Common use of Default by Supplier Clause in Contracts

Default by Supplier. The occurrence of any of the following events at any time during the Term shall constitute an Event of Default by Supplier: Supplier shall fail to pay Company any amount as and when due under this Agreement (less any amounts disputed in good faith pursuant to Article 12 (Governing Law; Dispute Resolution)) and Supplier does not remedy such non-payment within thirty (30) Days after written demand therefor by Company served upon Supplier; Supplier shall fail to operate, maintain or repair the GSDS in accordance with the terms of this Agreement such that a condition exists in relation to the GSDS that has an adverse physical impact on the Company System or the equipment of Company’s customers or other suppliers or which Company reasonably determines presents an immediate danger to such personnel or equipment, and Supplier shall fail to initiate and diligently pursue reasonable action to cure such failure within seven (7) Days after actual receipt by Supplier of demand therefor by Company, provided, that Company may, after providing written notice to Supplier, access the GSDS and any of Supplier’s equipment related to the GSDS or Supplier’s provision of Grid Services to Company, and undertake such reasonable action on behalf of Supplier, until either such adverse effect or danger is eliminated or Company is reasonably satisfied that Supplier has, within the aforesaid seven (7) Day period, initiated and is diligently pursuing such reasonable action. Supplier shall bear or reimburse Company, as the case may be, for all reasonable, documented, out-of-pocket costs incurred by Company in connection with such reasonable actions taken by Company on behalf of Supplier as provided herein, and shall cooperate in good faith with Company in providing access to the GSDS and any of Supplier’s equipment related to the GSDS or Supplier’s provision of Grid Services to Company, in the event Company elects to undertake such action as provided herein; Supplier shall (i) abandon the GSDS prior to the date sixty (60) days after System Integration Date Deadline or (ii) fail to maintain continuous service to the extent required by this Agreement for a period of seven (7) or more consecutive Days, the last twenty-four (24) hours of which shall be after notice by Company to Supplier that it is not in compliance with this provision, unless such abandonment or failure is caused by Force Majeure or an Event of Default by Company. For purposes of this Section 6.1(a) (Default by Supplier), abandonment of the GSDS prior to the System Integration Date shall mean the failure by Supplier to proceed with or prosecute in a diligent manner the planning, design, engineering, permitting, deployment (including, without limitation, purchasing, accounting, training and administration) and start‑up of the GSDS for a consecutive period of thirty (30) Days, the last ten (10) Days of which shall be after notice from Company to Supplier that it is not in compliance with this provision; Supplier shall fail to meet the warranties and guarantees of performance specified in this Agreement, including but not limited to the agreements set forth in Exhibit I (GSDS Service Level Agreement), taking into account any time allowed in Exhibit I (GSDS Service Level Agreement) for cure; Without the prior written consent of Company, such consent not to be unreasonably withheld, [NAME OF ENTITY OPERATING GSDS] (“Operator”) having been previously approved by Company as the operator of the GSDS, is no longer the operator of the GSDS; provided, however, that to the extent that the grant of consent by Company is dependent upon qualifications to carry out the role of operator, Company’s consent shall be granted if Company is reasonably satisfied that the substitute operator (i) has the qualifications or has contracted with an entity having the qualifications to operate the GSDS in a manner consistent with the terms and conditions of this Agreement and (ii) has provided Company with evidence satisfactory to Company of its creditworthiness and ability to perform its financial obligations hereunder (including such guarantees as Company deems appropriate) in a manner consistent with the terms and conditions of this Agreement. Supplier shall (i) be dissolved, be liquidated, be adjudicated as bankrupt, or become subject to an order for relief under any federal bankruptcy law; (ii) fail to pay, or admit in writing its inability to pay, its debts generally as they become due; (iii) make a general assignment of substantially all its assets for the benefit of creditors; (iv) apply for, seek, consent to, or acquiesce in the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for itself or any substantial part of its property; (v) institute any proceedings seeking an order for relief or to adjudicate it as bankrupt or insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors; or (vi) take any action to authorize or effect any of the foregoing actions; Without the application, approval or consent of Supplier, a receiver, trustee, examiner, liquidator or similar official shall be appointed for Supplier, or any part of its property, or a proceeding described in Section 6.1(a)(6) (Default by Supplier) shall be instituted against Supplier and such appointment shall continue undischarged or such proceeding shall continue undismissed or unstayed for a period of sixty (60) consecutive Days or Supplier shall fail to file in a timely manner, an answer or other pleading denying the material allegations filed against it in any such proceeding; Without the prior written consent of Company, Supplier shall transfer, convey, lose or relinquish its right to own the GSDS to any person; The Security provided by Supplier pursuant to the Security Agreement described in Section 21.2 (Security Agreement) becomes substantially impaired and Supplier fails to cure such impairment promptly upon becoming aware of its existence; Supplier shall fail to maintain in full force and effect throughout the Term a Letter of Credit in accordance with the provisions of Section 21.3 (Letter of Credit) and such failure continues for forty-five (45) Days after written notice of noncompliance with this Section 6.1(a) (Default by Supplier) by Company; Supplier shall fail to perform a material obligation of this Agreement not otherwise specifically referred to in this Section 6.1(a) (Default by Supplier), which failure has or may reasonably be anticipated to have a material adverse effect on Supplier’s delivery of Grid Services to Company in accordance with the terms of this Agreement and which failure shall continue for forty-five (45) Days after written demand by Company for performance thereof; Supplier makes any representation or warranty to Company required by, or relating to Supplier’s performance of, this Agreement that is false and misleading in any material respect when made; or Supplier modifies its GSDS control schema in a manner that adversely affects its obligations to Company under this Agreement.