Seller’s Failure. In the event that the Seller fails to make conveyance of its Membership Interest pursuant to its obligations herein, then the Buyer shall have the option: (A) to demand and receive specific performance of the Seller’s obligations to convey its Membership Interest as provided for herein; (B) to recover damages on account of the Seller’s failure to make conveyance (which rights shall be in addition to the right granted under subparagraph (A) above, if the Buyer so elects); or (C) to terminate the obligations of the parties to proceed with the sale of the Membership Interest, whereupon the position of the parties shall revert to the status quo ante as if no notice to purchase from either party to the other had been given under the provisions of this Agreement.
Seller’s Failure. In the event that the Seller fails to make conveyance of its Units pursuant to its obligations herein, then the Buyer shall have the option:
Seller’s Failure. (i) Notwithstanding anything to the contrary contained in this Agreement, if Seller fails to perform in accordance with the terms of this Agreement and such failure is not as a result of a failure of Purchaser hereunder, then, as Purchaser's sole and exclusive remedy hereunder and at Purchaser's option, either (1) the Exxxxxx Money shall be returned to Purchaser, in which event this Agreement shall be null and void, and neither party shall have any rights or obligations under this Agreement except as provided in Section 6 above and Section 7(A)(ii) below, or (2) upon notice to Seller not less than ten (10) days after Purchaser becomes aware of such failure, and provided an action is filed within thirty (30) days thereafter, Purchaser may seek specific performance of Seller's obligation to execute and deliver the conveyance documents required of it under this Agreement, but not damages. Purchaser's failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (1) above.
(ii) In the event that Seller's failure to perform as provided in Section 7(A)(i) above is the result of an intentional, willful and bad faith breach of this Agreement by Seller and Purchaser elects to proceed under clause (1) of Section 7(A)(i) above, then, in addition to the return of the Exxxxxx Money, Seller shall remit to Purchaser the actual, out of pocket costs and expenses incurred by Purchaser to negotiate this Agreement, and to investigate and evaluate the Property in accordance with Section 8(A) above, provided that any such reimbursement shall not in the aggregate exceed Thirty Two Thousand Five Hundred Dollars ($32,500.00) (such reimbursement being referred to herein as the "Cost Reimbursement"). In the event Seller is obligated to pay Purchaser the Cost Reimbursement, then such amount shall be remitted by Seller to Purchaser within ten (10) business days following Purchaser's request for the Cost Reimbursement, provided that such request is accompanied by appropriate documentation of Purchaser's eligible costs and expenses.
Seller’s Failure. Seller shall neither (a) procure Energy from sources other than the Facility for sale and delivery pursuant to this Agreement, nor (b) unless excused by Force Majeure or a Buyer’s failure to perform, sell to a third party all or any part of the Products required to be delivered by Seller under this Article VI, Article VII, Article VIII or Article IX.
Seller’s Failure. If the quantity Seller sells and delivers on any Day is less than the applicable Contract Quantity and the Replacement Price is greater than the Contract Price, then Seller shall be liable for and shall pay to Buyer a dollar amount equal to the product of (i) the difference between the Replacement Price and the Contract Price and; (ii)
Seller’s Failure. Except as provided in Article IX, and except for Energy that is RPS Compliant that is provided by the Transmission Provider pursuant to its tariff in connection with the Transmission Services, in no event shall Seller have the right to procure energy from sources other than the Project for sale and delivery pursuant to this Agreement. Seller shall not sell, deliver or convey any Facility Energy, Capacity Rights, and associated Green Attributes from any Facility to any third-party except as set forth in Section 6.4. If Seller sells any part of any Facility Energy, Capacity Rights, and associated Green Attributes to a third party in violation of Section 6.4 (including in connection with a claimed Force Majeure that does not satisfy the requirements of a Force Majeure in accordance with Section 14.3), Seller shall pay Buyer, within thirty (30) days of such sale all proceeds that Seller receives from such sale.
Seller’s Failure. In no event shall Seller have the right to procure Energy from sources other than the Facility for sale and delivery pursuant to this Agreement. During the Delivery Term and subject to the terms and conditions of this Agreement, all of the Products from the Facility shall be dedicated to Buyer; provided that Seller may sell to any third-party purchaser any Products associated with the Facility that are not accepted by Buyer, including (a) Test Energy Buyer elects not to purchase, (b) Facility Energy (and associated Green Attributes), the delivery of which is curtailed due to a Force Majeure event that prevents Buyer from receiving Energy at the Point of Delivery, or (c) due to a Default by Buyer that has occurred and is continuing. Unless permitted or excused as set forth herein, if Seller sells to a third party all or any part of the Products required to be delivered by Seller under this Article III, Article VIII or Article X, then Seller shall pay Buyer, on the date payment would otherwise be due to Seller for such Products, an amount for each MWh of such Products equal to the positive difference, if any, obtained by subtracting (A) the price per MWh that would have been payable by Buyer for the Products not delivered to Buyer, from (B) the Replacement Price plus all transmission, scheduling, administrative, and other costs required to effectuate such purchase. Buyer shall provide Seller prompt written notice of the Replacement Price, together with back-up documentation.
Seller’s Failure. Except as provided in Article IX, and except for Energy provided by the Transmission Provider pursuant to its tariff in connection with the Transmission Services that is both EPS Compliant and RPS Compliant, in no event shall Seller have the right to procure energy from sources other than the Facility for sale and delivery pursuant to this Agreement. Unless there shall be a Force Majeure or a Buyer’s failure to perform its obligations under this Agreement, if, on or after the Commercial Operation Date, Seller sells any part of any Facility Energy and associated Environmental Attributes required to be delivered by Seller under this Article VI or Article VIII to a third party, Seller shall pay Buyer, within thirty (30) days of Buyer’s written request therefor an amount for each MWh of such deficiency equal to the positive difference, if any, obtained by subtracting the price per MWh that would have been payable by Buyer for the Facility Energy and Environmental Attributes not delivered from the Replacement Price. Buyer shall provide Seller prompt written notice of the Replacement Price together with back-up documentation.
Seller’s Failure. Buyer may terminate this Agreement if Closing has failed to occur as of the Closing Date as a result of:
i. the failure of each of the representations and warranties of Seller set forth in Section 7 to be true and correct in all material respects on and as of the Closing Date (and in all respects in the case of representations and warranties qualified by materiality) with the same force and effect as though such representations and warranties had been made or given on and as of the Closing Date (other than representations and warranties that refer to a specified date, which need only be true and correct on and as of such specified date); or
ii. the failure of Seller to materially perform or comply with all obligations, agreements and covenants contained in this Agreement as to which performance or compliance by Seller is required prior to or at the Closing Date;
Seller’s Failure. In the event that the Seller fails to make conveyance of its Interest in the Property pursuant to its obligations herein, then the Buyer shall have the option:
(a) to demand and receive specific performance of the Seller’s obligations to convey its Interest as provided for herein;
(b) to recover damages on account of the Seller’s failure to make conveyance (which rights shall be in addition to the right granted under subparagraph (a) above, if the Party so elects); or
(c) to terminate the obligations of the Parties to proceed with the sale of the Interest, whereupon the position of the Parties shall revert to the status quo ante as if no notice to purchase from either Party to the other had been given under the provisions of this Agreement. If the Buyer elects the option described in subparagraph 10.3.3.1(c) above, any deposit furnished by the Buyer shall be promptly returned to the Buyer.
