Seller Failure. If Seller fails to Deliver all or part of the Product pursuant to a Transaction, and such failure is not excused by Buyer’s failure to perform, Section 3.4, or Section 3.5 (any or all of which are considered a “Seller Failure”), then Seller shall pay Buyer, within fifteen (15) days of receiving the invoice, an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price for the Quantity not Delivered. The invoice shall include a written statement explaining Buyer’s calculation in reasonable detail. If there are further Delivery Dates under the Transaction, or any other Transactions, then Seller shall provide Buyer with adequate assurances of Seller’s ability to perform its obligations under the remaining Transaction or Transactions by (i) posting additional Performance Assurance pursuant to the Credit Support Addendum and (ii) providing additional documentation as reasonably requested by Buyer.
Seller Failure. If Seller fails to schedule and/or deliver all or -------------- part of the Product pursuant to a Transaction, and such failure is not excused under the terms of the Product or by Buyer's failure to perform, then Seller shall pay Buyer, on the date payment would otherwise be due in respect of the month in which the failure occurred or, if "Accelerated Payment of Damages" is specified on the Cover Sheet, within five (5) Business Days of invoice receipt, an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price. The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount.
Seller Failure. If Seller fails to schedule and/or deliver all or part of the Product pursuant to a Transaction, and such failure is not excused under the terms of the Product or by Buyer’s failure to perform, then Seller shall pay Buyer, within five (5) Business Days of invoice receipt, an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price. The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount.
Seller Failure. If Seller fails to schedule and/or deliver all or part of the Energy pursuant to this Transaction and such failure is not excused under the terms of the Agreement or by Buyer’s failure to perform, then Seller shall pay Buyer, on the date payment would otherwise be due in respect of the month in which the failure occurred, or if “Accelerated Payment of Damages” is specified on the Cover Sheet, within five (5) Business Days of invoice receipt, an amount equal to the positive difference, if any, obtained by subtracting the Presumed Energy Price from the Replacement Price multiplied by the Seller Deficiency Amount.
Seller Failure. For any Hour in which Seller fails to deliver the Requirements Portion and such failure is not excused under the terms of this Agreement, including Section 4.2(b) and Section 13.5, or by Buyer’s failure to receive such energy, then Seller shall reduce its Monthly bill to Buyer for the Month in which such failure occurred by an amount for such deficiency equal to the positive difference, if any, obtained by subtracting the sum of the Hourly Fuel Charge and the Hourly Variable O&M Charge for such Hour which would have been charged for the amount of energy not delivered from the Replacement Price. The invoice for such Month shall include a written statement explaining in reasonable detail the calculation of such amount. For purpose of this Section 4.5(a), “Replacement Price” means the price, including any payments for capacity, at which Buyer, using Commercially Reasonable Efforts, purchases a replacement for the amount of energy not delivered by Seller, plus (i) any costs reasonably incurred by Buyer in purchasing such replacement energy, and (ii) any transmission charges reasonably incurred by Buyer to a Transmission Provider, or, at Buyer’s election, the market price in the Seller BAA for such energy not delivered as determined by Buyer using Commercially Reasonable Efforts; provided, however, in no event shall such price include any penalties or ratcheted demand charges incurred in connection with deliveries of replacement energy, nor shall Buyer be required to utilize or change its utilization of its owned or controlled assets or market positions to minimize Seller’s liability hereunder. Notwithstanding the foregoing, Buyer shall remain obligated to pay the Monthly Demand Charge for such Month calculated in accordance with Section 6.2.
Seller Failure. In the event Seller fails to deliver to ASPA any Quantity of Product to which ASPA is entitled in accordance with the terms of this Agreement and instead sells such Quantity of Product to which ASPA is entitled to a third party in violation of this Agreement, then Seller shall pay to ASPA the "Seller Failure Damages," which shall mean the positive difference, if any, between the Replacement Price and the Contract Price for the period of such Seller failure. ASPA shall calculate the Seller Failure Damages and shall provide to Seller an invoice for such amount, including a written statement explaining in reasonable detail the calculation of such amount. Seller shall pay the Seller Failure Damages not later than ten (10) days following its receipt of such an invoice from ASPA. If the Replacement Price is less than the Contract Price, then the Seller Failure Damages are deemed to be zero (-0-) dollars. The Seller Failure Damages represent the sole and exclusive remedy for Seller's failure as described herein, except as provided in Section 6.1(h). Nothing herein shall be deemed to be inconsistent with or to limit any of Seller’s obligations pursuant to Article Four with respect to maintaining the Guaranteed Availability of the Facility. If, at any time, the Facility fails to achieve the required Guaranteed Availability as described in Section 4.7, then Seller shall be subject to the Availability Default set forth in Section 4.7.
Seller Failure. If Seller fails to scheduleSchedule and/or deliver all or part of a Product hereunder, and such failure is not excused under the terms hereof or by Buyer’s failure to perform, then, subject to the other terms of this Agreement, Seller shall pay Buyer within five
Seller Failure. If SELLER fails to schedule and/or deliver all or part of the Contract Energy or to provide Contract Unforced Capacity as required under this Agreement, and, with respect to a failure to schedule, such failure is not excused by the Plant's unavailability, or, with respect to a failure to schedule and deliver Contract Energy or to provide Contract Unforced Capacity, such failure is not excused by Force Majeure or by BUYER's failure to perform, then SELLER shall pay BUYER, within five (5) Business Days of invoice receipt, an amount for such Contract Energy and/or Contract Unforced Capacity not scheduled, delivered or provided equal to the product of (a) the quantity of such Contract Energy and/or Contract Unforced Capacity not scheduled, delivered or provided, and (b) the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price; provided however, that the Plant's unavailability shall not excuse SELLER's failure to so schedule or deliver if the unavailability is caused by SELLER's or the Transaction Affiliate's gross negligence. The invoice of such amount shall include a written statement explaining in reasonable detail the calculation of such amount.
Seller Failure. The following shall be added in Section 4.1 after the phrase “or by Buyer’s failure to perform,” the following phrase: “subject to the terms of the Products and related Definitions contained in Schedule P,”.
Seller Failure. If Seller fails to schedule and/or deliver all or part of the Product pursuant to a Transaction, and such failure is not excused under the terms of the Product or by Buyer’s failure to perform, then in lieu of any other remedies Seller shall pay Buyer, on the date payment would otherwise be due in respect of the month in which the failure occurred, any amounts required under Section 6.2(c) and (d) with respect thereto.
