Common use of Commercial Operation of the Facility Clause in Contracts

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. The “Commercial Operation Date” shall be either (i) the later of (x) the Expected Commercial Operation Date, or (y) the date on which Commercial Operation is achieved. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a request for refund of the Construction Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended as provided herein, Seller shall pay COD Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date and shall be paid to Buyer in advance on a monthly basis. A prorated amount will be returned to Seller if COD is achieved during the month for which COD Delay Damages were paid in advance. The Parties agree that Xxxxx’s receipt of COD Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section Error: Reference source not found.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation Notice to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achievedachieved and specifying the “placed in service” date per Internal Revenue Service Requirements of the Facility. The “Commercial Operation Date” shall be either (i) the later of (x) the Expected Commercial Operation Date, [_______________] or (y) the date on which Commercial Operation is achieved. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date [_________] (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Daily Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a the request for refund of the Construction Daily Delay Damages with the first invoice to Buyer after the Commercial OperationOperation Date. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, Buyer shall retain Daily Delay Damages, as it may be extended as provided hereinapplicable, and Seller shall pay COD Commercial Operation Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date and Date. Commercial Operation Delay Damages shall be paid payable to Buyer in advance on a monthly basisby Seller until the Commercial Operation Date. A prorated amount will be returned to On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if COD is achieved any, accrued during the month for which COD Delay Damages were paid in advanceprior month. The Parties agree that Xxxxx’s retention of Daily Delay Damages and receipt of COD Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve the first ninety (90) days of delay in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found 11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to under Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section Error: Reference source not found11.2.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. The “Commercial Operation Date” shall be either (i) the later of (x) the Expected Commercial Operation Date, or (y) the date on which Commercial Operation is achieved. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a request for refund of the Construction Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended as provided herein, Seller shall pay COD Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date and shall be paid to Buyer in advance on a monthly basis. A prorated amount will be returned to Seller if COD is achieved during the month for which COD Delay Damages were paid in advance. The Parties agree that Xxxxx’s receipt of COD Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section Error: Reference source not found.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. Buyer’s failure to respond to Seller’s Notice within five (5) Business Days shall be deemed approval of Seller’s COD Certificate. If Buyer disagrees that Commercial Operation has occurred following receipt of the Notice, it shall within such five (5) Business Day period, deliver to Seller a valid detailed explanation as to why it believes that Commercial Operation has not occurred. The Seller shall then remedy Buyer’s concern, if valid, and the Notice process of above shall repeat until Buyer has approved Seller’s COD Certificate or a deemed approval occurs. Upon Buyer’s approval or deemed approval, Buyer shall provide Seller with written acknowledgement of the COD. The “Commercial Operation Date” shall be either (i) the later of (x) the Expected Commercial Operation Date, or (y) the date on which Commercial Operation is achievedthe COD Certificate has been approved or deemed approved. If the iterative process described above occurs three (3) times or more, either Party may resort to the dispute resolution processes provided for in this Agreement. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a request for refund of the Construction Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended as provided herein, Seller shall pay COD Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date and shall be paid to Buyer in advance on a monthly basis. A prorated amount will be returned to Seller if COD is achieved during the month for which COD Delay Damages were paid in advance. The Parties agree that Xxxxx’s receipt of COD Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found 11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section Error: Reference source not found11.2.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved). The “Commercial Operation Date” shall be either (i) the later of (x) the date that is ninety (90) days before the Expected Commercial Operation Date, Date or (y) the date on which identified in the COD Certificate as the “Commercial Operation is achievedDate”. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty thirty (6030) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, ninety-five percent (95%) of all Construction Daily Delay Damages and Interconnection Agreement Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a the request for refund of the Construction Daily Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended as provided herein, Seller shall pay COD Commercial Operation Delay Damages to Buyer for each day after following the Guaranteed Commercial Operation Date until the Commercial Operation Date and Date; provided that in no event shall Seller be paid obligated to pay aggregate Commercial Operation Delay Damages in excess of the Development Security amount required hereunder. On or before the tenth (10th) day of each month, Buyer in advance on a monthly basis. A prorated amount will be returned to shall invoice Seller for Commercial Operation Delay Damages, if COD is achieved any, accrued during the month for which COD Delay Damages were paid in advanceprior month. The Parties agree that XxxxxBuyer’s receipt of COD Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve unexcused delay in achieving the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found 11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to under Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section Error: Reference source not found11.2 in the event that such unexcused delay exceeds one hundred twenty (120) calendar days.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. The “Commercial Operation Date” shall be either (i) the later of (x) the Expected Commercial Operation Date, or (y) the date on which Commercial Operation is achieved. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a request for refund of the Construction Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended as provided herein, Seller shall pay COD Delay Damages to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date and such COD Delay Damages shall be paid to Buyer in advance on a monthly basis. A prorated amount will be returned to Seller if COD is achieved during the month for which COD Delay Damages were paid in advance. The Parties agree that Xxxxx’s receipt of COD Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section Error: Reference source not found.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. The “Commercial Operation Date” shall be either (i) the later of (x) the Expected Commercial Operation Date, or (y) the date on which Commercial Operation is achieved. Seller shall use commercially reasonable efforts to cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a the request for refund of the Construction Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended as provided herein, Seller shall pay COD Delay Damages to Buyer for each day after the Facility has not been completed and is not ready to produce and deliver Energy generated by the Facility to Buyer as of the Guaranteed Commercial Operation Date until the Commercial Operation Date Date. COD Delay Damages shall be paid for each day of delay and shall be paid to Buyer in advance on a monthly basis. A prorated amount will be returned to Seller if COD is achieved during the month for which COD Delay Damages were paid in advance. The Parties agree that Xxxxx’s receipt of COD Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as BuyerXxxxx’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found 11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right remedies pursuant to Section Error: Reference source not found11.2.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) ), (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. The “Commercial Operation Date” shall be either (i) the later of (x) the Expected Commercial Operation Date, or (y) the date on which Commercial Operation is achievedidentified in the COD Certificate. Seller shall use commercially reasonable efforts to cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Start Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a the request for refund of the Construction Start Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended as provided herein, Seller shall pay COD Commercial Operation Delay Damages to Buyer for each day after the Facility has not been completed and is not ready to produce and deliver Energy generated by the Facility to Buyer as of the Guaranteed Commercial Operation Date Date. Commercial Operation Delay Damages shall be payable to Buyer by Seller until the Commercial Operation Date and Date. On or before the tenth (10th) day of each month, Buyer shall be paid to Buyer in advance on a monthly basis. A prorated amount will be returned to invoice Seller for Commercial Operation Delay Damages, if COD is achieved any, accrued during the prior month for which COD and within ten (10) days following Seller’s receipt of such invoice, Seller shall pay Buyer the amount of the Commercial Operation Delay Damages were paid set forth in advancesuch invoice. The Parties agree that Xxxxx’s receipt of COD Commercial Operation Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve the Commercial Operation Date on or before the Guaranteed Commercial Operation Date, but shall (x) not be construed as BuyerXxxxx’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found 11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of BuyerXxxxx’s default right remedies pursuant to Section Error: Reference source not found11.2.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) all necessary permits have been obtained and all conditions to operate the Facility have been satisfied and complied with in order to produce, sell and transmit Energy, (ii) the Seller receives final permission to parallel from the PTO, (iii) ninety percent (90%) of the Guaranteed Capacity has been completed and is ready to produce and deliver Energy to Buyer, (iv) Full Capacity Deliverability Status has been assigned by the CAISO, and (v) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement Agreement; and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (iivi) Seller has notified confirmed to Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved. The “Commercial Operation Date” shall be either (i) the later of (x) the Expected Commercial Operation [Date, ] or (y) the date on which Commercial Operation is achieved. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date [Date] (as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty (60) days before the anticipated Commercial Operation DateDate and shall confirm to Buyer in writing when Commercial Operation has been achieved. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Daily Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a the request for refund of the Construction Daily Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Commercial Operation Date, as it may be extended as provided herein, Seller shall pay COD “Commercial Operation Delay Damages Damages” to Buyer for each day after the Guaranteed Commercial Operation Date until the Commercial Operation Date Facility has not been completed and shall be paid is not ready to produce and deliver Energy to Buyer in advance on a monthly basis. A prorated amount will be returned to Seller if COD is achieved during the month for which COD Delay Damages were paid in advance. The Parties agree that Xxxxx’s receipt as of COD Delay Damages shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve the Commercial Operation Date on or before the Guaranteed Commercial Operation Date. Commercial Operation Delay Damages shall be payable to Buyer by Seller until the Commercial Operation Date. On or before the tenth (10th) day of each month, but Buyer shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found and (y) not limit Buyer’s right to declare an Event of Default pursuant to Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section Error: Reference source not foundinvoice Seller for Commercial Operation Delay Damages, if any, accrued during the prior month.

Commercial Operation of the Facility. “Commercial Operation” means the condition existing when (i) Seller has fulfilled all of the conditions precedent in Section 2.2 of the Agreement and provided Notice to Buyer substantially in the form of Exhibit H (the “COD Certificate”) (ii) Seller has notified Buyer in writing that it has provided the required documentation to Buyer and met the conditions for achieving Commercial Operation, and (iii) Buyer has acknowledged to Seller in writing that Buyer agrees that Commercial Operation has been achieved). The “Commercial Operation Date” shall be either (i) the later of (x) the date that is sixty (60) days before the Expected Commercial Operation Date, Date or (y) the date on which identified in the COD Certificate as the “Commercial Operation is achievedDate”. Seller shall cause Commercial Operation for the Facility to occur by the Expected Commercial Operation Date (Date, as such date may be extended by the Development Cure Period (defined below), the “Guaranteed Commercial Operation Date”). pursuant to Section 3 of this Exhibit B. Seller shall notify Buyer that it intends to achieve Commercial Operation at least sixty thirty (6030) days before the anticipated Commercial Operation Date. If Seller achieves Commercial Operation for the Facility to occur by the Guaranteed Commercial Operation Date, all Construction Delay Damages paid by Seller shall be refunded to Seller. Seller shall include a request for refund of the Construction Delay Damages with the first invoice to Buyer after Commercial Operation. If Seller does not achieve Commercial Operation by the Guaranteed Expected Commercial Operation Date, as it such date may be extended as provided hereinpursuant to Section 3 of this Exhibit B, Seller shall either: (i) pay COD Commercial Operation Delay Damages to Buyer for each day after following the Guaranteed Expected Commercial Operation Date Date, as such date may be extended pursuant to Section 3 of this Exhibit B, until the Commercial Operation Date and Date; provided that in no event shall Seller be paid obligated to pay aggregate Commercial Operation Delay Damages in excess of the Development Security amount required hereunder; or (ii) provide Buyer with a quantity of Replacement Product (as defined in Exhibit G) equal to the Pre-COD Replacement Product Monthly Amount for the applicable delivery month, for each month following the Expected Commercial Operation Date, as such date may be extended pursuant to Section 3 of this Exhibit B, until the Commercial Operation Date. Seller shall not owe Buyer any Commercial Operation Delay Damages for any day during a month where Seller has provided qualifying Replacement Product to Buyer in advance on a monthly basisthe amount described above. A prorated amount will be returned However, the Replacement Product provided by Seller to Buyer pursuant to this Section 2b of Exhibit B, shall not reduce or otherwise alter the Damage Payment that is owed to Buyer by Seller if Buyer declares an Event of Default under Section 11.1(b)(ii), and further, the value of any such Replacement Product does not reduce or otherwise count towards the cap on Seller’s liability that is described in Section 5 of Exhibit B. If Seller provides Replacement Product equal to the Pre-COD Replacement Product Monthly Amount, including Replacement RA that meets the requirements specified in Section 3.8, for a month that is achieved also an RA Shortfall Month, then such Replacement Product shall excuse Seller’s obligation to pay both Commercial Operation Delay Damages pursuant to this Section 2b of Exhibit B and the RA Deficiency Amount that would otherwise be owed by Seller pursuant to Section 3.8. On or before the tenth (10th) day of each month, Buyer shall invoice Seller for Commercial Operation Delay Damages, if any, accrued during the month prior month. If Seller provides Buyer with Replacement Product pursuant to Section 2b of Exhibit B, Seller shall issue an invoice and Buyer shall pay for which COD Delay Damages were paid such Replacement Product in advanceaccordance with Section 8.1. The Parties agree that XxxxxBuyer’s receipt of COD Commercial Operation Delay Damages or Replacement Product shall be Buyer’s sole and exclusive remedy for Seller’s failure to achieve unexcused delay in achieving the Commercial Operation Date on or before the Guaranteed Expected Commercial Operation Date, but shall (x) not be construed as Buyer’s declaration that an Event of Default has occurred under any provision of Section Error: Reference source not found 11.1 and (y) not limit Buyer’s right to declare an Event of Default pursuant to under Section 11.1(b)(ii) and receive a Damage Payment upon exercise of Buyer’s default right pursuant to Section Error: Reference source not found11.2 in the event that such unexcused delay exceeds one hundred twenty (120) calendar days.