Common use of Buyer’s Failure Clause in Contracts

Buyer’s Failure. Unless excused by Force Majeure or Seller’s failure to perform, and except during any Curtailment Period, if any Buyer fails to receive at the Point of Delivery all or any part of the Facility Energy required to be received by Buyers under this Article VI, Article VIII, or Article IX, such Buyer shall, on the date payment would otherwise be due to Seller, pay Seller Cover Damages; provided that Seller shall use commercially reasonable efforts to resell any Facility Energy and Environmental Attributes not able to be received by such Buyer. “Cover Damages” means the positive difference, if any, obtained by subtracting (i) the amount for which Seller, acting in a commercially reasonable manner, resells any such Facility Energy and, if applicable, Environmental Attributes (or, absent any such sales despite using commercially reasonable efforts to procure such sales, zero dollars ($0)) from (ii) the applicable prices that would have been payable by SMUD, MID, TID, or SCPPA’s Participating Members, as applicable, for the applicable portion of Facility Energy, and, if applicable, Environmental Attributes not received by such Buyer. Seller shall provide any Buyer that fails to receive all of any part of its portion of the Facility Energy with prompt written notice of the Cover Damages together with back-up documentation.

Buyer’s Failure. Unless excused by Force Majeure Majeure, a System Emergency, or Seller’s failure to perform, perform and except during any Curtailment Period, if any Buyer fails to receive at the Point of Delivery all or any part of the Facility Energy or Replacement Product required to be received by Buyers Buyer under this Article ARTICLE VI, Article ARTICLE VIII, or Article IXARTICLE X, such Buyer shall, on the date payment would otherwise be due to Seller, pay Seller Cover Damages; provided that Seller shall use commercially reasonable efforts to resell any Facility Energy and Environmental Attributes not able to be received by such Buyer; provided that Buyer shall provide notice to Seller in writing if it elects to receive the Environmental Attributes associated with Facility Energy to be sold to third parties, and if Buyer so elects, Seller shall deliver to Buyer the Environmental Attributes associated with Facility Energy sold to third parties. “Cover Damages” means the positive difference, if any, obtained by subtracting (iA) the amount for which Seller, acting in a commercially reasonable manner, resells any such Facility Energy or Replacement Product, and, if applicableapplicable Environmental Attributes, Environmental Attributes (or, absent any such sales despite using commercially reasonable efforts to procure such sales, zero dollars ($0)) from (iiB) the applicable prices price that would have been payable by SMUD, MID, TID, or SCPPA’s Participating Members, as applicable, Buyer for the applicable portion of Facility Energy, andReplacement Product, or Environmental Attributes, if applicable, Environmental Attributes not received by Buyer, plus any reasonable and documented costs incurred by Seller in connection with the resale or attempted resale of such BuyerFacility Energy, Replacement Product, or Environmental Attributes, if applicable. Seller shall provide any Buyer that fails to receive all of any part of its portion of the Facility Energy with prompt written notice of the Cover Damages together with back-up documentation.

Buyer’s Failure. Unless excused by Force Majeure Majeure, a System Emergency, or Seller’s failure to perform, and except during any Curtailment Period, if any Buyer fails to receive at the Point of Delivery all or any part of the Facility Energy or Replacement Product required to be received by Buyers Buyer under this Article ARTICLE VI, Article ARTICLE VIII, or Article IXARTICLE X, such Buyer shall, on the date payment would otherwise be due to Seller, pay Seller Cover Damages; provided that Seller shall use commercially reasonable efforts to resell any Facility Energy and Environmental Attributes not able to be received by such Buyer. “Cover Damages” means the positive difference, if any, obtained by subtracting (iA) the amount for which Seller, acting in a commercially reasonable manner, resells any such Facility Energy and, if applicable, Environmental Attributes (or, absent any such sales despite using commercially reasonable efforts to procure such sales, zero dollars ($0)) from (iiB) the applicable prices price that would have been payable by SMUD, MID, TID, or SCPPA’s Participating Members, as applicable, Buyer for the applicable portion of Facility Energy, and, if applicable, Environmental Attributes Energy not received by Buyer, plus any reasonable and documented costs incurred by Seller in connection with the resale or attempted resale of such BuyerFacility Energy. Seller shall provide any Buyer that fails to receive all of any part of its portion of the Facility Energy with prompt written notice of the Cover Damages together with back-up documentation.