Common use of SCE Termination Right – Excess Network Upgrade Costs Clause in Contracts

SCE Termination Right – Excess Network Upgrade Costs. SCE has the right to terminate this Agreement on Notice, which will be effective five (5) Business Days after such Notice is given to Seller, on or before the date that is sixty (60) days after Seller provides to SCE the results of any Interconnection Study or interconnection agreement tendered to Seller by the T&D Provider if: Such Interconnection Study(ies) or agreement(s) associated with the Generating Facility as of the date of the termination Notice, estimates, includes, specifies or reflects that the maximum total cost of transmission upgrades or new transmission facilities that are, or may become, reimbursable by SCE, the CAISO, or any T&D Provider under the jurisdiction of the CAISO, to Seller (“Aggregate Network Upgrade Costs”), may in the aggregate exceed [dollar amount text] dollars ($[Number]) (“Network Upgrades Cap”), irrespective of any subsequent amendments of such Interconnection Study(ies) or agreement(s) or any contingencies or assumptions upon which such Interconnection Study(ies) or agreement(s) is based; or {SCE Note: Monetary threshold to be based upon transmission-related costs allocated to the Project that SCE would incur as estimated in the most recent Interconnection Study, or, if applicable on value included in Seller’s offer.} SCE must procure transmission service from any other participating transmission owner to allow SCE to Schedule energy from the Project and the cost for such transmission service is not reimbursed or paid by Seller. If SCE exercises its termination right pursuant to this Section 10.05(a), no Termination Payment will be due or owing by either Party and Seller will be entitled to a return of any Development Security provided to SCE. Notwithstanding anything to the contrary in this Section 10.05(a), SCE shall have no right to terminate this Agreement under this Section 10.05(a) if Seller, concurrently with its provision of the first Interconnection Study or interconnection agreement tendered to Seller by the T&D Provider that may give rise to a termination right of SCE under this Section 10.05(a), provides Notice to SCE that Seller irrevocably elects to owe to SCE: the amount by which the Aggregate Network Upgrade Costs exceed the Network Upgrades Cap (“Excess Network Upgrade Costs”), provided, (I) with respect to this Section 10.05(a)(ii)(A), and solely for the purpose of calculating Excess Network Upgrade Costs, Aggregate Network Upgrade Costs shall be updated to reflect the latest interconnection agreement (including any amendments or modifications thereto) tendered to Seller; and (II) under no circumstance shall the calculation of Excess Network Upgrade Costs be less than zero dollars ($0), and any costs for transmission services specified in Section 10.05(a)(i)(B); Seller’s failure to provide an election pursuant to this Section 10.05(a)(ii) shall be deemed to be an election not to exercise such rights. If Seller elects to pay, without reimbursement, for the Excess Network Upgrade Costs pursuant to this Section 10.05(a), in no event shall Seller have any interest in or rights or title to any Network Upgrades or Congestion Revenue Rights (as that term is defined in the CAISO Tariff) in connection with the development of the Project or the delivery of Product to SCE pursuant to this Agreement. Limitation on Sales from the Project after Certain Terminations of this Agreement. If Seller terminates this Agreement as provided in Sections 2.07 or 8.03 (based on a Force Majeure as to which Seller is the Claiming Party), or if SCE terminates this Agreement due to Seller’s Event of Default prior to the Initial Delivery Date, neither Seller nor Seller’s Affiliates may sell, market or deliver any Product (or any component of the Product) associated with or attributable to the Project to a party other than SCE for a period of two (2) years following the Early Termination Date, unless prior to selling, marketing or delivering such Product, or entering into the agreement to sell, market or deliver such Product to a party other than SCE, Seller or Seller’s Affiliates provides SCE with a written offer to sell the Product to SCE which provides SCE the right to select in its sole discretion to purchase such Product on either the terms and conditions materially similar to the terms and conditions contained in this Agreement or the terms and conditions to which the third party agreed, and SCE fails to accept such offer within forty-five (45) days after SCE’s receipt thereof. Neither Seller nor Seller’s Affiliates may sell or transfer the Project or any part thereof, any Interconnection Queue Position(s) (if applicable), or any of Seller’s land rights or interests in the Site so long as the limitations contained in this Section 10.06 apply, unless the transferee agrees to be bound by the terms set forth in this Section 10.06 pursuant to a written agreement approved by SCE. LIMITATIONS Limitation of Remedies, Liability and Damages. EXCEPT AS SET FORTH HEREIN, THERE ARE NO WARRANTIES BY EITHER PARTY UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY WILL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED, UNLESS THE PROVISION IN QUESTION PROVIDES THAT THE EXPRESS REMEDIES ARE IN ADDITION TO OTHER REMEDIES THAT MAY BE AVAILABLE. SUBJECT TO SECTION 12.04 (PROVISIONAL RELIEF), IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING THE PROVISIONS OF ARTICLE 13 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. NOTHING IN THIS ARTICLE PREVENTS, OR IS INTENDED TO PREVENT SCE FROM PROCEEDING AGAINST OR EXERCISING ITS RIGHTS WITH RESPECT TO ANY PROJECT SECURITY. No Representation by SCE. Any review by SCE or its consultants of the Project or any aspect thereof, including the design, construction or refurbishment, operation or maintenance of the Project, or otherwise, is solely for SCE’s information. By making such review, SCE makes no representation as to the economic and technical feasibility, operational capability, or reliability of the Project, and Seller shall in no way represent to any third party that any such review by SCE of the Project, including any review of the design, construction or renovation, operation, or maintenance of the Project by SCE, constitutes any such representation by SCE. Any review, approval, request, or requirement of material submitted by Seller shall mean only that such Required Material is acceptable to SCE solely for SCE’s internal purposes and benefit, and will not in any way be construed to mean that such material is accurate, suitable for its intended purpose, in compliance with any Applicable Law or other requirement, or endorsed for the benefit of any other party, including Seller. Further, Seller acknowledges and agrees that SCE shall have no liability to Seller or any other third party with respect to any Required Material so reviewed, approved, requested or required by SCE or on SCE’s behalf. Seller is solely responsible for the economic and technical feasibility, operational capability, and reliability of the Project. Separation of Functions. Nothing in this Agreement is intended to abrogate, limit, amend or modify the terms of any other agreement between Seller and SCE, including any interconnection agreement or tariff, and no breach under such other agreement shall excuse a Party’s nonperformance under this Agreement, unless the breach of such other agreement is also an Event of Default under this Agreement. Nothing in this Agreement is intended to provide any rights or obligations to either Party with respect to: any relationship between the Parties in which SCE is acting in its capacity as an owner or provider of electrical interconnection, transmission, or distribution service or equipment (including any interconnection agreement or tariff), or electrical interconnection, transmission, or distribution service or equipment. SCE is not responsible or liable in any way for: any delay or failure by Seller to achieve the Initial Delivery Date by the Expected Initial Delivery Date or the Initial Delivery Deadline, as applicable, related to electrical interconnection, transmission, or distribution service or equipment; any costs or damages incurred by Seller as a result thereof or any reduction in payments under this Agreement resulting from any delay in achieving the Initial Delivery Date by the Expected Initial Delivery Date or Initial Delivery Deadline, as applicable, related to electrical interconnection, transmission, or distribution service or equipment; or

SCE Termination Right – Excess Network Upgrade Costs. SCE has the right to terminate this Agreement on Notice, which will be effective five (5) Business Days after such Notice is given to Seller, on or before the date that is sixty (60) days after Seller provides to SCE the results of any Interconnection Study or interconnection agreement tendered to Seller (including any agreement tendered for interconnecting, or establishing service for, the Project for purposes of charging the Project with electric energy) by the T&D Transmission Provider if: Such Interconnection Study(ies) Study or agreement(s) associated with the Generating Facility agreement as of the date of the termination Notice, estimates, includes, specifies or reflects that the maximum total cost of transmission upgrades or new transmission facilities that are, or may become, reimbursable by SCE, the CAISO, or any T&D Transmission Provider under the jurisdiction of the CAISO, to Seller (“Aggregate Network Upgrade Costs”), may in the aggregate exceed [dollar amount text] dollars ($[Number]) (“Network Upgrades Cap”), irrespective of any subsequent amendments of such Interconnection Study(ies) Study or agreement(s) agreement or any contingencies or assumptions upon which such Interconnection Study(ies) Study or agreement(s) agreement is based; or {SCE Note: Monetary threshold to be based upon transmission-related costs allocated to the Project that SCE would incur as estimated in the most recent Interconnection Study, or, if applicable applicable, on value included in Seller’s offer.} SCE must procure transmission service from any other participating transmission owner to allow SCE to Schedule electric energy from the Project and the cost for such transmission service is not reimbursed or paid by Seller. If SCE exercises its termination right pursuant to this Section 10.05(a5.01(b), no Termination Payment will be due or owing by either Party and Seller will be entitled to a return of any Development Security provided to SCE. Notwithstanding anything to the contrary in this Section 10.05(a5.01(b), SCE shall have no right to terminate this Agreement under this Section 10.05(a5.01(b) if Seller, concurrently with its provision of the first Interconnection Study or interconnection agreement tendered to Seller by the T&D Transmission Provider that may give rise to a termination right of SCE under this Section 10.05(a5.01(b), provides Notice to SCE that Seller irrevocably elects to owe to SCE: the amount by which the Aggregate Network Upgrade Costs exceed the Network Upgrades Cap (“Excess Network Upgrade Costs”), provided, (I) with respect to this Section 10.05(a)(ii)(A5.01(b)(ii)(A), and solely for the purpose of calculating Excess Network Upgrade Costs, Aggregate Network Upgrade Costs shall be updated to reflect the latest interconnection agreement (including any amendments or modifications thereto) tendered to Seller; and (II) under no circumstance shall the calculation of Excess Network Upgrade Costs be less than zero dollars ($0), and any costs for transmission services specified in Section 10.05(a)(i)(B5.01(b)(i)(B); Seller’s failure to provide an election pursuant to this Section 10.05(a)(ii5.01(b)(ii) shall be deemed to be an election not to exercise such rights. If Seller elects to pay, without reimbursement, for the Excess Network Upgrade Costs pursuant to this Section 10.05(a5.01(b), in no event shall Seller have any interest in or rights or title to any Network Upgrades or Congestion Revenue Rights (as that term is defined in the CAISO Tariff) in connection with the development of the Project or the delivery of Product to SCE pursuant to this Agreement. Limitation on Sales from the Project after Certain Terminations of this Agreement. If Seller terminates this Agreement as provided in Sections 2.07 or 8.03 (based on a Force Majeure as The Parties agree and acknowledge that there may be an Interconnection Study and interconnection agreement for charging electric energy to which Seller is the Claiming Party), or if SCE terminates this Agreement due to Seller’s Event of Default prior to the Initial Delivery Date, neither Seller nor Seller’s Affiliates may sell, market or deliver any Product (or any component of the Product) associated with or attributable to the Project to a party other than SCE for a period of two (2) years following the Early Termination Date, unless prior to selling, marketing or delivering such Product, or entering into the agreement to sell, market or deliver such Product to a party other than SCE, Seller or Seller’s Affiliates provides SCE with a written offer to sell the Product to SCE which provides SCE the right to select in its sole discretion to purchase such Product on either the terms and conditions materially similar to the terms and conditions contained in this Agreement or the terms and conditions to which the third party agreed, and SCE fails to accept such offer within forty-five (45) days after SCE’s receipt thereof. Neither Seller nor Seller’s Affiliates may sell or transfer the Project or any part thereof, any Interconnection Queue Position(s) (if applicable), or any of Seller’s land rights or interests in the Site so long as the limitations contained in this Section 10.06 apply, unless the transferee agrees to be bound by the terms set forth in this Section 10.06 pursuant to a written agreement approved by SCE. LIMITATIONS Limitation of Remedies, Liability and Damages. EXCEPT AS SET FORTH HEREIN, THERE ARE NO WARRANTIES BY EITHER PARTY UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY WILL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED, UNLESS THE PROVISION IN QUESTION PROVIDES THAT THE EXPRESS REMEDIES ARE IN ADDITION TO OTHER REMEDIES THAT MAY BE AVAILABLE. SUBJECT TO SECTION 12.04 (PROVISIONAL RELIEF), IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING THE PROVISIONS OF ARTICLE 13 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. NOTHING IN THIS ARTICLE PREVENTS, OR IS INTENDED TO PREVENT SCE FROM PROCEEDING AGAINST OR EXERCISING ITS RIGHTS WITH RESPECT TO ANY PROJECT SECURITY. No Representation by SCE. Any review by SCE or its consultants of the Project or any aspect thereof, including the design, construction or refurbishment, operation or maintenance of the Project, or otherwise, is solely for SCE’s information. By making such review, SCE makes no representation as to the economic and technical feasibility, operational capability, or reliability of the Project, and Seller shall in no way represent to any third party that any such review by SCE of a separate Interconnection Study and interconnection agreement for discharging electric energy from the Project. If there are two separate studies and agreements for charging and discharging electric energy, including any review the Parties agree that for purposes of Section 5.01(b)(i)(A), the design, construction Aggregate Network Upgrade Costs shall reflect the aggregate maximum cost estimates for the total cost of transmission upgrades or renovation, operationnew transmission facilities that are, or maintenance of the Project may become, reimbursable by SCE, constitutes or any such representation Transmission Provider under the jurisdiction of the CAISO, including costs reimbursed by SCE. Any review, approval, request, or requirement any Transmission Provider under the jurisdiction of material submitted by Seller shall mean only that such Required Material is acceptable to SCE solely for SCE’s internal purposes and benefitthe CAISO, and will not in any way be construed to mean that such material is accurate, suitable for its intended purpose, in compliance with any Applicable Law or other requirement, or endorsed for the benefit of any other party, including Seller. Further, Seller acknowledges and agrees that SCE shall have no liability to Seller or any other third party with respect to any Required Material so reviewed, approved, requested or required by SCE or on SCE’s behalf. Seller is solely responsible for as set forth in the economic and technical feasibility, operational capability, and reliability of the Project. Separation of Functions. Nothing in this Agreement is intended to abrogate, limit, amend or modify the terms of any other agreement between Seller and SCE, including any Interconnection Study and/or interconnection agreement or tariff, and no breach under such other agreement shall excuse a Party’s nonperformance under this Agreement, unless the breach of such other agreement is also an Event of Default under this Agreement. Nothing in this Agreement is intended to provide any rights or obligations to either Party with respect to: any relationship between the Parties in which SCE is acting in its capacity as an owner or provider of electrical interconnection, transmission, or distribution service or equipment (including any interconnection agreement or tariff), or electrical interconnection, transmission, or distribution service or equipment. SCE is not responsible or liable in any way for: any delay or failure by Seller to achieve the Initial Delivery Date by the Expected Initial Delivery Date or the Initial Delivery Deadlineagreement, as applicable, related to electrical interconnection, transmission, or distribution service or equipment; any costs or damages incurred by Seller as a result thereof or any reduction in payments under this Agreement resulting from any delay in achieving the Initial Delivery Date by the Expected Initial Delivery Date or Initial Delivery Deadline, as applicable, related to electrical interconnection, transmission, or distribution service or equipment; orfor both charging and discharging electric energy.

SCE Termination Right – Excess Network Upgrade Costs. SCE has the right to terminate this Agreement on Notice, which will be effective five (5) Business Days after such Notice is given to Seller, on or before the date that is sixty (60) days after Seller provides to SCE the results of any Interconnection Study or interconnection agreement tendered to Seller (including any agreement tendered for interconnecting, or establishing service for, the Project for purposes of charging the Project with electric energy) by the T&D Transmission Provider if: Such Interconnection Study(ies) Study or agreement(s) associated with the Generating Facility agreement as of the date of the termination Notice, estimates, includes, specifies or reflects that the maximum total cost of transmission upgrades or new transmission facilities that are, or may become, reimbursable by SCE, the CAISO, or any T&D Transmission Provider under the jurisdiction of the CAISO, to Seller (“Aggregate Network Upgrade Costs”), may in the aggregate exceed [dollar amount text] dollars ($[Number]) (“Network Upgrades Cap”), irrespective of any subsequent amendments of such Interconnection Study(ies) Study or agreement(s) agreement or any contingencies or assumptions upon which such Interconnection Study(ies) Study or agreement(s) agreement is based; or {SCE Note: Monetary threshold to be based upon transmission-related costs allocated to the Project that SCE would incur as estimated in the most recent Interconnection Study, or, if applicable applicable, on value included in Seller’s offer.} SCE must procure transmission service from any other participating transmission owner to allow SCE to Schedule energy from the Project and the cost for such transmission service is not reimbursed or paid by Seller. If SCE exercises its termination right pursuant to this Section 10.05(a5.01(b), no Termination Payment will be due or owing by either Party and Seller will be entitled to a return of any Development Security provided to SCE. Notwithstanding anything to the contrary in this Section 10.05(a5.01(b), SCE shall have no right to terminate this Agreement under this Section 10.05(a5.01(b) if Seller, concurrently with its provision of the first Interconnection Study or interconnection agreement tendered to Seller by the T&D Transmission Provider that may give rise to a termination right of SCE under this Section 10.05(a5.01(b), provides Notice to SCE that Seller irrevocably elects to owe to SCE: the amount by which the Aggregate Network Upgrade Costs exceed the Network Upgrades Cap (“Excess Network Upgrade Costs”), provided, (I) with respect to this Section 10.05(a)(ii)(A5.01(b)(ii)(A), and solely for the purpose of calculating Excess Network Upgrade Costs, Aggregate Network Upgrade Costs shall be updated to reflect the latest interconnection agreement (including any amendments or modifications thereto) tendered to Seller; and (II) under no circumstance shall the calculation of Excess Network Upgrade Costs be less than zero dollars ($0), and any costs for transmission services specified in Section 10.05(a)(i)(B5.01(b); Seller’s failure to provide an election pursuant to this Section 10.05(a)(ii5.01(b)(ii) shall be deemed to be an election not to exercise such rights. If Seller elects to pay, without reimbursement, for the Excess Network Upgrade Costs pursuant to this Section 10.05(a5.01(b), in no event shall Seller have any interest in or rights or title to any Network Upgrades or Congestion Revenue Rights (as that term is defined in the CAISO Tariff) in connection with the development of the Project or the delivery of Product to SCE pursuant to this Agreement. Limitation on Sales from the Project after Certain Terminations of this Agreement. If Seller terminates this Agreement as provided in Sections 2.07 or 8.03 (based on a Force Majeure as The Parties agree and acknowledge that there may be an Interconnection Study and interconnection agreement for charging electric energy to which Seller is the Claiming Party), or if SCE terminates this Agreement due to Seller’s Event of Default prior to the Initial Delivery Date, neither Seller nor Seller’s Affiliates may sell, market or deliver any Product (or any component of the Product) associated with or attributable to the Project to a party other than SCE for a period of two (2) years following the Early Termination Date, unless prior to selling, marketing or delivering such Product, or entering into the agreement to sell, market or deliver such Product to a party other than SCE, Seller or Seller’s Affiliates provides SCE with a written offer to sell the Product to SCE which provides SCE the right to select in its sole discretion to purchase such Product on either the terms and conditions materially similar to the terms and conditions contained in this Agreement or the terms and conditions to which the third party agreed, and SCE fails to accept such offer within forty-five (45) days after SCE’s receipt thereof. Neither Seller nor Seller’s Affiliates may sell or transfer the Project or any part thereof, any Interconnection Queue Position(s) (if applicable), or any of Seller’s land rights or interests in the Site so long as the limitations contained in this Section 10.06 apply, unless the transferee agrees to be bound by the terms set forth in this Section 10.06 pursuant to a written agreement approved by SCE. LIMITATIONS Limitation of Remedies, Liability and Damages. EXCEPT AS SET FORTH HEREIN, THERE ARE NO WARRANTIES BY EITHER PARTY UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY WILL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED, UNLESS THE PROVISION IN QUESTION PROVIDES THAT THE EXPRESS REMEDIES ARE IN ADDITION TO OTHER REMEDIES THAT MAY BE AVAILABLE. SUBJECT TO SECTION 12.04 (PROVISIONAL RELIEF), IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR’S LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING THE PROVISIONS OF ARTICLE 13 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. NOTHING IN THIS ARTICLE PREVENTS, OR IS INTENDED TO PREVENT SCE FROM PROCEEDING AGAINST OR EXERCISING ITS RIGHTS WITH RESPECT TO ANY PROJECT SECURITY. No Representation by SCE. Any review by SCE or its consultants of the Project or any aspect thereof, including the design, construction or refurbishment, operation or maintenance of the Project, or otherwise, is solely for SCE’s information. By making such review, SCE makes no representation as to the economic and technical feasibility, operational capability, or reliability of the Project, and Seller shall in no way represent to any third party that any such review by SCE of a separate Interconnection Study and interconnection agreement for discharging electric energy from the Project. If there are two separate studies and agreements for charging and discharging electric energy, including any review the Parties agree that for purposes of Section 5.01(b)(i)(A), the design, construction Aggregate Network Upgrade Costs shall reflect the aggregate maximum cost estimates for the total cost of transmission upgrades or renovation, operationnew transmission facilities that are, or maintenance of the Project may become, reimbursable by SCE, constitutes or any such representation Transmission Provider under the jurisdiction of the CAISO, including costs reimbursed by SCE. Any review, approval, request, or requirement any Transmission Provider under the jurisdiction of material submitted by the CAISO, to Seller shall mean only that such Required Material is acceptable to SCE solely as set forth in the Interconnection Study and/or interconnection agreement, as applicable, for SCE’s internal purposes both charging and benefit, and will not in any way be construed to mean that such material is accurate, suitable for its intended purpose, in compliance with any Applicable Law or other requirement, or endorsed for the benefit of any other party, including Sellerdischarging electric energy. Further, Acknowledgment. Seller acknowledges and agrees that SCE shall have no liability to Seller or any other third party with respect to any Required Material so reviewed, approved, requested or required by SCE or on SCE’s behalf. Seller is solely responsible for the economic and technical feasibility, operational capability, and reliability of the Project. Separation of Functions. Nothing nothing in this Agreement Section 5.01 is intended to abrogate, limit, amend or modify the terms of any other agreement between Seller it and SCE, including any interconnection agreement or tariffagreement, and that no breach under such other agreement shall excuse a Party’s nonperformance under this Agreement, unless the breach of such other agreement is also an Event of Default under this Agreement. Nothing in this Agreement is intended to provide any rights or obligations to either Party with respect to: any relationship between the Parties in which SCE is acting in its capacity as an owner or provider of electrical interconnection, transmission, or distribution service or equipment (including any interconnection agreement or tariff), or electrical interconnection, transmission, or distribution service or equipment. SCE is not responsible or liable in any way for: any delay or failure by Seller to achieve the Initial Delivery Date by the Expected Initial Delivery Date or the Initial Delivery Deadline, as applicable, related to electrical interconnection, transmission, or distribution service or equipment; any costs or damages incurred by Seller as a result thereof or any reduction in payments under this Agreement resulting from any delay in achieving the Initial Delivery Date by the Expected Initial Delivery Date or Initial Delivery Deadline, as applicable, related to electrical interconnection, transmission, or distribution service or equipment; orTesting.