the purpose of determining whether to pay a Progress Payment, and such determinations shall not prevent Buyer PacifiCorp from subsequently asserting that SellerDeveloper, a Contractor, Contractor or any Subcontractor failed to perform its respective obligations under a Transaction this or any other Project Document, nor shall such determinations be used as evidence that SellerDeveloper, the Contractor, Contractor or any Subcontractor performed such obligations.obligations in accordance with this or any other Project Document.
Appears in 1 contract
Samples: Transfer Agreement
Review of Notice.
(i) Buyer shall, within fifteen (15) days after receipt of any Notice of Request for Progress Payment, determine whether (A) the Work evidenced by the Notice of Request for Progress Payment has been completed in conformance with the requirements of this Agreement; (B) the Notice of Request for Progress Payment and any required backup information have been properly submitted and (C) the Notice of Request for Progress Payment amount reflects the payment due under Appendix I and shall inform Seller as to whether it disputes any portion of the Notice of Request for Progress Payment. Buyer may also inform Seller as to whether Buyer disputes any portion of the Notice of Request for Progress Payment due to the failure of Seller (or the Contractor or any Subcontractor) to complete the Work covered by such Notice of Request for Progress Payment, and Buyer may withhold such portion of due under Seller’s invoice in the amount reasonably necessary to complete such portion of the Work in accordance with Seller’s Notice of Request for Progress Payment and this Agreement.
(ii) Upon receipt of a notice from Buyer that the Notice of Request for Progress Payment is deficient, Seller shall promptly take any and all reasonable steps available to remedy any condition identified by Buyer leading to such claim of deficiency. Subject to a mutually agreed upon resolution of such claim of deficiency or a final determination of a court, payment of the disputed portion of Seller’s invoice shall be made by Buyer within ten (10) Business Days following the date of such agreement or determination. In the event that Buyer is entitled to withhold payment to Seller because a condition precedent set forth in this article 3 has not been satisfied, Buyer may elect to pay the amounts due to Contractor under the Primary Contracts directly to such Contractor and such payments shall be credited against the Purchase Price. Provided Buyer has paid such amounts to a Contractor, no action properly taken by Buyer in compliance with this Article 3 shall affect the Guaranteed Substantial Completion Date for the Plant.
(iii) Subject to (A) such determination by Buyer and (B) the satisfaction of the conditions set forth in Section 3.2 (“Conditions Precedent”), and except for disputed portions of any Notice for Progress Payment, Buyer shall pay Seller on the applicable Progress Payment Date the stated amount, less any disputed portion of such Request of Request for Notice for Progress Payment and any withholding permitted under this Agreement. Late payments not excused under the provisions of this Section 3.3(d)(iii) shall accrue interest at the Late Payment Rate at that time from the date due until paid. Excused late payments shall not accrue interest until the event giving rise to the dispute has been remedied; provided, however, that if it is later determined that an excuse or withholding was improper, interest shall accrue at the Late Payment Rate on the amount which should have been paid from the date such funds should have been paid until actual payment is received by Seller. In the alternative, in the event of a disputed amount, Buyer may pay to Seller the entire amount stated in the Notice of Request for Progress Payment, and if it is subsequently determined that Buyer was entitled to withhold all or part of the amount shown on the Notice of Request for Progress Payment, Seller shall pay to Buyer upon demand interest at the Late Payment Rate on the amount that Buyer was entitled to withhold from the date of payment by Buyer until the earlier of the date of repayment to Buyer and the date on which Buyer was no longer entitled to withhold such amount. The determinations made by Buyer pursuant to this Section 3.3(d) and Section 3.2(j) are solely for for the purpose of determining whether to pay a Progress Payment, and such determinations shall not prevent Buyer from subsequently asserting that Seller, a Contractor, or any Subcontractor failed to perform its obligations under a Transaction Document, nor shall such determinations be used as evidence that Seller, the Contractor, or any Subcontractor performed such obligations.obligations.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
