Common use of Schedule and Performance Clause in Contracts

Schedule and Performance. Seller shall deliver the Drawings and Equipment and complete the Work on or before the mutually agreed upon delivery and completion dates set forth in Attachment 2 (“Technical Requirements”) and Attachment 6 (“Scheduled Completion Dates”) (each, a “Scheduled Completion Date”). Based on the Scheduled Completion Dates, Seller will develop a detailed procurement and construction schedule for the Work sufficient to: (a) achieve the key dates set forth in Attachments 2 and 6, (b) support integration with the EPC Contractor’s Project Schedule existing as of the Effective Date (“EPC Schedule”), and (c) develop a monthly cash flow forecast for the Work based on the Schedule of Values. Such detailed schedule shall be provided to Purchaser within three (3) weeks of the Effective Date. The Work is part of a larger Project and Seller acknowledges that timely delivery of its Drawings to other contractors of Purchaser is as critical as delivery of the Equipment itself. Seller shall use as much manpower and work as many hours as necessary to meet the Project Schedule; provided that Seller shall not be obligated to increase the size of its work force by more than * percent (*%) nor add another shift nor work more than * days a week in order to satisfy such obligation to meet the Project Schedule. If Seller satisfies its obligation set forth in the preceding sentence but nevertheless fails to meet the Project Schedule, Seller’s aggregate liability hereunder for such delay shall be the Liquidated Damages, as hereinafter defined. If Purchaser determines that Seller is not on a pace in the Work to meet the Project Schedule, Purchaser may, but shall not be obligated, to direct Seller to reasonably increase the size of its work force by more than * percent (*%), pursuant to the Change Order process in the immediately following paragraph. If Seller is unable to overcome such delay and meet the Project Schedule, whether or not Purchaser directs Seller to increase the size of its work force pursuant to a Change Order, the Parties understand acknowledge and agree that Purchaser’s remedy is limited to the Liquidated Damages described below. Except as specifically permitted under this Contract, and provided Purchaser pays all disputed amounts as and to the extent required under applicable provisions of Article 4 in each Multi-Hearth Furnace Contract, Seller will not halt, suspend nor stop its Work unless so directed by Purchaser, notwithstanding the existence of any disputed claims, and Seller acknowledges that any such unexcused action will constitute a deliberate and material breach of this Contract. Purchaser acknowledges that various work stoppages of up to seven (7) days in the aggregate may be included in the Project Schedule to facilitate overall Project completion and, as long as the overall Project Schedule is maintained, such planned work stoppages do not constitute a breach of this Contract. In a Change Order, Purchaser may direct Seller to work overtime, or reasonably increase the size of its work force (e.g., by * percent (*%), but not by adding another shift or working * days a week), and Seller will provide adequate tools, equipment, labor and supervision to support such Work. The Change Order directing such additional Work will include an increase in the Contract Price to account for such directed change and, if applicable, an equitable adjustment in the Project Schedule. The limitations on working overtime and increasing the size of the work force shall apply to all Multi-Hearth Furnace Contracts in the aggregate (i.e., not more than * percent (*%) under each such Multi-Hearth Furnace Contract). In undertaking to complete the Work within the Project Schedule, Seller has taken into consideration and made reasonable allowances for hindrances and delays incident to such Work growing out of delays in securing material or workmen. No charge or claim for additional compensation shall be made by Seller for such hindrances or delays to the extent caused by events other than Force Majeure or Purchaser-initiated Change Orders. To the extent a delay is caused by a Force Majeure as set forth in Article 20, Seller shall be entitled to an equitable adjustment of the Contract Price, Project Schedule, and/or the other terms of this Contract. If the notice requirements set forth in Article 20 for such an event have not been met, Seller shall not be entitled to an adjustment to the extent such delay or lack of notice materially prejudices Purchaser. Subject to Article 20, Seller expressly assumes all risk of availability of its normal labor requirements and unavailability of such labor shall not be a cause for an excusable delay. Any extension granted or other adjustment in a Contract term shall be memorialized by a Change Order. Partial shipments arriving prior to agreed Delivery dates will be allowed, provided that final Delivery is completed for the relevant item by the indicated dates and subject to the proviso that (i) Purchaser may reasonably reject a partial shipment arriving early if such early Delivery will cause undue interference with other activities at the Site or if there is a lack of appropriate laydown area for accepting the shipment early. Seller shall perform all the Work to achieve Unit Installation for Unit #4 on or before the Unit Installation Completion Date for Unit #4 set forth in Attachment 6 (“Scheduled Completion Dates”) and to achieve scheduled Substantial Completion for Unit #4 on or before the Substantial Completion Date for Unit #4 set forth in Attachment 6.

Schedule and Performance. Seller shall deliver the Drawings and Equipment and complete the Work on or before the mutually agreed upon delivery and completion dates set forth in Attachment 2 (“Technical Requirements”) and Attachment 6 (“Scheduled Completion Dates”) (each, a “Scheduled Completion Date”). Based on the Scheduled Completion Dates, Seller will develop a detailed procurement and construction schedule for the Work sufficient to: (a) achieve the key dates set forth in Attachments 2 and 6, (b) support integration with the EPC Contractor’s Project Schedule existing as of the Effective Date (“EPC Schedule”), and (c) develop a monthly cash flow forecast for the Work based on the Schedule of Values. Such detailed schedule shall be provided to Purchaser within three (3) weeks of the Effective Date. The Work is part of a larger Project and Seller acknowledges that timely delivery of its Drawings to other contractors of Purchaser is as critical as delivery of the Equipment itself. Seller shall use as much manpower and work as many hours as necessary to meet the Project Schedule; provided that Seller shall not be obligated to increase the size of its work force by more than * percent (*%) nor add another shift nor work more than * six (6) days a week in order to satisfy such obligation to meet the Project Schedule. If Seller satisfies its obligation set forth in the preceding sentence but nevertheless fails to meet the Project Schedule, Seller’s aggregate liability hereunder for such delay shall be the Liquidated Damages, as hereinafter defined. If Purchaser determines that Seller is not on a pace in the Work to meet the Project Schedule, Purchaser may, but shall not be obligated, to direct Seller to reasonably increase the size of its work force by more than * percent (*%), pursuant to the Change Order process in the immediately following paragraph. If Seller is unable to overcome such delay and meet the Project Schedule, whether or not Purchaser directs Seller to increase the size of its work force pursuant to a Change Order, the Parties understand acknowledge and agree that Purchaser’s remedy is limited to the Liquidated Damages described below. Except as specifically permitted under this Contract, and provided Purchaser pays all disputed amounts as and to the extent required under applicable provisions of Article 4 in each Multi-Hearth Furnace Contract, Seller will not halt, suspend nor stop its Work unless so directed by Purchaser, notwithstanding the existence of any disputed claims, and Seller acknowledges that any such unexcused action will constitute a deliberate and material breach of this Contract. Purchaser acknowledges that various work stoppages of up to seven (7) days in the aggregate may be included in the Project Schedule to facilitate overall Project completion and, as long as the overall Project Schedule is maintained, such planned work stoppages do not constitute a breach of this Contract. In a Change Order, Purchaser may direct Seller to work overtime, or reasonably increase the size of its work force (e.g., by * percent (*%), but not by adding another shift or working * days a week), and Seller will provide adequate tools, equipment, labor and supervision to support such Work. The Change Order directing such additional Work will include an increase in the Contract Price to account for such directed change and, if applicable, an equitable adjustment in the Project Schedule. The limitations on working overtime and increasing the size of the work force shall apply to all Multi-Hearth Furnace Contracts in the aggregate (i.e., not more than * percent (*%) under each such Multi-Hearth Furnace Contract). In undertaking to complete the Work within the Project Schedule, Seller has taken into consideration and made reasonable allowances for hindrances and delays incident to such Work growing out of delays in securing material or workmen. No charge or claim for additional compensation shall be made by Seller for such hindrances or delays to the extent caused by events other than Force Majeure or Purchaser-initiated Change Orders. To the extent a delay is caused by a Force Majeure as set forth in Article 20, Seller shall be entitled to an equitable adjustment of the Contract Price, Project Schedule, and/or the other terms of this Contract. If the notice requirements set forth in Article 20 for such an event have not been met, Seller shall not be entitled to an adjustment to the extent such delay or lack of notice materially prejudices Purchaser. Subject to Article 20, Seller expressly assumes all risk of availability of its normal labor requirements and unavailability of such labor shall not be a cause for an excusable delay. Any extension granted or other adjustment in a Contract term shall be memorialized by a Change Order. Partial shipments arriving prior to agreed Delivery dates will be allowed, provided that final Delivery is completed for the relevant item by the indicated dates and subject to the proviso that (i) Purchaser may reasonably reject a partial shipment arriving early if such early Delivery will cause undue interference with other activities at the Site or if there is a lack of appropriate laydown area for accepting the shipment early. Seller shall perform all the Work to achieve Unit Installation for Unit #4 3 on or before the Unit Installation Completion Date for Unit #4 3 set forth in Attachment 6 (“Scheduled Completion Dates”) and to achieve scheduled Substantial Completion for Unit #4 3 on or before the Substantial Completion Date for Unit #4 3 set forth in Attachment 6.

Schedule and Performance. Seller shall deliver the Drawings and Equipment and complete the Work on or before the mutually agreed upon delivery and completion dates set forth in Attachment 2 (“Technical Requirements”) and Attachment 6 (“Scheduled Completion Dates”) (each, a “Scheduled Completion Date”). Based on the Scheduled Completion Dates, Seller will develop a detailed procurement and construction schedule for the Work sufficient to: (a) achieve the key dates set forth in Attachments 2 and 6, (b) support integration with the EPC Contractor’s Project Schedule existing as of the Effective Date (“EPC Schedule”), and (c) develop a monthly cash flow forecast for the Work based on the Schedule of Values. Such detailed schedule shall be provided to Purchaser within three (3) weeks of the Effective Date. The Work is part of a larger Project and Seller acknowledges that timely delivery of its Drawings to other contractors of Purchaser is as critical as delivery of the Equipment itself. Seller shall use as much manpower and work as many hours as necessary to meet the Project Schedule; provided that Seller shall not be obligated to increase the size of its work force by more than * percent (*%) nor add another shift nor work more than * days a week in order to satisfy such obligation to meet the Project Schedule. If Seller satisfies its obligation set forth in the preceding sentence but nevertheless fails to meet the Project Schedule, Seller’s aggregate liability hereunder for such delay shall be the Liquidated Damages, as hereinafter defined. If Purchaser determines that Seller is not on a pace in the Work to meet the Project Schedule, Purchaser may, but shall not be obligated, to direct Seller to reasonably increase the size of its work force by more than * percent (*%), pursuant to the Change Order process in the immediately following paragraph. If Seller is unable to overcome such delay and meet the Project Schedule, whether or not Purchaser directs Seller to increase the size of its work force pursuant to a Change Order, the Parties understand acknowledge and agree that Purchaser’s remedy is limited to the Liquidated Damages described below. Except as specifically permitted under this Contract, and provided Purchaser pays all disputed amounts as and to the extent required under applicable provisions of Article 4 in each Multi-Hearth Furnace Contract, Seller will not halt, suspend nor stop its Work unless so directed by Purchaser, notwithstanding the existence of any disputed claims, and Seller acknowledges that any such unexcused action will constitute a deliberate and material breach of this Contract. Purchaser acknowledges that various work stoppages of up to seven (7) days in the aggregate may be included in the Project Schedule to facilitate overall Project completion and, as long as the overall Project Schedule is maintained, such planned work stoppages do not constitute a breach of this Contract. In a Change Order, Purchaser may direct Seller to work overtime, or reasonably increase the size of its work force (e.g., by * percent (*%), but not by adding another shift or working * days a week), and Seller will provide adequate tools, equipment, labor and supervision to support such Work. The Change Order directing such additional Work will include an increase in the Contract Price to account for such directed change and, if applicable, an equitable adjustment in the Project Schedule. The limitations on working overtime and increasing the size of the work force shall apply to all Multi-Hearth Furnace Contracts in the aggregate (i.e., not more than * percent (*%) under each such Multi-Hearth Furnace Contract). In undertaking to complete the Work within the Project Schedule, Seller has taken into consideration and made reasonable allowances for hindrances and delays incident to such Work growing out of delays in securing material or workmen. No charge or claim for additional compensation shall be made by Seller for such hindrances or delays to the extent caused by events other than Force Majeure or Purchaser-initiated Change Orders. To the extent a delay is caused by a Force Majeure as set forth in Article 20, Seller shall be entitled to an equitable adjustment of the Contract Price, Project Schedule, and/or the other terms of this Contract. If the notice requirements set forth in Article 20 for such an event have not been met, Seller shall not be entitled to an adjustment to the extent such delay or lack of notice materially prejudices Purchaser. Subject to Article 20, Seller expressly assumes all risk of availability of its normal labor requirements and unavailability of such labor shall not be a cause for an excusable delay. Any extension granted or other adjustment in a Contract term shall be memorialized by a Change Order. Partial shipments arriving prior to agreed Delivery dates will be allowed, provided that final Delivery is completed for the relevant item by the indicated dates and subject to the proviso that (i) Purchaser may reasonably reject a partial shipment arriving early if such early Delivery will cause undue interference with other activities at the Site or if there is a lack of appropriate laydown area for accepting the shipment early. Seller shall perform all the Work to achieve Unit Installation for Unit #4 2 on or before the Unit Installation Completion Date for Unit #4 2 set forth in Attachment 6 (“Scheduled Completion Dates”) and to achieve scheduled Substantial Completion for Unit #4 2 on or before the Substantial Completion Date for Unit #4 2 set forth in Attachment 6.

Schedule and Performance. Seller shall deliver the Drawings and Equipment and complete the Work on or before the mutually agreed upon delivery and completion dates set forth in Attachment 2 (“Technical Requirements”) and Attachment 6 (“Scheduled Completion Dates”) (each, a “Scheduled Completion Date”). Based on the Scheduled Completion Dates, Seller will develop a detailed procurement and construction schedule for the Work sufficient to: (a) achieve the key dates set forth in Attachments 2 and 6, (b) support integration with the EPC Contractor’s Project Schedule existing as of the Effective Date (“EPC Schedule”), and (c) develop a monthly cash flow forecast for the Work based on the Schedule of Values. Such detailed schedule shall be provided to Purchaser within three (3) weeks of the Effective Date. The Work is part of a larger Project and Seller acknowledges that timely delivery of its Drawings to other contractors of Purchaser is as critical as delivery of the Equipment itself. Seller shall use as much manpower and work as many hours as necessary to meet the Project Schedule; provided that Seller shall not be obligated to increase the size of its work force by more than * ten percent (*%) nor add another shift nor work more than * six (*) days a week in order to satisfy such obligation to meet the Project Schedule. If Seller satisfies its obligation set forth in the preceding sentence but nevertheless fails to meet the Project Schedule, Seller’s aggregate liability hereunder for such delay shall be the Liquidated Damages, as hereinafter defined. If Purchaser determines that Seller is not on a pace in the Work to meet the Project Schedule, Purchaser may, but shall not be obligated, to direct Seller to reasonably increase the size of its work force by more than * percent (*%), pursuant to the Change Order process in the immediately following paragraph. If Seller is unable to overcome such delay and meet the Project Schedule, whether or not Purchaser directs Seller to increase the size of its work force pursuant to a Change Order, the Parties understand acknowledge and agree that Purchaser’s 's remedy is limited to the Liquidated Damages described below. Except as specifically permitted under this Contract, and provided Purchaser pays all disputed amounts as and to the extent required under applicable provisions of Article 4 in each Multi-Hearth Furnace Contract, Seller will not halt, suspend nor stop its Work unless so directed by Purchaser, notwithstanding the existence of any disputed claims, and Seller acknowledges that any such unexcused action will constitute a deliberate and material breach of this Contract. Purchaser acknowledges that various work stoppages of up to seven (7) days in the aggregate may be included in the Project Schedule to facilitate overall Project completion and, as long as the overall Project Schedule is maintained, such planned work stoppages do not constitute a breach of this Contract. In a Change Order, Purchaser may direct Seller to work overtime, or reasonably increase the size of its work force (e.g., by * percent (*%), but not by adding another shift or working * days a week), and Seller will provide adequate tools, equipment, labor and supervision to support such Work. The Change Order directing such additional Work will include an increase in the Contract Price to account for such directed change and, if applicable, an equitable adjustment in the Project Schedule. The limitations on working overtime and increasing the size of the work force shall apply to all Multi-Hearth Furnace Contracts in the aggregate (i.e., not more than * percent (*%) under each such Multi-Hearth Furnace Contract). In undertaking to complete the Work within the Project Schedule, Seller has taken into consideration and made reasonable allowances for hindrances and delays incident to such Work growing out of delays in securing material or workmen. No charge or claim for additional compensation shall be made by Seller for such hindrances or delays to the extent caused by events other than Force Majeure or Purchaser-initiated Change Orders. To the extent a delay is caused by a Force Majeure as set forth in Article 20, Seller shall be entitled to an equitable adjustment of the Contract Price, Project Schedule, and/or the other terms of this Contract. If the notice requirements set forth in Article 20 for such an event have not been met, Seller shall not be entitled to an adjustment to the extent such delay or lack of notice materially prejudices Purchaser. Subject to Article 20, Seller expressly assumes all risk of availability of its normal labor requirements and unavailability of such labor shall not be a cause for an excusable delay. Any extension granted or other adjustment in a Contract term shall be memorialized by a Change Order. Partial shipments arriving prior to agreed Delivery dates will be allowed, provided that final Delivery is completed for the relevant item by the indicated dates and subject to the proviso that (i) Purchaser may reasonably reject a partial shipment arriving early if such early Delivery will cause undue interference with other activities at the Site or if there is a lack of appropriate laydown area for accepting the shipment early. Seller shall perform all the Work to achieve Unit Installation for Unit #4 1 on or before the Unit Installation Completion Date for Unit #4 1 set forth in Attachment 6 (“Scheduled Completion Dates”) and to achieve scheduled Substantial Completion for Unit #4 1 on or before the Substantial Completion Date for Unit #4 1 set forth in Attachment 6.

Schedule and Performance. Seller shall deliver the Drawings and Equipment and complete the Work on or before the mutually agreed upon delivery and completion dates set forth in Attachment 2 (“Technical Requirements”) and Attachment 6 (“Scheduled Completion Dates”) (each, a “Scheduled Completion Date”). Based on the Scheduled Completion Dates, Seller will develop a detailed procurement and construction schedule for the Work sufficient to: (a) achieve the key dates set forth in Attachments 2 and 6, (b) support integration with the EPC Contractor’s Project Schedule existing as of the Effective Date (“EPC Schedule”), and (c) develop a monthly cash flow forecast for the Work based on the Schedule of Values. Such detailed schedule shall be provided to Purchaser within three (3) weeks of the Effective Date. The Work is part of a larger Project and Seller acknowledges that timely delivery of its Drawings to other contractors of Purchaser is as critical as delivery of the Equipment itself. Seller shall use as much manpower and work as many hours as necessary to meet the Project Schedule; provided that Seller shall not be obligated to increase the size of its work force by more than * ten percent (*%) nor add another shift nor work more than * six (*) days a week in order to satisfy such obligation to meet the Project Schedule. If Seller satisfies its obligation set forth in the preceding sentence but nevertheless fails to meet the Project Schedule, Seller’s aggregate liability hereunder for such delay shall be the Liquidated Damages, as hereinafter defined. If Purchaser determines that Seller is not on a pace in the Work to meet the Project Schedule, Purchaser may, but shall not be obligated, to direct Seller to reasonably increase the size of its work force by more than * percent (*%), pursuant to the Change Order process in the immediately following paragraph. If Seller is unable to overcome such delay and meet the Project Schedule, whether or not Purchaser directs Seller to increase the size of its work force pursuant to a Change Order, the Parties understand acknowledge and agree that Purchaser’s remedy is limited to the Liquidated Damages described below. Except as specifically permitted under this Contract, and provided Purchaser pays all disputed amounts as and to the extent required under applicable provisions of Article 4 in each Multi-Hearth Furnace Contract, Seller will not halt, suspend nor stop its Work unless so directed by Purchaser, notwithstanding the existence of any disputed claims, and Seller acknowledges that any such unexcused action will constitute a deliberate and material breach of this Contract. Purchaser acknowledges that various work stoppages of up to seven (7) days in the aggregate may be included in the Project Schedule to facilitate overall Project completion and, as long as the overall Project Schedule is maintained, such planned work stoppages do not constitute a breach of this Contract. In a Change Order, Purchaser may direct Seller to work overtime, or reasonably increase the size of its work force (e.g., by * percent (*%), but not by adding another shift or working * days a week), and Seller will provide adequate tools, equipment, labor and supervision to support such Work. The Change Order directing such additional Work will include an increase in the Contract Price to account for such directed change and, if applicable, an equitable adjustment in the Project Schedule. The limitations on working overtime and increasing the size of the work force shall apply to all Multi-Hearth Furnace Contracts in the aggregate (i.e., not more than * percent (*%) under each such Multi-Hearth Furnace Contract). In undertaking to complete the Work within the Project Schedule, Seller has taken into consideration and made reasonable allowances for hindrances and delays incident to such Work growing out of delays in securing material or workmen. No charge or claim for additional compensation shall be made by Seller for such hindrances or delays to the extent caused by events other than Force Majeure or Purchaser-initiated Change Orders. To the extent a delay is caused by a Force Majeure as set forth in Article 20, Seller shall be entitled to an equitable adjustment of the Contract Price, Project Schedule, and/or the other terms of this Contract. If the notice requirements set forth in Article 20 for such an event have not been met, Seller shall not be entitled to an adjustment to the extent such delay or lack of notice materially prejudices Purchaser. Subject to Article 20, Seller expressly assumes all risk of availability of its normal labor requirements and unavailability of such labor shall not be a cause for an excusable delay. Any extension granted or other adjustment in a Contract term shall be memorialized by a Change Order. Partial shipments arriving prior to agreed Delivery dates will be allowed, provided that final Delivery is completed for the relevant item by the indicated dates and subject to the proviso that (i) Purchaser may reasonably reject a partial shipment arriving early if such early Delivery will cause undue interference with other activities at the Site or if there is a lack of appropriate laydown area for accepting the shipment early. Seller shall perform all the Work to achieve Unit Installation for Unit #4 1 on or before the Unit Installation Completion Date for Unit #4 1 set forth in Attachment 6 (“Scheduled Completion Dates”) and to achieve scheduled Substantial Completion for Unit #4 1 on or before the Substantial Completion Date for Unit #4 1 set forth in Attachment 6.