Seller Performance Security. (a) As a condition to the occurrence of the Effective Date, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers in the form attached hereto as Appendix E, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests of the Qualified Issuer, in the aggregate amount of $2,500,000, which shall secure all of Seller’s obligations to pay liquidated damages under Sections 3.7(a) and 3.7(b) (“Project Development Security”). From and after the Effective Date, Seller shall maintain such Project Development Security until Seller posts the Delivery Term Security pursuant to Section 5.9(b) below, or until Buyer is required to return the Project Development Security under Section 5.9(c) below. (b) As a condition to the achievement of Commercial Operation, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers, or guarantees from a Qualified Guarantor, or a combination of both, in the form attached hereto as Appendix G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests of the Qualified Guarantor, as applicable, and in the aggregate amount of $8,000,000, which shall guarantee Seller’s obligations under this Agreement, following the Commercial Operation Date (“Delivery Term Security”); provided that Seller may elect to apply the Project Development Security toward the Delivery Term Security. From and after the Commercial Operation Date, Seller shall maintain such Delivery Term Security until the end of the Agreement Term or until Buyer is required to return the Delivery Term Security to Seller as set forth in Section 5.9(d) below, provided that Seller may, from time to time, replace a letter of credit with a guarantee and vice versa so long as such replacement letter of credit or guarantee shall comply with the applicable provisions of this Agreement and the aggregate amount required above is maintained. (c) If after the Commercial Operation Date no damages or other amounts are due and owing to Buyer under this Agreement, or if this Agreement terminates prior to the occurrence of the Commercial Operation Date while the Project Development Security is outstanding, then Seller shall no longer be required to maintain the Project Development Security, and Buyer shall return to Seller the Project Development Security, less any amounts drawn by Buyer as permitted under the terms of this Agreement (including under Section 2.4(h)). The Project Development Security (or portion thereof) due to Seller shall be returned to Seller within three (3) Business Days after (i) Seller’s provision of the Delivery Term Security, unless Seller elects to apply the Project Development Security toward the Delivery Term Security, or
Appears in 1 contract
Samples: Power Purchase Agreement
Seller Performance Security.
(a) As a condition to the occurrence of the Effective Date, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers in the form attached hereto as Appendix E, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests of the Qualified Issuer, in the aggregate amount of sixteen million dollars ($2,500,00016,000,000), which shall secure all of Seller’s obligations to pay liquidated damages under Sections 3.7(a) and 3.7(b) Section 3.7 (“Project Development Security”). From and after the Effective Date, Seller shall maintain provide such Project Development Security until Seller posts the Delivery Term Security pursuant to Section 5.9(b) below, or until Buyer is required to return the Project Development Security under Section 5.9(c) below.below. In the event that at any time any draws on the Project Development Security shall reduce the available amount thereof below eight million dollars ($8,000,000), Seller shall promptly, but in no event later than five (5) Business Days, replenish the amount thereof to sixteen million dollars ($16,000,000).
(b) As a condition to the achievement of Delivery Commencement or Commercial Operation, as applicable, for each Facility, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers, or guarantees from a Qualified Guarantor, or a combination of both, in the form attached hereto as Appendix G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests of the Qualified Guarantor, as applicable, and in the aggregate amount equal to the product of (i) the Facility Net Capacity of such Facility, expressed in MW, and (ii) (A) $8,000,000475,000 per MW for the first 50 MW of Project Net Capacity, (B) $300,000 per MW for the 51st to 100th MW of Project Net Capacity, and (C) $200,000 per MW for Project Net Capacity in excess of 100 MW, which shall guarantee Seller’s obligations under this Agreement, Agreement following the Delivery Commencement or Commercial Operation Date Date, as applicable, (“Delivery Term Security”); provided provided, however, that Seller may elect to apply the total aggregate Delivery Term Security required for all Facilities hereunder shall not exceed forty-eight million seven hundred fifty thousand dollars ($48,750,000) in any event. For example, if the Project Development Security toward the Net Capacity is 40 MW with a Delivery Term SecuritySecurity of $19,000,000 (40 MW x $475,000/MW), and then an additional Existing Facility with a net capacity of 15 MW will achieve its Delivery Commencement Date (for a new Project Net Capacity of 55 MW), the additional Delivery Term Security required for such Facility will be equal to $6,250,000 (10 MW x $475,000/MW + 5 MW x $300,000/MW = $4,750,000 + $1,500,000 = $6,250,000); the total Delivery Term Security for the Project Net Capacity of 55 MW in this example is $25,250,000 ($19,000,000 + $6,250,000). From and after the Delivery Commencement Date or Commercial Operation Date, as applicable, for a Facility, Seller shall maintain such the corresponding Delivery Term Security until the end of the Agreement Term or until Buyer is required to return the Delivery Term Security to Seller as set forth in Section 5.9(d) below, provided that Seller may, from time to time, replace a guarantee with a letter of credit with a guarantee and vice versa so long as such replacement letter of credit or guarantee shall comply with the applicable provisions of this Agreement and the aggregate amount required above is maintained.maintained.
(c) If after Upon the Commercial Operation Date no damages earliest to occur of (i) the Project Net Capacity is increased to an amount that is equal to or other amounts are due and owing to Buyer under this Agreementgreater than the Third Development Period Minimum Capacity, or if (ii) this Agreement terminates prior to the occurrence of the Commercial Operation Date is terminated while the Project Development Security is outstanding, then or (iii) December 31, 2024, Seller shall no longer be required to maintain the Project Development Security, and Buyer shall return to Seller the Project Development Security, less any and all amounts drawn by Buyer as permitted under the terms of this Agreement (including under Section 2.4(h))Agreement. The Project Development Security (or portion thereof) due to Seller after any and all amounts are drawn by Buyer as permitted under the terms of this Agreement shall be returned to Seller within three (3) Business Days after the first event described in clauses (i) Seller’s provision through (iii) of this Section 5.9(c) occurs.
(d) Buyer shall return the unused portion of Delivery Term Security, unless if any, to Seller elects promptly after the following have occurred: (i) the Agreement Term has ended, and (ii) all obligations of Seller arising under this Agreement are paid (whether directly or indirectly such as through set-off or netting) or performed in full.
(e) Seller shall notify Buyer of the occurrence of a Downgrade Event within five (5) Business Days after obtaining knowledge of the occurrence of such event. If at any time there shall occur a Downgrade Event, then Buyer may require that Seller replace the Performance Security from the Person that has suffered the Downgrade Event within ten (10) Business Days after notice from Buyer to apply Seller requesting such replacement Performance Security. In the Project Development event that such replacement Performance Security toward is not so provided by Seller, Buyer shall have the Delivery Term right to demand payment of the full amount of such Performance Security and retain such amount in order to secure Seller’s obligations under this Section 5.9 and other applicable provisions of this Agreement; provided that if and to the extent such amount shall be in excess of the amounts of such obligations of Seller, Buyer shall refund the excess to Seller promptly after all such obligations of Seller under this Agreement shall have been paid or performed.
(f) If any Performance Security is in the form of a letter of credit, then Seller shall either provide, or cause to be provided, a replacement letter of credit (from a Qualified Issuer or Qualified Guarantor, as applicable) in the required amount set forth in this Section 5.9 within ten (10) Business Days after the earlier of the date that Seller becomes aware, or Buyer notifies Seller of the occurrence of any one of the following events:
(i) the failure of the issuer of the letter of credit to renew such letter of credit thirty (30) Business Days prior to the expiration of such letter of credit;
(ii) the failure of the issuer of the letter of credit to immediately honor Buyer’s properly documented request to draw on such letter of credit; or
(iii) the issuer of the letter of credit becomes Bankrupt.
(g) If any Performance Security is in the form of a guarantee, then Seller shall either provide, or cause to be provided, a replacement letter of credit or guarantee (from a Qualified Issuer or Qualified Guarantor, as applicable) in the required amount set forth in this Section 5.9 within ten (10) Business Days after the earlier of the date that Seller becomes aware, or Buyer notifies Seller, of the occurrence of any one of the following events:
(i) the failure of the guarantor to make a payment thereunder immediately following Buyer’s properly documented claim made pursuant to the guarantee in accordance with its terms;
(ii) any representation or warranty made by the guarantor in connection with this Agreement is false or misleading in any material respect when made or when deemed made or repeated;
(iii) the guarantor becomes Bankrupt;
(iv) the guarantee fails to be in full force and effect in accordance with the terms of this Agreement prior to the satisfaction of all obligations of Seller under this Agreement; or
(v) the guarantor repudiates, disaffirms, disclaims, or rejects, in whole or in part, or challenges the validity of, its guarantee.
(h) In the event that a replacement letter of credit is not delivered in accordance with Section 5.9(f) or a replacement guarantee or letter of credit is not delivered in accordance with Section 5.9(g), Buyer shall have the right to demand payment of the full amount of the letter of credit or the guarantee, as applicable, and retain such amount in order to secure Seller’s obligations under this Section 5.9 and other applicable provisions of this Agreement; provided that, if and to the extent such amount shall be in excess of the amounts of such obligations of Seller, Buyer shall refund the excess to Seller promptly after all such obligations of Seller under this Agreement shall have been paid of performed.
(i) Seller shall, from time to time as requested by Buyer, execute, acknowledge, record, register, deliver and file all such notices, statements, instruments, and other documents as may be necessary or advisable to render fully valid, perfected, and enforceable under all Requirements of Law the Performance Security and the rights, Liens, and priorities of Buyer with respect to such Performance Security.
(j) Except as otherwise provided in this Agreement, orthe Performance Security: (i) constitutes security for, but is not a limitation of, Seller’s obligations under this Agreement, and (ii) shall not be Buyer’s exclusive remedy against Seller for Seller’s failure to perform in accordance with this Agreement.
Appears in 1 contract
Samples: Power Purchase Agreement (Ormat Technologies, Inc.)
Seller Performance Security.
(a) As a condition to the occurrence of the Effective Date, Seller shall have furnished deliver to Buyer one or more letters of credit issued by Qualified Issuers Issuers, surety bonds, cash, or guarantees from Qualified Guarantors, or a combination thereof, in the form forms attached hereto as Appendix EAppendices E or G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests of the Qualified Issuerapplicable, in the aggregate amount of One Million Dollars ($2,500,0001,000,000), which amount shall secure all increase to Two Million Dollars ($2,000,000) upon the first to occur of (i) two hundred forty (240) days after the Effective Date, or (ii) the date upon which Seller provides its Early COD Notice, if any, which security shall guarantee Seller’s obligations to pay liquidated damages under Sections 3.7(a) and 3.7(b) this Agreement (collectively, the “Project Development Security”). From and after the Effective Date, Seller shall maintain such Project Development Security until Seller posts the Delivery Term Security pursuant to Section 5.9(b) below), or until Buyer is required to return the Project Development Security under Section 5.9(c) below.
(b) As a condition to the achievement of the Commercial OperationOperation Date, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers, surety bonds, cash, or guarantees from a Qualified GuarantorGuarantors, or a combination of boththereof, in the form forms attached hereto as Appendix Appendices E or G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests of the Qualified Guarantor, as applicable, and (i) in the aggregate an amount of equal to Two Million Five Hundred Thousand Dollars ($8,000,0002,500,000), which shall guarantee Seller’s obligations under this Agreement, following Agreement (the Commercial Operation Date (“Delivery Term Security”); provided that . Seller may elect to apply the Project Development Security toward the Delivery Term Security. From and after the Commercial Operation Date, Seller shall maintain such Delivery Term Security until the end of the Agreement Term or until Buyer is required to return the Delivery Term Security to Seller as set forth in Section 5.9(d5.9(e) below, provided that Seller may, from time to time, replace a letter of credit with a guarantee and vice versa so long as such replacement letter of credit or guarantee shall comply with the applicable provisions of this Agreement and the aggregate amount required above is maintained.below.
(c) If after If, upon the Commercial Operation Date Date, no damages or other amounts are due and owing to Buyer under this Agreement, or if this Agreement terminates prior to the occurrence of the Commercial Operation Date while the Project Development Security is outstanding, then and if Seller shall no longer be required does not elect to maintain apply the Project Development Security toward the Delivery Term Security, and then Buyer shall return to Seller the Project Development Security, less any amounts drawn by Buyer as permitted under the terms of in accordance with this Agreement (including under Section 2.4(h))Agreement. The Project Development Security (or portion any portions thereof) due to Seller shall be returned to Seller within three ten (310) Business Days after after
(i) Seller’s provision of the Delivery Term Security, unless or (ii) the effective date of such early termination, so long as damages are no longer due and owing to Buyer.
(d) Buyer may draw on the Performance Security (i) at any time following the accrual of Daily Delay Damages or GEP Shortfall Liquidated Damages hereunder in the amount of such Daily Delay Damages or GEP Shortfall Liquidated Damages, as applicable, or (ii) upon Seller’s failure to make any payment due to Buyer hereunder in the amount of such unpaid payment; provided, that, in the case of a draw made under clause (ii), any such amount shall have been invoiced to Seller, shall be past due, and shall not be the subject of a good faith dispute between the Parties. Promptly, and in no event more than fifteen (15) days following any draw by Buyer on the Performance Security, Seller elects shall replenish the amount drawn such that the Performance Security is restored to apply the Project Development Security toward amount set forth in Section 5.9(a) or Section 5.9(b), as applicable.
(e) Buyer shall return the unused portion of Delivery Term Security, orif any, to Seller promptly as follows: (i) following the expiration or termination of the Agreement Term, including the exercise by Buyer of the Right of First Offer, and (ii) upon all of the obligations of Seller arising under this Agreement being paid (whether directly or indirectly such as through set-off or netting) or performed in full.
(f) Seller shall notify Buyer of the occurrence of a Downgrade Event within five (5) Business Days after obtaining knowledge of the occurrence of such event. If at any time there shall occur a Downgrade Event, then Buyer may require that Seller replace the Performance Security from the Person that has suffered the Downgrade Event within ten (10) Business Days after notice from Buyer to Seller requesting such replacement Performance Security.
(g) If any Performance Security is in the form of a letter of credit, then Seller shall provide, or cause to be provided, a replacement letter of credit or guarantee (from a Qualified Issuer or Qualified Guarantor, as applicable) or cash in the required amount set forth in this Section 5.9 within ten (10) Business Days after the earlier of the date that Seller becomes aware, or Buyer notifies Seller of the occurrence of any one of the following events:
(i) the failure of the issuer of the letter of credit to renew such letter of credit thirty (30) Business Days prior to the expiration of such letter of credit;
(ii) the failure of the issuer of the letter of credit to immediately honor Buyer’s properly documented request to draw on such letter of credit; or
(iii) the issuer of the letter of credit becomes Bankrupt.
(h) If any Performance Security is in the form of a guarantee, then Seller shall provide, or cause to be provided, a replacement letter of credit or guarantee (from a Qualified Issuer or Qualified Guarantor, as applicable) or cash in the required amount set forth in this Section 5.9 within ten (10) Business Days after the earlier of the date that Seller becomes aware, or Buyer notifies Seller, of the occurrence of any one of the following events:
(i) the failure of the guarantor to make a payment thereunder immediately following Buyer’s properly documented claim made pursuant to the guarantee in accordance with its terms;
(ii) any representation or warranty made by the guarantor in connection with this Agreement or the guarantee is false or misleading in any material respect when made or when deemed made or repeated;
(iii) the guarantor becomes Bankrupt;
(iv) the guarantee fails to be in full force and effect in accordance with the terms of this Agreement prior to the satisfaction of all obligations of Seller under this Agreement; or
(v) the guarantor repudiates, disaffirms, disclaims, or rejects, in whole or in part, or challenges the validity of, its guarantee.
(i) Seller shall, from time to time as requested by Buyer, execute, acknowledge, record, register, deliver and file all such notices, statements, instruments and other documents as may be necessary or advisable to render fully valid and enforceable under all Requirements of Law the Performance Security and the rights of Buyer with respect to such Performance Security.
(j) Notwithstanding the other provisions of this Agreement, the Performance Security: (i) constitutes security for, but is not a limitation of, Seller’s obligations under this Agreement, and (ii) shall not be Buyer’s exclusive remedy against Seller for Seller’s failure to perform in accordance with this Agreement.
Appears in 1 contract
Samples: Power Sales Agreement
Seller Performance Security.
(a) As a condition to the occurrence of the Effective Date, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers Issuers, cash, or guarantees from Qualified Guarantors, or a combination of the three, in the form attached hereto as Appendix EAppendices E or G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests of the Qualified Issuerapplicable, and in the aggregate amount of $2,500,000500,000, which shall secure all of guarantee Seller’s obligations to pay liquidated damages under Sections 3.7(a) and 3.7(b) this Agreement (“Project Development Security”). From and after the Effective Date, Seller shall maintain such Project Development Security until Seller posts the Delivery Term Between Initial Synchronization and Final COD Security pursuant to Section 5.9(b) below, or until Buyer is required to return the Project Development Security under Section 5.9(c5.9(d) below.below.
(b) As a condition to the achievement of Commercial Operationperiod between Initial Synchronization and COD, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers, cash, or guarantees from Qualified Guarantors, or a combination of the three, in the form attached hereto as Appendices E or G, as applicable, and in the aggregate amount of $1,000,000, which shall guarantee Seller’s obligations under this Agreement (“Between Initial Synchronization and Final COD Security”); provided that Seller may elect to apply the Project Development Security toward the Between Initial Synchronization and Final COD Security. From and after the period between Initial Synchronization and COD, Seller shall maintain such Between Initial Synchronization and Final COD Security until Seller posts the Delivery Term Security pursuant to Section 5.9(c) below, or until Buyer is required to return the Between Initial Synchronization and Final COD Security under Section 5.9(d) below.
(c) As a condition to the achievement of the Commercial Operation Date, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers, cash, or guarantees from a Qualified Guarantor, or a combination of boththe three, in the form attached hereto as Appendix Appendices E or G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests of the Qualified Guarantor, as applicable, and in the aggregate amount of $8,000,0001,500,000, which shall guarantee Seller’s obligations under this Agreement, following the Commercial Operation Date Agreement (“Delivery Term Security”); provided that Seller may elect to apply the Project Development Security or the Between Initial Synchronization and Final COD Security toward the Delivery Term Security. From and after the Commercial Operation Date, Seller shall maintain such Delivery Term Security until the end of the Agreement Term or until Buyer is required to return the Delivery Term Security to Seller as set forth in Section 5.9(d5.9(f) below, provided that Seller may, from time to time, replace a letter of credit with a guarantee and vice versa so long as such replacement letter of credit or guarantee shall comply with the applicable provisions of this Agreement and the aggregate amount required above is maintained..
(cd) If after upon the Commercial Operation Date no damages or other amounts are due and owing to Buyer under this Agreement, or if this Agreement terminates prior to the occurrence of the Commercial Operation Date while the Project Development Security or Between Initial Synchronization and Final COD Security is outstanding, then Seller shall no longer be required to maintain the Project Development Security and Between Initial Synchronization and Final COD Security, and Buyer shall return to Seller the Project Development Security and Between Initial Synchronization and Final COD Security, less any amounts drawn by Buyer as permitted under the terms of this Agreement (including under Section 2.4(h))Agreement. The Project Development Security and Between Initial Synchronization and Final COD Security (or portion portions thereof) due to Seller shall be returned to Seller within three ten (310) Business Days after (i) Seller’s provision of the Delivery Term Security, unless Seller elects to apply the Project Development Security or Between Initial Synchronization and Final COD Security toward the Delivery Term Security, oror (ii) the effective date of such earlier termination when damages are no longer due and owing to Buyer.
(e) If Seller fails to pay any amounts due to Buyer hereunder, Buyer may draw on the Performance Security in an amount equal to the amount unpaid; provided, that any such amount shall have been invoiced to Seller, be past due, and not be the subject of a good faith dispute.
(f) Buyer shall return the unused portion of Delivery Term Security, if any, to Seller promptly after the following have occurred: (i) the Agreement Term has ended, and (ii) all obligations of Seller arising under this Agreement are paid (whether directly or indirectly such as through set-off or netting) or performed in full.
(g) Seller shall notify Buyer of the occurrence of a Downgrade Event within five (5) Business Days after obtaining knowledge of the occurrence of such event. If at any time there shall occur a Downgrade Event, then Buyer may require that Seller replace the Performance Security from the Person that has suffered the Downgrade Event within ten (10) Business Days after notice from Buyer to Seller requesting such replacement Performance Security.
(h) If any Performance Security is in the form of a letter of credit, then Seller shall either provide, or cause to be provided, a replacement letter of credit or guarantee (from a Qualified Issuer or Qualified Guarantor, as applicable) or cash in the required amount set forth in this Section 5.9 within ten (10) Business Days after the earlier of the date that Seller becomes aware, or Buyer notifies Seller of the occurrence of any one of the following events:
(i) the failure of the issuer of the letter of credit to renew such letter of credit thirty (30) Business Days prior to the expiration of such letter of credit;
(ii) the failure of the issuer of the letter of credit to immediately honor Buyer’s properly documented request to draw on such letter of credit; or
(iii) the issuer of the letter of credit becomes Bankrupt.
(i) If any Performance Security is in the form of a guarantee, then Seller shall either provide, or cause to be provided, a replacement letter of credit or guarantee (from a Qualified Issuer or Qualified Guarantor, as applicable) or cash in the required amount set forth in this Section 5.9 within ten (10) Business Days after the earlier of the date that Seller becomes aware, or Buyer notifies Seller, of the occurrence of any one of the following events:
(i) the failure of the guarantor to make a payment thereunder immediately following Buyer’s properly documented claim made pursuant to the guarantee in accordance with its terms;
(ii) any representation or warranty made by the guarantor in connection with this Agreement is false or misleading in any material respect when made or when deemed made or repeated;
(iii) the guarantor becomes Bankrupt;
(iv) the guarantee fails to be in full force and effect in accordance with the terms of this Agreement prior to the satisfaction of all obligations of Seller under this Agreement; or
(v) the guarantor repudiates, disaffirms, disclaims, or rejects, in whole or in part, or challenges the validity of, its guarantee.
(j) Seller shall, from time to time as requested by Buyer, execute, acknowledge, record, register, deliver and file all such notices, statements, instruments and other documents as may be necessary or advisable to render fully valid and enforceable under all Requirements of Law the Performance Security and the rights of Buyer with respect to such Performance Security.
(k) Notwithstanding the other provisions of this Agreement, the Performance Security: (i) constitutes security for, but is not a limitation of, Seller’s obligations under this Agreement, and (ii) shall not be Buyer’s exclusive remedy against Seller for Seller’s failure to perform in accordance with this Agreement.
Appears in 1 contract
Samples: Power Purchase Agreement
Seller Performance Security.
(a) As a condition to the occurrence of the Effective Date, Seller shall have furnished to Buyer cash (to be held in an escrow account), one or more letters of credit or guarantees issued by Qualified Issuers in accordance with Section 5.4(j), in either the form attached hereto as Appendix EAppendices E or G, respectively, or in such other form as such form may be modified with the consent is reasonably acceptable to Buyer, or combinations of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests any of the Qualified Issuerthem, in the aggregate amount of Twelve Million Dollars ($2,500,00012,000,000), which shall secure all of will guarantee Seller’s obligations under this Agreement; provided, however, that as a condition to pay liquidated damages under Sections 3.7(a) and 3.7(bthe achievement of Partial Commercial Operation, Seller shall increase the amount of such security to Thirty Five Million Dollars ($35,000,000) (such security, collectively, the “Project Development Security”). From and after the Effective Date, Seller shall maintain such Project Development Security (less any draws on such security that were properly made by Buyer) until Seller posts the Delivery Term Security pursuant to Section 5.9(b5.4(b) below, or until Buyer is required to return the Project Development Security under Section 5.9(c5.4(c) below.below.
(b) As a condition to the achievement of Full Commercial Operation, Seller shall have furnished to Buyer cash (to be held in an escrow account), one or more letters of credit or guarantees issued by Qualified Issuers, or guarantees from a Qualified Guarantor, or a combination of both, Issuers in accordance with Section 5.4(j) in either the form attached hereto as Appendix Appendices E or G, as such form may be modified with the consent respectively, or combinations of Buyer (not to be unreasonably withheld or delayed) to reflect the reasonable requests any of the Qualified Guarantorthem, as applicable, and in the aggregate amount of Forty-Five Million Dollars ($8,000,00045,000,000), which shall will guarantee Seller’s obligations under this Agreement, following the Commercial Operation Date Agreement (“Delivery Term Security”); provided that Seller may elect to apply the Project Development Security toward the Delivery Term Security. From and after the Full Commercial Operation Date, Seller shall maintain such Delivery Term Security (less any draws on such security that were properly made by Buyer) until the end of the Agreement Term or until Buyer is required to return the Delivery Term Security to Seller as set forth in Section 5.9(d5.4(d) below, provided that Seller may, from time to time, replace a letter of credit with a guarantee and vice versa so long as such replacement letter of credit or guarantee shall comply with the applicable provisions of this Agreement and the aggregate amount required above is maintained..
(c) If after the Full Commercial Operation Date no damages or other amounts are due and owing to Buyer under this Agreement, or if this Agreement terminates prior to the occurrence of the Full Commercial Operation Date while the Project Development Security is outstanding, then Seller shall no longer be required to maintain the Project Development Security, and Buyer shall return to Seller the Project Development Security, less any amounts drawn by Buyer as permitted under the terms of this Agreement (including under Section 2.4(h))Agreement. The Project Development Security (or portion thereof) due to Seller shall be returned to Seller within three (3) Business Days after (i) Seller’s provision of the Delivery Term Security, unless Seller elects to apply the Project Development Security toward the Delivery Term Security, orthree
Appears in 1 contract
Samples: Power Purchase Agreement
Seller Performance Security.
(a) As a condition to Within thirty (30) days following the occurrence of date that the Effective DateProject Participant Approval has been received, Seller shall have furnished to Buyer one or more letters a letter of credit issued by a Qualified Issuers Issuer substantially in the form attached hereto as of Appendix E, as such form may be modified with the consent of Buyer (not to be unreasonably withheld withheld, conditioned or delayed) to reflect the reasonable requests of the Qualified Issuer), in the aggregate an amount of $2,500,000, equal to which shall secure all of Seller’s obligations to pay liquidated damages under Sections 3.7(a) and 3.7(b) Section 3.7 (“Project Development Security”). From and after the Effective Date, Seller shall maintain such Project Development Security until Seller posts the Delivery Term Security pursuant to Section 5.9(b) below, or until Buyer is required to return the Project Development Security under Section 5.9(c) below.below. Any reduction of the Minimum Capacity pursuant to Section 2.4 or Section 3.1 shall result in the recalculation of the amount of Project Development Security and Seller shall be entitled to reduce the Project Development Security in accordance with such calculation. In the event that Xxxxx draws on the Project Development Security at any time, Seller shall within ten (10) Business Days thereafter replenish such Project Development Security; provided, however, that in no event shall the aggregate amount of the original posting of Project Development Security plus all such replenishments exceed an amount equal to two hundred percent (200%) of the applicable amount of Project Development Security required to be maintained by Seller at the time of any such replenishment.
(b) As a condition to the achievement of Commercial OperationOperation for each Facility, Seller shall have furnished to Buyer (i) one or more letters of credit issued by Qualified Issuers, or guarantees from a Qualified Guarantor, or a combination of both, Guarantor substantially in the form attached hereto as of Appendix G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld withheld, conditioned or delayed), (ii) a letter of credit issued by a Qualified Issuer substantially in the form of Appendix E, as such form may be modified with the consent of Buyer (not to reflect the reasonable requests be unreasonably withheld, conditioned or delayed), or (iii) a combination of any of the Qualified Guarantorforegoing, as applicable, and in the aggregate amount of $8,000,000equal to , which shall guarantee Seller’s obligations under this Agreement, Agreement following the Commercial Operation Date (“Delivery Term Security”); provided that Seller may elect to apply the Project Development Security toward the Delivery Term Security. From and after the Commercial Operation DateDate for a Facility, Seller shall maintain such the corresponding Delivery Term Security until the end of the Agreement Term or until Buyer is required to return the Delivery Term Security to Seller as set forth in Section 5.9(d) below, ; provided that Seller may, from time to time, replace a letter any portion of credit the Delivery Term Security with a guarantee and vice versa so long as another form of Delivery Term Security meeting the foregoing requirements. In the event that Xxxxx draws on the Delivery Term Security at any time, Seller shall within ten (10) Business Days thereafter replenish such replacement letter of credit or guarantee shall comply with the applicable provisions of this Agreement and the aggregate amount required above is maintained.Delivery Term Security.
(c) If after Upon the Commercial Operation Date no damages earliest to occur of (i) the Project Net Capacity is increased to an amount that is equal to or other amounts are due and owing to Buyer under this Agreementgreater than the Minimum Capacity, or if (ii) this Agreement terminates prior to the occurrence of the Commercial Operation Date is terminated while the Project Development Security is outstanding, then or (iii) Seller’s payment of Capacity Buydown Damages in accordance with Section 3.7(a), Seller shall no longer be required to maintain the Project Development Security, and Buyer shall return to Seller the Project Development Security, less any and all amounts drawn by Buyer as permitted under the terms of this Agreement (including under Section 2.4(h))Agreement. The Project Development Security (or portion thereof) due to Seller after any and all amounts are drawn by Xxxxx as permitted under the terms of this Agreement shall be returned to Seller within three five (35) Business Days after the first event described in clauses (i) Seller’s provision through (iii) of this Section 5.9(c) occurs.
(d) Xxxxx shall return the unused portion of Delivery Term Security, unless if any, to Seller elects to apply promptly after both of the Project Development Security toward following have occurred: (i) the Delivery Agreement Term Securityhas ended, orand
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Samples: Renewable Power Purchase Agreement
