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, 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 $500,000, which shall guarantee Seller’s obligations under this Agreement (“Project Development Security”). From and after the Effective Date, Seller shall maintain such Project Development Security until Seller posts the 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(d) below. (b) As a condition to the period 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 the three, in the form attached hereto as Appendices E or G, as applicable, and in the aggregate amount of $1,500,000, which shall guarantee Seller’s obligations under this 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(f) below. (d) If 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. The Project Development Security and Between Initial Synchronization and Final COD Security (or portions thereof) due to Seller shall be returned to Seller within ten (10) 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, or (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 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, cash, or guarantees from Qualified Guarantors, or a combination of the three, Issuer substantially in the form attached hereto as Appendices E or Gof Appendix E, as applicablesuch form may be modified with the consent of Buyer (not to be unreasonably withheld, and conditioned or delayed), in the aggregate an amount of $500,000, equal to which shall guarantee secure all of Seller’s obligations to pay liquidated damages under this Agreement Section 3.7 (“Project Development Security”). From and after the Effective Date, Seller shall maintain such Project Development Security until Seller posts the 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(d5.9(c) 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 period between Initial Synchronization and CODachievement of Commercial Operation for each Facility, Seller shall have furnished to Buyer (i) one or more letters guarantees from a Qualified Guarantor substantially in the form of Appendix G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld, conditioned or delayed), (ii) a letter of credit issued by a Qualified IssuersIssuer substantially in the form of Appendix E, cashas such form may be modified with the consent of Buyer (not to be unreasonably withheld, conditioned or delayed), or guarantees from Qualified Guarantors, or (iii) a combination of any of the threeforegoing, in the form attached hereto as Appendices E or G, as applicable, and in the aggregate amount of $1,000,000equal to , 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 following 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 the three, in the form attached hereto as Appendices E or G, as applicable, and in the aggregate amount of $1,500,000, which shall guarantee Seller’s obligations under this Agreement Date (“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 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(f5.9(d) below; provided that Seller may, from time to time, replace any portion of the Delivery Term Security with 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 Delivery Term Security.
(dc) If upon 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 or Between Initial Synchronization and Final COD 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 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 and all amounts drawn by Buyer as permitted under the terms of this Agreement. The Project Development Security and Between Initial Synchronization and Final COD Security (or portions 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 ten five (105) Business Days after the first event described in clauses (i) Seller’s provision through (iii) 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, or (iithis Section 5.9(c) the effective date of such earlier termination when damages are no longer due and owing to Buyeroccurs.
(ed) 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 Xxxxx shall return the unused portion of Delivery Term Security, if any, to Seller promptly after both of 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.and
Appears in 1 contract
Samples: Renewable 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, cash, or guarantees from Qualified Guarantors, or a combination of the three, Issuers in the form attached hereto as Appendices E or GAppendix E, as applicablesuch 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, and in the aggregate amount of sixteen million dollars ($500,00016,000,000), which shall guarantee secure all of Seller’s obligations to pay liquidated damages under this Agreement Section 3.7 (“Project Development Security”). From and after the Effective Date, Seller shall maintain provide such Project Development Security until Seller posts the 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(d5.9(c) 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 period between Initial Synchronization and CODachievement 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, 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 the threeboth, in the form attached hereto as Appendices E Appendix G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or Gdelayed) 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) $1,500,000475,000 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 following the Delivery Commencement or Commercial Operation 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 or the Between Initial Synchronization and Final COD 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(f5.9(d) below, provided that Seller may, from time to time, replace a guarantee with a letter of credit so long as such replacement letter of credit shall comply with the applicable provisions of this Agreement and the aggregate amount required above is maintained.
(dc) If upon 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 or Between Initial Synchronization and Final COD Security is outstanding, then or (iii) December 31, 2024, 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 and all amounts drawn by Buyer as permitted under the terms of this Agreement. The Project Development Security and Between Initial Synchronization and Final COD Security (or portions 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 ten three (103) Business Days after the first event described in clauses (i) Seller’s provision through (iii) 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, or (iithis Section 5.9(c) the effective date of such earlier termination when damages are no longer due and owing to Buyeroccurs.
(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.
(fd) 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.
(ge) 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. In the event that such replacement Performance Security is not so provided by Seller, Buyer shall have the 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.
(hf) 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.
(ig) 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.
(jh) 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 instruments, and other documents as may be necessary or advisable to render fully valid valid, perfected, and enforceable under all Requirements of Law the Performance Security and the rights rights, Liens, and priorities of Buyer with respect to such Performance Security.
(kj) Notwithstanding the other provisions of Except as otherwise provided in 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 (Ormat Technologies, Inc.)
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, cash, or guarantees from Qualified Guarantors, or a combination of the threeIssuers in accordance with Section 5.4(j), in either the form attached hereto as Appendices E or G, respectively, or in such other form as applicableis reasonably acceptable to Buyer, and or combinations of any of them, in the aggregate amount of Twelve Million Dollars ($500,00012,000,000), which shall will guarantee Seller’s obligations under this Agreement Agreement; provided, however, that as a condition to the 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 Between Initial Synchronization and Final COD 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(d5.4(c) below.
(b) As a condition to the period between Initial Synchronization and CODachievement 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, cash, or guarantees from Qualified Guarantors, or a combination of the three, Issuers in accordance with Section 5.4(j) in either the form attached hereto as Appendices E or G, as applicablerespectively, and or combinations of any of them, in the aggregate amount of Forty-Five Million Dollars ($1,000,00045,000,000), 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 the three, in the form attached hereto as Appendices E or G, as applicable, and in the aggregate amount of $1,500,000, which shall will guarantee Seller’s obligations under this 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 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(f5.4(d) below.
(dc) If upon 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 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. The Project Development Security and Between Initial Synchronization and Final COD Security (or portions portion thereof) due to Seller shall be returned to Seller within ten (10) 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, or (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.three
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 deliver to Buyer one or more letters of credit issued by Qualified Issuers, surety bonds, cash, or guarantees from Qualified Guarantors, or a combination of the threethereof, in the form forms attached hereto as Appendices E or G, as applicable, and in the aggregate amount of One Million Dollars ($500,0001,000,000), which amount shall 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 under this Agreement (collectively, the “Project Development Security”). From and after the Effective Date, Seller shall maintain such Project Development Security until Seller posts the Between Initial Synchronization and Final COD 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(d5.9(c) below.below.
(b) As a condition to the period 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, surety bonds, cash, or guarantees from a Qualified GuarantorGuarantors, or a combination of the threethereof, in the form forms attached hereto as Appendices E or G, as applicable, and (i) in the aggregate an amount of equal to Two Million Five Hundred Thousand Dollars ($1,500,0002,500,000), which shall guarantee Seller’s obligations under this Agreement (the “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(f5.9(e) below.below.
(dc) If 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 or Between Initial Synchronization and Final COD Security is outstanding, then and if Seller shall no longer be required does not elect to maintain apply the Project Development Security and Between Initial Synchronization and Final COD toward the Delivery Term Security, and then 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 in accordance with this Agreement. The Project Development Security and Between Initial Synchronization and Final COD Security (or any portions thereof) due to Seller shall be returned to Seller within ten (10) Business Days after 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, or (ii) the effective date of such earlier termination when early termination, so long as damages are no longer due and owing to Buyer.
(ed) If Seller fails to pay any amounts due to Buyer hereunder, 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 an amount equal to the amount unpaidof 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 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.dispute between the Parties. Promptly, and in no event more than fifteen (15) days following any draw by Buyer on the Performance Security, Seller shall replenish the amount drawn such that the Performance Security is restored to the amount set forth in Section 5.9(a) or Section 5.9(b), as applicable.
(fe) Buyer shall return the unused portion of Delivery Term Security, if any, to Seller promptly after the following have occurredas follows: (i) following the expiration or termination of the Agreement Term has endedTerm, including the exercise by Buyer of the Right of First Offer, and (ii) upon all of the obligations of Seller arising under this Agreement are being paid (whether directly or indirectly such as through set-off or netting) or performed in full.full.
(gf) 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.
(hg) 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.
(ih) 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 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.
(ji) 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.
(kj) 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, cash, or guarantees from Qualified Guarantors, or a combination of the three, Issuers in the form attached hereto as Appendices E or GAppendix E, as applicablesuch 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, and in the aggregate amount of $500,0002,500,000, which shall guarantee secure all of Seller’s obligations to pay liquidated damages under this Agreement 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 Between Initial Synchronization and Final COD 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(d5.9(c) below.below.
(b) As a condition to the period between Initial Synchronization and CODachievement of Commercial Operation, Seller shall have furnished to Buyer one or more letters of credit issued by Qualified Issuers, cash, or guarantees from a Qualified GuarantorsGuarantor, or a combination of the threeboth, in the form attached hereto as Appendices E Appendix G, as such form may be modified with the consent of Buyer (not to be unreasonably withheld or Gdelayed) to reflect the reasonable requests of the Qualified Guarantor, as applicable, and in the aggregate amount of $1,000,0008,000,000, 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 CODAgreement, 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 following 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 the three, in the form attached hereto as Appendices E or G, as applicable, and in the aggregate amount of $1,500,000, which shall guarantee Seller’s obligations under this Agreement Date (“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(f5.9(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.
(dc) If upon 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 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 AgreementAgreement (including under Section 2.4(h)). The Project Development Security and Between Initial Synchronization and Final COD Security (or portions portion thereof) due to Seller shall be returned to Seller within ten three (103) 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, or (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.or
Appears in 1 contract
Samples: Power Purchase Agreement
