Common use of Remedy for Seller’s Failure to Deliver Clause in Contracts

Remedy for Seller’s Failure to Deliver. If (a) Seller fails to deliver all or part of the energy (and associated Renewable Energy Credits) required to be delivered as Net Output pursuant to this Agreement, (b) such failure is not excused under the terms of this Agreement or by PacifiCorp’s failure to perform, and (c) such failure is not attributable solely to deficiencies in actual output from the Facility (which deficiencies are governed exclusively by the provision of Section 6.11 and not this Section 10.2.1), then Seller shall pay PacifiCorp within five (5) Business Days after invoice receipt, an amount for such deficiency in Net Output equal to (i) PacifiCorp’s Cost to Cover multiplied by the Net Output not delivered, (ii) additional transmission charges, if any, reasonably incurred by PacifiCorp in causing replacement energy to be delivered to the Point of Delivery, and (iii) any additional cost or expense incurred as a result of Seller’s failure to deliver, as determined by PacifiCorp in a commercially reasonable manner (but not including any penalties, ratcheted demand or similar charges). The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount. In the event PacifiCorp draws on the Default Security pursuant to Section 7.2.4 for any such delivery failure, the delivery failure shall be deemed cured to the extent of the amounts drawn down by PacifiCorp.

Remedy for Seller’s Failure to Deliver. If (a) Seller fails to deliver all or part of the energy (and associated Renewable Energy Credits) required to be delivered as Net Output pursuant to this Agreement, (b) such failure is not excused under the terms of this Agreement or by PacifiCorp’s failure to perform, and (c) such failure is not attributable solely to deficiencies in actual output from the Facility (which deficiencies are governed exclusively by the provision of Section 6.11 and not this Section 10.2.1), then Seller shall pay PacifiCorp within five (5) Business Days after invoice receipt, an amount for such deficiency in Net Output equal to (i) PacifiCorp’s Cost to Cover multiplied by the Net Output not delivered, (ii) additional transmission charges, if any, reasonably incurred by PacifiCorp in causing replacement energy to be delivered to the Point of Delivery, and (iii) any additional cost or expense incurred as a result of Seller’s failure to deliver, as determined by PacifiCorp in a commercially reasonable manner (but not including any penalties, ratcheted demand or similar charges). The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount. In the event PacifiCorp draws on the Default Security pursuant to Section 7.2.4 7.1 for any such delivery failure, the delivery failure shall be deemed cured to the extent of the amounts drawn down by PacifiCorp.