Common use of Early Payments Clause in Contracts

Early Payments. Any Early Termination Payment, payment under Section 7.2(b) and Termination for Convenience Payment (collectively, “Early Payments”) shall be presumed to be equal to the liquidated damages sustained by the SDCL Parties as the result of the occurrence of the applicable termination event and the Asset Manager agrees that it is reasonable under the circumstances currently existing. The Asset Manager acknowledges that the Early Payments represent a reasonable and fair estimate for the loss that the SDCL Parties may sustain from the early termination of the applicable Project Contract(s), and further acknowledges that except as specifically provided herein the Asset Manager does not have any right to terminate this Article in whole or in part without paying the applicable Early Payments. THE ASSET MANAGER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF ANY EARLY PAYMENT IN CONNECTION WITH ANY SUCH TERMINATION OF THIS ARTICLE, THIS AGREEMENT OR ANY PROJECT CONTRACT. The Asset Manager expressly agrees that (i) each Early Payment is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (ii) the Early Payments shall be payable notwithstanding the then prevailing market rates at the time payment is made, (iii) there has been a course of conduct between the Tecogen Parties and the SDCL Parties giving specific consideration in this transaction for such agreement to pay each Early Payment, (iv) the Tecogen Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 7.3, (v) the Asset Manager’s agreement to pay Early Payments is a material inducement to the SDCL Parties to consummate the transactions contemplated by the Membership Interest Purchase Agreement and Transaction Documents, and (vi) the Early Payments represent a good faith, reasonable estimate and calculation of the lost profits or damages of the SDCL Parties and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the SDCL Parties or profits lost by the SDCL Parties as a result of such termination of this Article, this Agreement or any Project Contract. Any and all Early Payments shall be fully earned and non-refundable when made.