Seller’s Failure to Deliver. If Seller fails to deliver all or part of the Product specified for each Delivery Deadline by the relevant Delivery Deadline and such failure is not excused by Buyer’s failure to perform or by an event of Force Majeure, then Seller shall pay Buyer, within five (5) Business Days of invoice receipt, an amount equal to the positive difference, if any, obtained by subtracting the Contract Price from the Compliance Zone ACP multiplied by the days in Planning Year and multiplying such positive amount, if any, by the portion of the Contract Quantity which Seller failed to deliver. In addition, the Seller shall pay to Buyer all penalties and/or charges assessed to Buyer (either directly or through contractual obligation) resulting directly from Seller’s failure to deliver all or part of the Product; provided, however, that Seller shall not be liable for any Capacity Deficiency Charges or similar penalties assessed to Buyer resulting from Buyer’s election to become deficient in the Planning Resource Auction. The invoice from Buyer to Seller for any amount owed by Seller to Buyer pursuant to this provision shall include a written statement explaining in reasonable detail the calculation of such amount.
Seller’s Failure to Deliver. If Seller fails to deliver Product that complies with the requirements set forth in this Agreement or fails to deliver all or part of the Contract Quantity (each will be deemed as a failure to deliver for purposes of calculating damages), and such failure is not excused by a Permitted Excuse to Perform or Buyer’s failure to perform, then Buyer shall elect in its sole discretion: (i) to terminate and liquidate this Agreement if such failure is an Event of Default as set forth herein, and in which case Buyer shall calculate its termination payment in accordance with this Agreement as though it were the Non-Defaulting Party; or, (ii) to require Seller to pay Buyer within three (3) Business Days of invoice receipt, liquidated damages in the amount obtained by multiplying the number of units of Product (or component thereof) that Seller failed to deliver to Buyer multiplied by two (2) times the per unit Contract Price.
Seller’s Failure to Deliver. With respect to Seller, the unexcused failure of Seller to deliver Coke in accordance with this Coke Purchase Agreement, which failure has not been corrected, cured, or remedied within five (5) days after written notice of such failure has been received by Seller; provided, however, that any failure of Seller described by this Section 10.2 shall not constitute an Event of Default if
Seller’s Failure to Deliver. If Seller fails to deliver all or part of the Product specified in Table A by the Delivery Deadline and such failure is not excused by Buyer’s failure to perform or by an event of Force Majeure, then Seller shall pay Buyer, within five (5) Business Days of invoice receipt, all Financial Settlement Charges and other penalties and/or charges assessed to Buyer (either directly or through contractual obligation) resulting directly from Seller’s failure to deliver all or part of the Product. In addition, to the extent that Seller’s failure to deliver all or part of the Product results in Buyer being assessed (i) Financial Settlement Charges and other penalties and/or charges for an amount of MW that is less than the Contract Quantity that Seller failed to deliver, or (ii) no Financial Settlement Charges and other penalties and/or charges for the Contract Quantity that Seller failed to deliver, then Buyer shall also be entitled to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price and multiplying such positive difference, if any, by the portion of the Contract Quantity which Seller failed to deliver and for which no Financial Settlement Charges and other penalties and/or charges are assessed to Buyer. “Replacement Price” means the price at which Buyer, acting in a commercially reasonable manner, purchases substitute or replacement Product for the Product not delivered by Seller, or absent any such substitute or replacement purchase, the market price for such quantity of substitute or replacement Product as determined by Buyer in a commercially reasonable manner. “Financial Settlement Charges” has the meaning given to it in the MISO Documents.
Seller’s Failure to Deliver. If Seller shall have failed to deliver to Buyer all material documents required to be delivered under Section 7.3 hereof, Buyer may, at its option, at any time on or after such date, but prior to the curing of such failure by Seller, give Seller a five (5) day written notice specifying such default, and if Seller fails to cure such default within such five (5) day period, Buyer may terminate this Agreement, receive the return of the Deposit and pursue any other remedy available to it pursuant to the provisions hereof.
Seller’s Failure to Deliver. If Seller fails to deliver all or part of the Product by the Initial Delivery Deadline or the Delivery Deadline, as applicable, and such failure is not excused by Buyer’s failure to perform or by an event of Force Majeure, then Seller shall pay Buyer, within five (5) Business Days of invoice receipt, all Financial Settlement Charges and other penalties and/or charges assessed to Buyer (either directly or through contractual obligation) resulting directly from Seller’s failure to deliver all or part of the Product. In addition, to the extent that Seller’s failure to deliver all or part of the Product results in Buyer being assessed (i) Financial Settlement Charges and other penalties and/or charges for an amount of MW that is less than the Contract Quantity that Seller failed to deliver, or (ii) no Financial Settlement Charges and other penalties and/or charges for the Contract Quantity that Seller failed to deliver, then Buyer shall also be entitled to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price and multiplying such positive difference, if any, by the portion of the ProductContract Quantity which Seller failed to deliver and for which no Financial Settlement Charges and other penalties and/or charges are assessed to Buyer. “Replacement Price” means the price at which Buyer, acting in a commercially reasonable manner, purchases substitute or replacement Product for the Product not delivered by Seller, or absent any such substitute or replacement purchase, the market price for such quantity of substitute or replacement Product as determined by Buyer in a commercially reasonable manner. “Financial Settlement Charges” has the meaning given to it in the MISO Documents.
Seller’s Failure to Deliver. If Seller fails to deliver all or part of the Product specified for each Delivery Deadline by the relevant Delivery Deadline and such failure is not excused by Buyer’s failure to perform or by an event of Force Majeure, then Seller shall pay Buyer, within five (5) Business Days of invoice receipt, all Financial Settlement Charges and other penalties and/or charges assessed to Buyer (either directly or through contractual obligation) resulting directly from Seller’s failure to deliver all or part of the Product. In addition, to the extent that Seller’s failure to deliver all or part of the Product results in Buyer being assessed
Seller’s Failure to Deliver. The Seller must load or deliver the LNG Cargo by the expiry of the Allowed Laytime. A “Failure to Deliver” shall be either as set out in Clause 6.3.1.1 or Clause 6.3.1.2 below. However, for FOB deliveries there shall be no Failure to Deliver if the Buyer does not tender a valid NOR by expiry of the Arrival Window. If Seller is unable to or fails to deliver all or part of the LNG Cargo by the expiry of the Allowed Laytime for any reason other than: an event of Force Majeure; or reasons attributable to Buyer (which for FOB deliveries includes the LNG Ship or the Transporter or the LNG Ship’s master and crew); or Adverse Weather. For the purposes of Clause 6.3, the Allowed Laytime shall be extended for the duration of any of (i) – (iii) above. For DAP deliveries, if Seller fails to tender a valid NOR within the Arrival Window. In the event of a Failure to Deliver there shall be a further forty-eight (48) hour period to commence immediately following the end of the expiry of the Allowed Laytime, during which the Parties shall use reasonable endeavours to reschedule the LNG Cargo (subject to Seller reimbursing any reasonable, actual, documented, direct costs incurred by Buyer as a result of such rescheduling). If, after using reasonable endeavours, the Parties are unable to reschedule the LNG Cargo during such forty-eight (48) hour period, this shall be treated as a “Deemed Failure to Deliver” and the LNG not delivered (being all or part of the Deemed Cargo Quantity) shall be considered a deficiency quantity (a “Deficiency Quantity”), and Seller shall pay to Buyer any sum due calculated in accordance with Clause 6.3.4 below and invoiced pursuant to Clauses 11.1.3 or 11.2.6 (as applicable). The Deficiency Quantity shall be calculated without regard to the Cargo Tolerance.
Seller’s Failure to Deliver. If the Seller fails to deliver electric capacity and energy as a result of the breach of the duties imposed on it under Section 6, the Seller shall promptly reimburse the Purchaser for the cost of electric capacity and energy required to replace such capacity and energy, but the Purchaser shall not be entitled to terminate this Agreement or to withhold payments required to be made pursuant to this Agreement.
Seller’s Failure to Deliver. If Seller fails to deliver Product that complies with the requirements set forth in this Agreement or fails to deliver all or part of the Contract Quantity (each will be deemed as a failure to deliver for purposes of calculating damages), and such failure is not excused by a Permitted Excuse to Perform or Buyer’s failure to perform, then Buyer shall elect in its sole discretion: (i) to terminate and liquidate this Agreement if such failure is an Event of Default as set forth herein, and in which case Buyer shall calculate its termination payment (i.e., Net Settlement Amount) in accordance with this Agreement as though it were the Non- Defaulting Party; or, (ii) to require Seller to pay Buyer within three (3) Business Days of invoice receipt, liquidated damages in the amount obtained by multiplying the number of units of Product (or component thereof) that Seller failed to deliver to Buyer multiplied by the per unit Contract Price (or component thereof). Buyer shall calculate the number of units of Product that Seller failed to deliver within the relevant portion of the Delivery Period by using the Output Requirement set out in Section 8.5 and, to the extent proration is required within a year, Exhibit 1.
