Chronic Underperformance definition
Chronic Underperformance has the meaning set forth in Section 5.5.1(iv). Claims – means all third-party claims or actions, threatened or filed prior to or after the termination of this Agreement and, whether groundless, false, fraudulent or otherwise, that directly relate to this Agreement, and the resulting losses and damages, and reasonable expenses, attorneys’ fees, consultants’ fees, and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed. Claiming Party – has the meaning set forth in Section 14.3.
Chronic Underperformance means the failure of the Project to achieve an average Monthly Equivalent Capacity in any consecutive twenty-four (24) Month period (“Average Monthly Equivalent Capacity”) that is equal to at least [eighty percent (80%)] of the Project Capacity. Commencing on the third (3rd) anniversary of the Project COD, Buyer shall have the option to terminate this Agreement as provided herein in the event of Chronic Underperformance. If Chronic Underperformance has occurred, Buyer may give Seller written notice of such Chronic Underperformance within thirty (30) Days of the end of the consecutive twenty-four (24) Month period in which such Chronic Underperformance occurred. Upon receipt of any notice of Chronic Underperformance, Seller shall have an additional six (6) Months to achieve an Average Monthly Equivalent Capacity in excess of eighty (80%) of the Project Capacity. In the event that Seller fails to achieve an Average Monthly Equivalent Capacity level in excess of eighty percent (80%) of the Project Capacity within such six (6) Month period, Buyer shall have the right to terminate this Agreement pursuant to Section 6.3. article 6: EVENTS OF DEFAULT; REMEDIES Seller Events of Default The occurrence of one or more of the following events shall constitute a “Seller Event of Default”:
6.1. 1the failure by Seller to make, when due, any payment required pursuant to this Agreement if such failure is not remedied within ten (10) Business Days after written notice from Buyer;
6.1. 2any representation or warranty made by Seller herein or in any certificate delivered to Buyer pursuant to this Agreement is false or misleading in any material respect when made or when deemed made or repeated;
6.1. 3the failure by Seller to perform any material covenant or obligation set forth in this Agreement if such failure is not remedied within thirty (30) Days after written notice; provided that if such failure is not reasonably capable of being cured within thirty (30) Days, and if Seller is exercising diligent efforts to remedy such failure, then such additional period of time, not to exceed ninety (90) additional Days, as shall be required to remedy such failure with the exercise of diligent efforts;
6.1. 4Seller becomes Bankrupt;
6.1. 5Seller consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee e...
Chronic Underperformance means the failure of the Project to achieve an average Monthly Equivalent Capacity in any consecutive twenty-four
Examples of Chronic Underperformance in a sentence
If, in each of the three consecutive Contract Years in question, the Delivered Energy for such Contract Year is less than eighty percent (80%) of the Projected Energy Deliveries for such Contract Year, Chronic Underperformance will have occurred.
The following is an example to illustrate when Chronic Underperformance will have occurred.
Beneficiary: LONG ISLAND POWER AUTHORITY By: Name: Title: Chronic Underperformance Calculation: In each Contract Year in question, the Delivered Energy is compared to eighty percent (80%) of the Projected Energy Deliveries for such Contract Year.
No No No No No No No Yes No No Under this example, Chronic Underperformance will be deemed to have occurred in Contract Year 8, as this is the third consecutive Contract Year where the Delivered Energy in such Contract Year and each of the two preceding Contract Years is less than seventy five percent of the Projected Energy Deliveries for the Contract Year in question.
The Facility would not have Chronic Underperformance in any other period.
For purposes of this Agreement the following terms will be used to determine Guaranteed Performance, Shortfalls and Chronic Underperformance.
More Definitions of Chronic Underperformance
Chronic Underperformance means the failure of the Project to achieve Guaranteed Performance in each of any three consecutive Contract Years. Remedies for Underperformance If a Shortfall has occurred in any Contract Year, Seller shall compensate Buyer (the “Make-Whole Payment”) for such Contract Year equal to the number of MWh of Shortfall in Delivered Energy below the Guaranteed Performance level for such Contract Year multiplied by $30/MWh. Buyer shall have the right to terminate this Agreement pursuant to Section 6.3 in the event Chronic Underperformance has occurred, by giving Seller notice of termination within one hundred twenty (120) Days following such occurrence. Overdelivery In the event that Seller delivers quantities of Delivered Energy equal to or in excess of one hundred and fifteen percent (115%) of the Projected Energy Deliveries as set forth on Exhibit B (“Excess Energy”) during any Contract Year, the Contract Price for each delivered MWh of Energy after Seller’s deliveries exceed the annual quantity in Exhibit B for such Contract Year shall be the then-applicable Energy price set forth in Buyer’s SC-11 Tariff (or any replacement tariff). For avoidance of doubt, ▇▇▇▇▇ will be entitled to all Related Capacity and Renewable Attributes associated with such Excess Energy. EVENTS OF DEFAULT; REMEDIES Seller Events of Default
Chronic Underperformance means the failure of the Project to achieve an average Monthly Equivalent Capacity in any consecutive twenty-four (24) Month period (“Average Monthly Equivalent Capacity”) that is equal to at least [eighty percent (80%)] of the Project Capacity. Commencing on the third (3rd) anniversary of the Project COD, Buyer shall have the option to terminate this Agreement as provided herein in the event of Chronic Underperformance. If Chronic Underperformance has occurred, Buyer may give Seller written notice of such Chronic Underperformance within thirty (30) Days of the end of the consecutive twenty-four (24) Month period in which such Chronic Underperformance occurred. Upon receipt of any notice of Chronic Underperformance, Seller shall have an additional six (6) Months to achieve an Average Monthly Equivalent Capacity in excess of eighty (80%) of the Project Capacity. In the event that Seller fails to achieve an Average Monthly Equivalent Capacity level in excess of eighty percent (80%) of the Project Capacity within such six (6) Month period, Buyer shall have the right to terminate this Agreement pursuant to Section 6.3. EVENTS OF DEFAULT; REMEDIES Seller Events of Default The occurrence of one or more of the following events shall constitute a “Seller Event of Default”: the failure by Seller to make, when due, any payment required pursuant to this Agreement if such failure is not remedied within ten (10) Business Days after written notice from Buyer; any representation or warranty made by Seller herein or in any certificate delivered to Buyer pursuant to this Agreement is false or misleading in any material respect when made or when deemed made or repeated; the failure by Seller to perform any material covenant or obligation set forth in this Agreement if such failure is not remedied within thirty (30) Days after written notice; provided that if such failure is not reasonably capable of being cured within thirty (30) Days, and if Seller is exercising diligent efforts to remedy such failure, then such additional period of time, not to exceed ninety (90) additional Days, as shall be required to remedy such failure with the exercise of diligent efforts; Seller becomes Bankrupt; Seller consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations...
Chronic Underperformance means the failure of the Project to achieve an average Monthly Equivalent Capacity in any consecutive twenty-four (24) Month period (“Average Monthly Equivalent Capacity”) that is equal to at least seventy-five percent (75%) of the Net Design Capacity. Commencing on the third (3rd) anniversary of the Commercial Operation Date, Buyer shall have the option to terminate this Agreement as provided herein in the event of Chronic Underperformance. If Chronic Underperformance has occurred, Buyer may give Seller written notice of such Chronic Underperformance within thirty (30) Days of the end of the consecutive twenty-four (24) Month period in which such Chronic Underperformance occurred. Upon receipt of any notice of Chronic Underperformance, Seller shall have an additional six (6) Months to achieve an Average Monthly Equivalent Capacity in excess of seventy-five percent (75%) of the Net Design Capacity. In the event that Seller fails to achieve an Average Monthly Equivalent Capacity level in excess of seventy-five percent (75%) of the Net Design Capacity within such six (6) Month period, Buyer shall have the right to terminate this Agreement immediately pursuant to Section 12.5. BILLING AND COLLECTIONS Billing and Payment . Unless otherwise specifically agreed upon by the Parties, the calendar Month shall be the standard period for all payments under this Agreement (other than Termination Payments). As soon as practicable after the end of each Month, each Party will render to the other Party an invoice for the payment obligations, if any, incurred hereunder during the preceding Month, except that Monthly Capacity Payments will be submitted in accordance with the terms and conditions set forth in Section 6.1(i)(c)(2) below.
Chronic Underperformance means the failure of the Project to achieve Guaranteed Performance in any three consecutive Contract Years. Remedies for Underperformance